TRI-COUNTY SHRM CONFERENCE

1. TRI-COUNTY SHRM CONFERENCE Bullying In The Workplace – A New Frontier of Liability ************** 2011 UPDATE Recent Legal, Legislative, and Newsworthy Developments Since 2010 David E. Block, Esq. Jackson Lewis LLP 2 S. Biscayne Boulevard, Suite 3500 Miami, FL 33131 David.block@jacksonlewis.com

2. 2011 UPDATE Recent Legal, Legislative, and Newsworthy Developments Since 2010

3. TRI-COUNTY SHRM CONFERENCE NEW REGULATIONS AND ADMINISTRATIVE RULINGS

4. NLRB Posting 4

5. NLRB Activism • NLRB reconsidering standard for allowing employers to deny access to union organizers. • Greater focus on “protected, concerted” activity, especially with social media, e.g. FaceBook

6. TRI-COUNTY SHRM CONFERENCE ADA

7. TRI-COUNTY SHRM CONFERENCE U.S. DEPARTMENT OF LABOR REVISES TIP CREDIT – RULE

8. TRI-COUNTY SHRM CONFERENCE NOTICE TO EMPLOYEES OF TIP CREDIT

9. TRI-COUNTY SHRM CONFERENCE • You will receive an hourly wage of $__________ from [the company]. • [The company] will credit $__________ per hour toward your wages based on the tips you receive. This credit cannot exceed the tips you actually receive. Your hourly wage plus this credit must be at least equal to the minimum wage. • All tips you receive must be retained by you, except for tips contributed to a valid tip pooling or tip sharing arrangement limited to employees who customarily and regularly receive tips.

10. The tip credit will not apply to any employee who has not been informed of these requirements. • By signing this form, I hereby acknowledge that I have read this Notice to Tipped Employees and that I have received a copy of this document for my reference. Employee’s Name (Printed) Date Employee’s Name (Signed)

11. TRI-COUNTY SHRM CONFERENCE SUPPLEMENTAL NOTICE TO TIPPED EMPLOYEES • Beginning on [date], you will receive an hourly wage of $__________ from [the company]. • Beginning on [date], [the company] will credit $__________ per hour toward your wages based on the tips you receive. This credit cannot exceed the tips you actually receive. Your hourly wage plus this credit must be at least equal to the minimum wage. • By signing this form, I hereby acknowledge that I have read this Supplemental Notice to Tipped Employees and that I have received a copy of this document for my reference. Employee’s Name (Printed) Date Employee’s Name (Signed) Date

12. TRI-COUNTY SHRM CONFERENCE SUPREME COURT RULINGS

13. TRI-COUNTY SHRM CONFERENCE ARBITRATION vs. NO CLASS ACTIONS AT&T Mobility LLC v. Concepcion, ____ U.S. ____ (04.27.11) (Supreme Court holds California rule prohibiting class action waivers in arbitration agreements is pre-empted and invalidated by FAA).

14. TRI-COUNTY SHRM CONFERENCE Associated Retaliation Claims Employee fired because his fiancé stated a claim for unlawful retaliation. Thompson v. North American Stainless, ___ U.S. ___ (01/24/11).

15. TRI-COUNTY SHRM CONFERENCE CAT’S PAW LIABILITY Holding that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Staub v. Proctor Hospital, ___ U.S. ___ (03.01.11)

16. TRI-COUNTY SHRM CONFERENCE BACKGROUND CHECKS ON GOVERNMENT CONTRACTOR DO NOT VIOLATE THE CONSTITUTION Unanimously ruling that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy. NASA v. Nelson, ___ U.S. ___ (01.19.11).

17. TRI-COUNTY SHRM CONFERENCE

18. MEETING MR./MS. RIGHT Match.com Litigation Could be Coming to Your Company

19. match.com • The company is in the business of introducing individuals for the purpose of dating.

20. match.com • Is match.com all that different than employer.com looking for an employment relationship?

21. match.com THE FACTS • Jane Doe has used match.com for 5 years. • She is introduced to “X” via match.com. • Date #1 goes fine. • Date #2 turned violent. • “X” had a history of sexual battery convictions.

22. match.com • Is match.com responsible?

23. TRI-COUNTY SHRM CONFERENCE Bullying In The Workplace – A New Frontier of Liability

24. What We Will Discuss • What is bullying • Impact of bullying on the workplace • Recent legislative and court updates • Strategies to address bullying in the workplace • Examples and scenarios

25. What is Bullying? • Mistreatment severe enough to compromise a targeted worker's health, jeopardize her job and career, and strain relationships with friends and family. • It is a laser-focused, systematic campaign of interpersonal destruction. • It has nothing to do with work itself. It is driven by the bully's personal agenda and actually prevents work from getting done. • It begins with one person singling out the target.

26. Statistics • 35% of American workers reported being bullied now or at sometime in their careers • 15% reported observing bullying • 40% of targets never tell their employers • 43% of bullying from coworkers • 36% Supervisors • 12% Customers • 5% Subordinates • 4% Others

27. Statistics • 62% of bullies are men • 58% of targets are women • 68% of bullying cases involve the same gender bully and victim • Women target women 80% of the time -2010 WBI U.S. Workplace Bullying Survey

28. A Mirror Image • Bullies bully and victims succumb to bullying often for the same reasons: • Lack of self esteem • Power dynamics • Familial patterns of behavior

29. Who Is Targeted? • Competent employees because bullies see them as threatening. • Good natured employees because bullies see them as weak. • Though motivations vary, bullying often stems from narcissism, jealousy and a need for control. • Consequently, bullies tend to target non-confrontational, intelligent and popular coworkers to tear them down or even destroy their careers within the company.

31. How Does it Work? Verbal Behavior Non Verbal Behavior Ignoring contributions Consistent failure to follow up Excluding employee from meetings, social gatherings The silent treatment Playing mean pranks Treated rudely Consistent late arrivals to meetings Unreasonable demands • Flaunting status • Shouting • Swearing/foul language • Spreading gossip • Blaming employee • Threatening job loss • Excessive/unwarranted criticism • “Chilling” expression of opinions • Put down in front of others

32. Confronting the Bully • Many employees fear confronting the bully • Concerns include: • Retaliation • Being ostracized by co-workers • Forced out of job

33. Business Costs of Bullying • Medical and workers’ compensation claims • Lawsuits • Indirect costs • Decreased productivity • High turnover • Absenteeism • Poor customer relationships • Low morale

34. Effects of Bullying • Psychological-emotional injuries • Debilitating anxiety, panic attacks (>80%) • Clinical depression: new to person or exacerbated condition (39%) • PTSD (30% of targeted women; 21% of men) • Some economic harms include... • Forced to transfer from a job (13%) • Constructively discharged (24%) • Target quits to reverse decline in health (40%)

35. Bullying or Protected Status Harassment? • Bullying is “status blind” • To be considered harassment, it must violate the target’s civil rights and the target must be in a “protected status” group, e.g.: • Race • Color • National Origin • Sex • Age • Disability • Veteran Status • Genetic Information • Ancestry • Pregnancy • Religion

36. When Bullying Turns Violent • Examples of workplace violence: • Verbal threats to inflict bodily harm • Threat may be vague or perceived • Attempts to cause physical harm • Verbal harassment • Disorderly conduct • Bringing weapons to the workplace

37. Threats • Direct Threats • “I’m going to beat you up” • Conditional Threats • “If you tell anyone, I will hurt you” • Subjective, subtle • Veiled Threats • Menacing looks • Difficult to document

38. Legislative Efforts

39. Workplace Bullying Claims • Actionable bullying will present as: • Discrimination • Harassment • Retaliation • Infliction of emotional distress • Defamation • Assault/Battery • Constructive discharge • False imprisonment

40. Success of Lawsuits • Thompson v. Tracor Flight Systems, Inc. (California 2001) • Affirmed lower court decision for the plaintiff, where a jury had found a continuous pattern of conduct that resulted in a hostile working environment. • Thompson testified that her general manager “seemed agitated with her all the time” and that he used the term “wetback” in discussion with her, knowing that she was Mexican. • Court ruled that a reasonable employee in Thompson’s position would have been compelled to resign her employment.

41. Workplace Bullying – The Hostile Working Environment • EEOC v. National Educ. Ass’n Alaska (9th Cir. 2005) • Male supervisor yells at female employees, invaded their personal space, and used foul language • Court of Appeals held: • Equal opportunity harasser defense questionable • Harassing conduct need not be motivated by the intent to discriminate against females. • Not require facially sex-specific conduct • Ultimate question is whether females are exposed to disadvantageous terms or conditions of employment to which male employees are not exposed • Jury to decide if supervisor was more abusive and treated females worse than males

42. Success of Lawsuits • Raess v. Doescher(Indiana Court of Appeals) • Affirmed lower court decision in favor of the plaintiff, who was awarded $325,000 for a claim of assault. • Raess, a cardiovascular surgeon, had advanced on Doescher, a perfusionist, with clenched fists, and popping veins, shouting “you’re finished, you’re history.” • Expert witness (Workplace Bullying Institute) categorized the event as workplace bullying. • Appeal affirmed that the phrase “workplace bully” is entirely appropriate in presenting to a jury, and bullying may be considered an intentional form of infliction of emotional distress.

43. Success of Lawsuits • Noonan v. Staples (1st Cir. 2008) • Manager claimed he was humiliated when his manager sent a mass e-mail to 1,500 employees, saying that he had been fired for violating the company's travel & expense policy • Court ruled that the e-mail was meant to single out & humiliate him, & the company should not have identified him by name (even though the information was true)

44. Preventive Strategies

45. Is Your Workplace Full of Bullies? • Success at all costs • Strong personalities and aggressiveness are valued • Personal friendships take precedence over business decisions • Employees are motivated by fear

46. Signs of Workplace Bullying • Decrease in production • Increase in resignations/transfer requests • Increase in hotline calls and complaints • Increase in work schedule changes

47. Is Bullying Present At Your Workplace? • Survey bullying-tolerance level at the workplace • Absenteeism – why? • Any recurring issue in specific department or with a specific supervisor? • Categorize employee turnover data • Any trend or outlier terminations in a specific department or supervisor • Expand issues covered in exit interviews • Cover soft workplace environment issues • Cover effectiveness and interpersonal relations of supervisor

48. Is She A Bully? • Challenging authority • Regularly becoming argumentative • Alienating clients • Originating and spreading lies • Swearing excessively • Making verbal threats • Blatantly disregarding organizational policies and procedures

49. Bully v. Tough Boss Bully Tough Boss Objective, fair and professional Self-controlled and unemotional Performance-focused Organizationally oriented • Frequent misuse of power and authority • Focus on personal self-interest • Prone to emotional outbursts • Often inconsistent and unfair in their treatment of employees

50. What Do Juries Expect? • Articulated policy • Prompt response, including evaluation of facts and investigation • Take reasonable action to prevent bullying and to put a stop to it when become aware of such conduct