“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:
Read the rest of this blog post »

“The pessimist is disappointed by the direction of the wind.
The optimist is certain it will change.
The realist adjusts the sails.”

– Unknown

ACTUAL CASE HISTORY: This really happened to me on the first day of my second job as an associate attorney:

I was wearing a new suit and a favorite tie that day, but because it was warm and my shirt collar was a bit tight, I undid my top shirt button and pushed my tie up to keep my collar near-closed.

A meeting had been called by the firm’s senior partner to introduce me and two other new attorneys to the legal staff. There were perhaps thirty attorneys sitting in a large conference room. I had been interviewed by the senior partner six weeks earlier, and he had been quite gracious, warm and engaging. He told me something like “Alan, you are clearly the person we want and need for this job.”

When the senior partner arrived, he sat at the head of the large, shiny, wooden conference room table, and began the meeting. Each of the three of us who were on our first day were asked to come forward to be introduced. When I was called, I stood up, walked to the head of the conference room table, stood next to the senior partner, and smiled.

Without saying a word the senior partner moved closes to me, grabbed my neck with his right hand, buttoned my collar with one hand – scraping it deeply as he did – and said, “We button our top buttons here.” As he did so, one of his finger nails scratched my neck quite deeply. He then went on to introduce me. The rest of the day I worked with several small blood stains on my collar and tie. I decided then and there, on that first day, to seek another job at another firm, which I secured about a month later.

Should I have gone to HR to complain? I didn’t do so, thinking only to myself, “Just find a new job and get the heck out of here,” which is what I did within six weeks or so. Though it was many years ago, and standards of conduct have changed, even then it was an unusual departure from commonly recognized standards of acceptable workplace conduct. At least I think so.

LESSON TO LEARN: So many people come to me after an “unusual event” or “bad treatment” at work with the question, “Should I report this to Human Resources?” It is always a hard call to make. Why? Because there are always so many significant “pro’s and con’s” in doing so, or not doing so.

In a perfect world, any kind of misconduct should be reported to those whose job it is to deal with such issues. But, we don’t live in a perfect world. No matter what anyone tells you, what you say to your Human Resources representative will be shared with others, quite possibly the person whose misconduct you are reporting, or his/her managers, or even friends. Though retaliation in the workplace is almost always prohibited by company policies, and often by the law, retaliation in one form or another is so common that you can almost count on it rearing its ugly head in one form or another.

Pro’s: On the one hand, if you report misconduct to Human Resources, there is a good chance the misconduct will be halted, at least in the short term. Chances are pretty good that, at the least, a warning will be given to the person in question, formal or informal. Doing so also gives you certain legal rights, and future credibility if needed in the future. No one can ever say “If it was such a problem, why didn’t you report it?”

Reporting misconduct to Human Resources gives HR the legal obligation to at least look into the report. And, if the misconduct is repeated or gets worse, your employer will have legal liability to you, which they would not have if you failed to make a report. I can’t tell you how many times I have told clients: “It would have been helpful if you had objected to this, or even reported it, in an email.”

Con’s: On the other hand, if you report an incident to Human Resources, the fact that you did so will undoubtedly become known to the person whose conduct you reported or complained of, because Human Resources must communicate with them as part of its investigation. Never, ever, ever think that you can say to Human Resources, “I am reporting this to you, but I want you to keep it confidential.” That is like telling the police the name of a person who you know committed a robbery, and asking them to promise not to speak with that person.

Additionally, reporting an event of misconduct can pour cold water on an otherwise productive relation, either with the person who engaged in misconduct, and perhaps, too, his or her friends. And, too, if someone makes a lot of complaints to Human Resources, their complaints start to lose credibility after a while. Those viewed to be “constant complainers” generally don’t go far or last long.

Why’s and Why Not’s: It is sad, but undeniable: filing a report, complaint or objection with Human Resources can be a risky thing to do. Should it be? Never. But it can be, that is for sure. And doing so when not truly needed may diminish your ability to do so in another circumstance when it is truly needed. Would you believe a complaint from an employee if he or she made a new complaint, about a new person, each and every day, for a year? Of course not. Judicious use of your ability to go to HR is a must.

One thing must be borne in mind: Human Resources representatives are NOT to be presumed to be “on your side.” Their very job description is clear that they are always “on management’s side,” which might or might not be, depending on the facts and circumstances, “on your side,” too. Human Resources representatives are surely not your “friend,” or your mom, or your lawyer, or any kind of “company police officer.” Their job is not to bring about fairness or to protect employees but, as it says in their title, to “manage human resources.”

So, there are “pro’s and “con’s” in both reporting and not reporting an incident to HR.

The truly best answer to the question “Should I report this to HR?” is “Maybe, depending on the outcome of a careful and thoughtful consideration and weighing of the “pro’s and con’s” with a strong emphasis on the word “careful.”

In reading this newsletter, please bear in mind that nothing at all in this newsletter is meant to suggest that you should not take steps that are needed to protect yourself, or that you should ignore any company requirements that you look the other way when you observe impropriety. Rather, we seek to help you make the best decision regarding whether or not to report, object or complain.

WHAT YOU CAN DO: Here are eleven considerations to weigh before deciding your own course of action if an incident of misconduct or impropriety takes place either toward you, or in some way involving you, at work:
Read the rest of this blog post »

What is the meaning of:

“Letter of Education”?

“Letter of Education” generally means “You did something wrong, perhaps without knowing it; just don’t let it happen again.” It means that you broke a rule, generally not a rule serious enough to get you fired, but serious enough to give you a written warning. And – and here’s the “kicker” – to be placed into your Human Resources file.

It is like a “slap on the wrist” that leaves a “permanent scar.” It is like a speeding ticket that might one day increase your auto insurance premiums, or even cancel your auto insurance coverage.

Because it is in your Human Resources file, a Letter of Education can be used to damage your interests, because it can be taken into account in future decisions regarding (a) compensation, (b) promotion, (c) retention or layoff, and (d) termination for repeated violations. Also, if in a future interview “Have you ever received a sanction, penalty or letter of education?” you will have to explain this one .

For those who are registered securities representatives, a Letter of Education might be reported to regulatory authorities during your employment, or upon your departure in what is called a Form U-5. These are particularly sensitive and potentially troublesome.

Depending on the nature and severity of the “offense,” receiving a Letter of Education may be a very mild response or a severe response, to what it is you are alleged to have done. Regardless, because they may well have an effect on your future, they need to be taken seriously.

What is the right response to receiving a Letter of Education? That depends on many factors. In general, though, in light of the fact that a Letter of Education represents a negative “paper trail,” if and when appropriate, they ought to be either vigorously opposed, (ii) further explained or (iii) respectfully accepted with an explanation.

Don’t get crazy over receiving a Letter of Education, but don’t be complacent, either.

© 2013 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

 “Few are guilty,  
but all are responsible.”

 -       Rabbi Abraham Joshua Heschel

ACTUAL “CASE HISTORIES”: Manny and Lorenz were our firm’s first two clients residing in Iraq. Working as Field Operations Managers for a large U.S.-based defense contractor headquartered in Dallas, Texas, they were assigned to road building projects on the outskirts of the oil drilling area outside the northern Iraqi city of Irkuk. They each had done two tours of U.S. military duty stationed in Iraq, so they were both comfortable with the overall environment, and even knew the local dialect.

Manny and Lorenz were responsible for ensuring that necessary supplies for local road building projects were always on hand, or at least readily available. Without supplies on the ready, salaried construction crews and leased construction equipment could sit idle along the roadway for weeks at a time. And the longer workers and equipment stood idle, both tended to simply “disappear,” never to be seen again.

Sourcing, ordering and storing necessary road building supplies were not difficult tasks. The hard part of the job was gaining necessary “permits,” “approvals” and “paperwork” from local officials, all of whom had minimal salaries but all of whom drove new Mercedes Benzes and had palatial homes. You see, gaining necessary “permits,” “approvals” and “paperwork” required paying “gifts” to local officials, almost always in the form of duffle bags full of U.S. currency. In fact, nearly each shipment of supplies arriving from the U.S. included a shipment of currency, Defense contractors really had no choice but to give “gifts” in this way; local custom and culture made it an absolutely necessary practice in order to get things done. 

The only difference between road building supplies and “currency supplies” was that, while road building supplies were always carefully tracked and inventoried, supplies of currency were a different matter. Manny and Lorenz were under the strictest of orders not to keep any records whatsoever of cash “gifts” for “legal reasons.”   

As often happens everywhere in the world among local politicians vying for control of what each considers to be their own “territory,” a dispute arose among two of the local political chieftains, only this one elevated into armed conflict. As a result, Manny and Lorenz were instructed to return temporarily to the company’s central location in Baghdad. 

It was in Baghdad, that Manny and Lorenz were instructed to meet with the company’s attorneys who had flown in from Dallas to “conduct local interviews.” After an hour of rather vague discussions, Manny and Lorenz had their company ID’s taken, their company cell phones and laptops taken, and were told they were fired for “major theft.” It turns out that one of the disputing local “dignitaries” had run low on weapons, and demanded help from the local U.S. military commander, claiming that they had been promised money and weapons by Manny and Lorenz, which was 100% untrue. Nonetheless, the company attorney sheepishly told them, “corporate needs cover.” 

With little money, no jobs, demands they “return the stolen $250,000,” and facing the real likelihood of a terrible time getting new jobs, they found our firm on the internet. Fortunately, as is almost always the case, their corporate employer had a significant office in New York, was listed on a New York-based stock exchange, and so was subject to New York Courts. Although, as is common in resolution of these disputes, only negotiation – and not litigation – was necessary. 

Fortunately for Manny and Lorenz, we were very familiar with the Foreign Corrupt Practices Act, a U.S. federal law that strictly prohibits the bribing of government and other officials outside the U.S. to gain local business advantage. Fortunately for Manny and Lorenz, we were familiar with the fact that the U.S. Justice Department and SEC have both made the Foreign Corrupt Practices Act a priority in their prosecutions, not only imposing significant fines and penalties sometimes in the hundreds of millions of dollars, but also at times bringing criminal prosecutions against corporate Officers and Directors, alike.  

Most fortunately for Manny and Lorenz, their personal cell phones had both emails from company officials discussing the currency “gifts,” and a tape recording of the large law firm attorney admitting that “corporate” was fully aware of, and complicit with, the “currency gifts.”   

Through aggressive and entirely legal negotiating with their employer’s corporate attorneys, we were able to free both of our clients from claims against them, the looming career and reputational damage they faced, the scapegoating plans taking shape, and the loss of their contractual rights to continuing salary and benefits, as well as severance.   

End result? Manny and Lorenz both received (a) first class airfare tickets back to the U.S., (b) payment for their full contract salaries and benefits, which were scheduled to run another 14 months, and even (c) substantial severance packages, which each used to go into their own businesses. 

LESSON TO LEARN: The Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1) is a U.S. federal law that every employee who works for an employer doing business outside the U.S. really needs to know about, and be aware of. 

The first reason is simple: if you do any business outside the U.S., you need to understand that U.S. laws may still govern what you do, and how you do it. Those include U.S. laws, even if you are engaged in business outside the U.S. They might even make what your employer does either illegal, or criminal, in the U.S.    

The second reason is a bit ominous: because many companies feel that they must bribe local officials in order to compete for business in certain countries outside the U.S., they also often feel a need to find someone to blame – that is, to be a scapegoat – if the U.S. Justice Department or Securities and Exchange Commission (“SEC”) investigate, litigate or even prosecute them. Sad as it may be, “scapegoating” has been a survival technique for those who manage large groups – in order to avoid personal accountability – for many, perhaps even thousands, of years. 

The third reason is the most important reason: without your doing anything out of the ordinary – such as providing customers with free airline tickets or travel accommodations – it could get you fired, fined, or even jailed. 

I told you it was important. 

WHAT YOU CAN DO: Here are the Eleven Essential Points you need to know about the Foreign Corrupt Practices Act (sometimes called the “FCPA”) if you, your employer, any of its subsidiaries or affiliates do business outside the U.S.:  Read the rest of this blog post »

Question: My HR Director has given her husband, who is a registered sex offender, an ID to our company where there are women working alone at night. He is not an employee and can come and go as he pleases with this ID. 

She is very cold to all of us, and hires only her friends and puts them in high positions. 

HR does ID and criminal checks on all of us, yet gives her husband an ID to come and go as he pleases when he has a record. 

Do I have a case to make a complaint? To get her fired? 

Aaron
Los Angeles, California

Answer: Dear Aaron: There is no question about it: you have a right to a safe workplace, and so do your co-workers. Here are my thoughts:  

1. Every employee has a right to a safe workplace, and to be free from potential or likely harm. Both state and federal laws make it quite clear that every employee has a right to a safe workplace, and our societal standards for what constitutes a “safe workplace” are getting higher and higher each day, as we read more and more about unfortunate events of workplace violence. Employees are increasingly aware of these legal rights, and so are increasingly exercising them, as they well should.    

 2. For this reason, every employee has a right to (i) report, (ii) complain of, and (iii) demand protection from known, likely and potential workplace risks to their well-being. And, not only does an employee have the right to report known or likely dangers to workplace safety, but it has become almost a moral – if not legal – obligation to do so, just as it would be for an employee to report (a) chemical spills, (b) fires, and (c) collapsing roofs, at work.  

I might suggest that you first look over your Employee Handbook, HR Manual or company policies to determine how such a complaint should be addressed, for following proper procedure can often help in such matters. 

At the same time, I would caution you against making any such complaint by use of spoken words. No matter what, even if you are required to report and complain of such matters by spoken word, or a telephone hotline, I strongly urge you to use, also, email, for in using an email (a) what you expressed, (b) how you expressed it, (c) who you expressed it to, and (d) when you expressed it, are all a matter of record.   

3. However, every person must be careful about saying or writing things about others that just might be false, because that could be defamation. When an employee reports what he or she believes to be facts about a person who they believe has shown a likelihood to be violent to another person, great care must be taken in doing so. That is because false statements of fact about another person that are injurious to that person’s reputation constitute defamation, and can result in legal accountability.  

Imagine, just for a moment, how you would feel if someone reported to your boss that you, or your brother or sister, was a convicted criminal, or perhaps even a registered sex offender – and it was false. Imagine that it actually was a person with a similarly sounding name, but people still refused to associate with you, and as a result of what was said or written, you were asked to no longer pray at your Church, Mosque or Synagogue. Wow, that would really hurt, wouldn’t it?

Well, the law provides that, in such a case, you could sue the person who made the false statement about you, and a jury might award you a lot of money for your losses, your pain, and your humiliation. 

I strongly suggest using words like “I am not certain, but this is what I have heard,” or “I am not accusing him of being a sex offender, but I have heard it said by others.” If you don’t have direct proof of a person’s prior bad acts, then you should be open and honest about that, for both his and your best interests. The key here is to be precise and careful in your words whenever you accuse someone of something.  

To assist people in your circumstances, we offer a Model Letter entitled “Insisting on Protections from Workplace Violence” you might use it as a model for your own letter or memo insisting that something be done to eliminate the apparent danger of the purported sex offender in your midst. To obtain a copy, just [click here]. 

We also offer a Model Letter entitled “Anonymous Complaint about Bully Boss” which while it is intended to help you get protection of a different type, can quite easily be adapted to be used to anonymously insist on protection from potential workplace violence, including the purported sex offender in your midst. If you are interested in obtaining a copy of this Model Letter, simply [click here].

4. I don’t think you can safely, effectively – or wisely – use this very real problem at your workplace as a device to have the HR Director fired, either to settle old slights or to “get even.” The problem is the potential for sexual attack, not to necessarily get someone fired. If it is your primary intention to get the HR Director fired, there is a good chance that this could actually backfire on you, as actions taken to hurt others often hurt ourselves more.   

Sure, the HR Director might just get fired after your reporting the problem, but my own experience is such that a person in your situation would be wise to examine his or her true motives in the matter, and decide what to do from there. “Knives” can cut the person attacked, but they can also cut “the attacker.” 

Aaron, I hope this is of assistance to you in understanding the problem, its potential solutions, and the assistance that we have made available to you. 

My best to you,
Al Sklover

P.S.: One of our most popular “Ideal Packages” of forms, letters and checklists is entitled “Ideal PIP Response Package” consisting of two Model Responses (first and second), and three Model Letters seeking support from others, as well as our 152-Point Guide and Checklist for a PIP. To obtain a complete set, just [click here.]

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.