“Gender equality is a human fight, not a female fight.”

– Freida Pinto

ACTUAL CASE HISTORY: Gerald, a sales team supervisor, regularly made jokes about sex in team meetings, was known to often touch female team members “by accident,” and held private meetings with female sales team members in his office, with the door closed.

Two female team members were rumored to have complained to HR of Gerald’s habits, their discomfort with it, and then simply seemed to “disappear,” that is, they did not return to work on Monday morning, without any of the sales team members hearing from them that either had a new job elsewhere.

Tom, a male sales team member, was called into HR, where he was met by an outside attorney working for the company, who insisted on interviewing him. The interview, which lasted almost two hours, seemed to focus on what Tom observed, and – quite surprisingly to Tom – why he did not report his observations to HR, as is now required by new company policies, about which he was not aware.

Barbara, Gerald’s supervisor, was also interviewed by an outside attorney for the company, and the questions asked to her focused – to her surprise – on what she had done to train her teams on anti-harassment policies and practices, and to regularly assess the quality of the work environment of her reports, as is now required by new company policies about which she was not aware.

Cary, who headed up Human Resources for the Sales Division, was also interviewed by the investigator, whose many questions focused – to Cary’s surprise – on what training and ongoing assessment he had initiated of the employee morale of Sales Division employees, as is now required by new company policies of which he was not aware.

New thinking, new limits, new policies, new expectations, new accountabilities, new risks, new consequences. There are a lot of new things to learn and keep in mind.

LESSONS TO LEARN: The #MeToo Movement has been something of an earthquake in the workplace, and it continues to have a wide variety of “aftershocks.” These “aftershocks” are not only what you see, hear or read about. It’s something less visible, more visceral. It’s about what is no longer acceptable, no longer tolerated, no longer joked about, no longer without substantial consequence. It’s not about a law; it’s more about what is simply not tolerated. It seems to be one of those epic steps forward in societal norms that, hopefully, will never be reversed.

The #MeToo Movement has clarified that freedom from abuse at work is something human right, a right to be free from a kind of deep humiliation, physical intimidation, outright fear and human exploitation. This web post covers just one of its many facets: how it has grown from a laugh-laden phenomenon to one that can not only ruin your career, but even put you in jail. It is serious, and needs to be taken seriously.

As a general matter, employers have not before been held accountable for harassment at the workplace of which they were not aware. So, if you did not complain, you had no effective right, and your abuser had no effective responsibility. That seems to be changing, and employers are increasingly concerned about the cost of being caught unaware. . . Yes, it’s a dollar and cents issue, too. Employers are no longer ignoring #MeToo issues, but are now seeking to prevent them, with their own interests in mind.

Employers, managers and colleagues are all increasingly being held responsible for not doing something to stand up, and face down, those who harass at work. According to a recent Bloomberg Law report, law firms are being hired to engage in a record number of investigations into employee harassment complaints. There has also been a sharp increase in the number of employers who are conducting preventive training to prevent workplace harassment in the first instance, and to come up with better ways of handling it if and when it does rear its head.

The lesson is clear: things are changing, and they require thoughtful consideration of how you need to adapt with those changes, or be confronted with potentially career-ending “news.” There is no simple, universal “rulebook” but an evolving one that gives every employee good reason to keep her or his mind wide open for what and how the new workplace requires of employees.

If you are not convinced, just look at what has happened to so many CEO’s, so many famous and wealthy men like Mr. Weinstein, Mr. Cosby, Mr. Lauer, Mr. O’Reilly, and so many others who were blind, oblivious or overconfident about their ability to avoid the new accountability that is @MeToo.

WHAT YOU CAN DO: Having worked on workplace harassment issues for many years, the following 10 points are among those that would be best kept in mind. They are steps that are among those I would suggest all employees consider doing to be, and to be perceived as, part of the solution, and not be, or be wrongly perceived to be, part of the problem:
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Question: Recently, a female colleague reported to my Department Head that she felt she was being harassed. I received an email from someone in “Employee Relations” asking that I meet with her to be interviewed as part of an investigation.

What’s the difference between Human Resources (“HR”) and Employee Relations (“ER”)?

She said she is a lawyer, but that she does not represent my employer. Could that be?

Jessica
La Vergne, Tennessee

Answer: Dear Jessica: Your question is a very common one. It is wise of you to ask this question because it is always prudent, before you speak with someone about something that may be important, that you try to understand who they are, what they seek, and what their interests may be in speaking with you. Here are my thoughts:
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“ To err is human.
To blame it on someone else shows management potential.”

– Unknown

ACTUAL CASE HISTORY: Gary, 44, was a staff writer for an online entertainment industry blogsite. Most of his writing in recent years was about trends in subscriptions to live streaming music. His special expertise was in data collection and analysis to spot trends, and he was widely known as an expert in that area.

Gary’s analysis of live-streaming subscriptions lead him to the firm conclusion that certain of the largest live streaming music companies – indeed, the largest ones in the music industry – were losing more and more subscription customers to their smaller, more focused, and nimble competitors. When he wrote a significant article about this trend, his editor refused to publish it, claiming that it was replete with illogical assumptions on Gary’s part. This had never happened to Gary before in his 20 or so years as an entertainment industry writer.

Separately, two colleagues approached Gary in confidence, and shared with him that the blogsite’s editor had admitted to them that she declined to post his article because she was afraid of backlash – in the form of less advertising – from the larger streaming services, who were the blogsite’s “bread and butter.” They even shared an email in which the editor claimed to have been pressured to do so by the blogsite’s owners.

Gary then submitted to Human Resources a formal complaint of breach of his contract provision that forbade editorial decisions being made on financial considerations, and also that this was a breach of ethics and company policy. A two-week “investigation” by the blog site’s outside lawyers concluded only that “We did not find that anything improper has taken place,” despite the emails, the witnesses, and the circumstances that clearly showed otherwise.

Only after Gary brought the situation to the attention of the company’s CEO and Board of Directors did real progress toward addressing the problem begin to take shape.

LESSON TO LEARN: The most important lesson my mother taught me is that, “Without accountability, you really can’t expect responsibility.” Let’s face it: if failure to pay your taxes was not illegal, and no one checked whether or not you did, would you really do so? (As a lawyer, I must advise you that you need not answer that.)

Let’s all simply accept the reality that the same thing happens at work: many managers will not do the “right thing” if no one will hold them accountable for their failures to do so. And that is why they often hire “investigators,” not to determine the truth but to protect themselves from it.

Over my 35 years as an advocate for employees, many times I’ve helped clients file claims or complaints with their employers’ HR department, compliance department, and legal department of wrongful behavior against them by means of (a) discrimination, (b) harassment, (c) hostility, (d) retaliation, (e) dishonesty, (f) fraud (especially regarding Performance Improvement Plans), (g) threats of violence, and other misconduct by their managers or colleagues. In past years, some of those investigations found that the complaints were fully justified; other times, it was concluded that there was no basis for the complaint. The reasons given for not finding a basis for the complaint were often shared, and included (i) a misunderstanding of what was said or done, (ii) the alleged “offense” was only a very minor transgression, and (ii) the alleged “offense” may have taken place, but it was done in error, that is, without wrongful intention.

Increasingly, however, employers’ investigators – whether Human Resources, in-house Legal Staff, Employee Relations, or external investigators, such as law firms – never, ever seem to find any wrongdoing. It’s as if we now live and work in a “world of angels.”

That is because “investigators” are almost always tasked not with determining the truth, but rather with three specific objectives, namely, to:

1. Gauge Risk: To gauge the amount of risk posed by the complaining employee and his or her complaint, to both senior management, personally, and the organization or company;

2. Diminish Risk: To frustrate the employee’s efforts to exercise his or her legal rights, determine the truth, protect themselves, and hold the “guilty” persons accountable for their wrongdoing, misconduct or negligence; and

3. Divert Accountability: To ensure that no one – and most of all members of senior management – are not held accountable for wrongdoing, what we call brought into the “zone of accountability.” Said a bit differently, making sure that “the buck” does not stop on anyone’s desk.

And, it is close to never these days that investigators are willing to share the reasons “nothing wrong was found,” because that, itself, would raise a risk. This is so even when they are presented with such strong evidence of wrongdoing as, for examples, (a) incriminating emails, (b) damaging documents, (c) credible witnesses, (d) damning circumstances, and even (e) admissions of wrongdoing.

Sound a bit paranoid? Well, consider that Wells Fargo Bank internal and external investigators “investigated” internal wrongdoing for five years and fired over 5,000 of their branch personnel for opening up non-existent accounts, but found not a single thing wrong, in error, or even questionable about the conduct of senior management who both (a) directed, coordinated and collected bonuses of tens of millions of dollars as a result, and (b) were not even criticized, until Congress had open hearings about it and exposed this gross dishonesty and rank hypocrisy.

The ultimate issue is this: “Who is investigating the investigators?” The “secret” to truly resolving this dilemma is to make “someone in authority” accountable for what has taken place, and that “someone in authority” is almost always your employer’s senior-most management. When they are brought into the “Zone of Accountability,” you have significantly more leverage, which can be put to significantly better effect.

WHAT YOU CAN DO: These are the several steps you should consider taking in order to get past, over and beyond such “blindness to wrongdoing” on the part of “investigators” of any complaint you file at work:
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“ For those who have fought for it,
life has a flavor the protected will never know.”

– Author Unknown

ACTUAL CASE HISTORY: Are you or a loved one a member of the U.S. Armed Forces? National Guard? Reserves? Being called up for military service or training? Considering signing up for service or training?

If so, there is a U.S. federal law that you should know about. It provides very valuable employment-related legal rights to members of the armed forces and other uniformed services who are absent from work due to military service or training. The name of the law is the Uniformed Services Employment and Reemployment Rights Act, commonly called “USERRA.” USERRA seeks to minimize disruption to the lives of service members by ensuring that they are able to retain civilian employment and benefits while serving their country.

Simply put, USERRA provides those who perform military service (a) continuation of certain benefits during their military service, including health care coverage, (b) re-employment rights to employees of civilian employers who are returning from military service or military training, and (c) certain rights and benefits upon return, including seniority.

The idea underlying the USERRA law is to ensure that serving your country is as least damaging to your career as possible, while balancing the varied interests of the military, the employee and the civilian employer.

LESSON TO LEARN: The United States holds its military, including its members of its military and all uniformed services, in high esteem. Not only does the U.S. each year spend more on its military budget than do the next 17 countries combined, but it does a lot to care for service people during and after they serve.

One thing the U.S. does for its military service members that many are not aware of is that it gives them legal rights to (a) continued benefits during their military service, (b) re-employment in their civilian jobs after their service, and (c) no loss of accrued pension time, tenure and the like after their military service.

Those who train and/or serve in the uniformed services, as well as their loved ones, should take the time to understand these very valuable legal rights. They are far and away above any such rights given to others in American society.
The three most important things that you need to understand and take away from the Q’s and A’s below are:

(1) NOTICE: It is important that you give written pre-departure notice, and timely pre-return notice, as well, to your employer;
(2) RECORDS: Service members are advised to do all they can to maintain military records, including signed orders, that may be helpful in asserting USERRA rights; and
(3) RETURN TIME: Depending on the length of your absence for service time or training, the service member will be required to report back to work within a specified period of time.

WHAT YOU CAN DO: Take the time to understand the legal rights provided to members of the U.S. uniformed services, just in case someone you know and care about may be affected. The following are the most frequently asked questions about USERRA, and the answers, including who is eligible, what USERRA rights are, and how the law works:
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Question: I am pregnant and my doctor wants me to work just 25 hours a week, but my employer told me that they need someone who can work 40 hours a week. So, they gave me separation papers to sign.

Is that legal? Do they have to hire me back after I have my baby?

Larisa
Palmyra, Maine

Answer: Dear Larisa: Pregnancy and pregnant women are given a special status in our society and our laws, and both are highly protected. In so many cases, like yours, however, that protection is surely needed, because so many employers view pregnancy as an inconvenience for them.

You may want to try to keep your job, or enhance your severance, by asserting your rights before signing the separation papers. Here are my thoughts:
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