From #MeToo to Marijuana, Law Firms Help Navigate HR
YOUNGSTOWN, Ohio — As societal issues drive changes to human resources, or HR, policies, area companies are working closely with law firms to ensure their workplace reflects those changes.
While some issues such as sexual harassment are long-standing problems getting new attention, others are born of technological and societal changes. These changes have prompted calls to law firms to conduct in-house seminars and review workplace policies and employee manuals.
Employers need to make clear that they are cultivating a work environment that is receptive to any complaints, and that those complaints will be investigated, says Matthew Ries, an attorney with Harrington, Hoppe & Mitchell.
“You can throw a policy in a handbook and say, ‘Well, we prohibit it,’ but I don’t know that necessarily sends the human message to employees that it’s something that the company takes really seriously,” Ries says.
Sexual harassment is arguably one of the most prominent HR issues, driven to the forefront by the #MeToo movement. And though the movement has had no change on substantive law, it “set forth the realization that this is still more common than we previously believed it was,” Ries says. There also is an increase in claims nationwide, he notes.
“It’s caused employers to look at these more seriously, and of course any employer should be trained and should be training its staff on its sexual harassment policies,” he says.
Employers need to demonstrate their support for sexual harassment training, not just pay it lip service, assert James “Ted” Roberts and Christine Papa, attorneys with Roth Blair Roberts Strasfeld & Lodge.
The most important word used in providing training to avoid sexual harassment in the workplace is “unwelcome” – the first word in the section of the federal code that covers sexual harassment, Roberts says. It’s also a word that’s subjective, he acknowledges. Often, the subject of the harassment might choose to “go along to get along” so as not to risk repercussions from reporting the unwanted behavior, including dismissal.
“It’s the employer’s responsibility to let the staff know that we are going to welcome your complaint, if you feel certain conduct is unwelcome to you,” Roberts says. If a supervisor’s behavior is causing a knot in an employee’s stomach, the boss’ job is “to untie that knot,” he says.
That point must be stressed during employee training, Papa says.
“It’s important to provide the training to your employees and let them know that this is going to be taken seriously from the top down, that the rules apply to everyone and that it’s a serious topic,” she continues. “Ted [Roberts] always says the worst thing you can do is say we have this policy or we’re having this training because the lawyers are making us do it.”
It’s important to educate employees at all levels on antidiscrimination policies and reporting procedures that are in place, and to encourage reporting any violations of the policy, Papa says. “The employer can’t correct something that they don’t know about.”
Instances of issues in the workplace stemming from the language that individuals use or the attitudes they display that might be unwelcome to members of the opposite gender are actually more common than sexual conduct or contact, Roberts says. These “common violations” of the Golden Rule can include joking emails and over-familiarity.
Greater awareness driven by #MeToo has prompted companies to review all of their discrimination policies to ensure they are compliant, says Tim Jacob of Manchester, Newman & Bennett. What remains unclear – but is becoming clearer – is the extent to which sex discrimination policies apply to people who are gay, lesbian or transgender, he says.
Jacob anticipates the U.S. Supreme Court eventually will intervene on the matter. Given its ruling on gay marriage, he predicts the court will rule that sex discrimination laws covers sexual orientation or identification.
“The #MeToo movement woke people up,” Jacob says. “I like to think my clients had well-drafted and well-enforced policies against sexual and other illegal harassment, but that certainly raised awareness.”
Legalizing the use of prescribed medicinal marijuana in Ohio is another recent development that has created a new issue for workplaces. Employers can still maintain a “zero tolerance policy,” Jacob says. There is a lot of established science that use of marijuana products “screws up your coordination,” and his clients include steel mills and other places where large pieces of equipment are in use.
“It’s dangerous enough if you’re fully focused. If you’re not, you’ve got a problem,” Jacob says.
Even individuals who are able to use medical marijuana can still be disciplined or terminated for possessing it in the workplace. “The fact that you may legally have it doesn’t mean that it can’t be banned in the workplace,” he notes.
There’s nothing in the statutes that requires an employer to permit or accommodate an employee’s use of medical marijuana. But if the employer is going to forbid use, that policy needs to be spelled out, says Roth Blair’s Papa. Some workplaces that prohibit the use of medicinal marijuana include companies that employ drivers regulated by the U.S. Department of Transportation or ones with federal contracts, since marijuana is still illegal under federal law, she says.
“As a practical matter, whether it’s medicinal or recreational, it impairs conduct. So you may not be sharp, you may be under the influence and therefore pose a safety risk,” Roberts adds.
An individual injured because of someone’s use of medical marijuana could be viewed as a violation of Occupational Safety and Health Administration guidelines because the substance is not recognized as a “legitimate substance” to use at work, adds Harrington’s Ries. Further, the Americans with Disabilities Act does not recognize employee use of medical marijuana as a “permitted accommodation,” he says.
Other new issues requiring review include workplace violence and bullying; guns in the workplace and concealed carry; and use of electronic devices at work – not just in terms of social media, but use of company equipment to access inappropriate content.
During President Barack Obama’s administration, a ruling by the National Labor Relations Board permitted employees, with few limits, to use personal devices to take pictures of workplace environments to help document safety complaints, explains Manchester’s Jacob.
That decision is being partially reversed due to proprietary information issues raised by a case involving the Boeing Co. Such devices also can be used to bully or harass employees.
“Many of my clients have restrictions on cell phones,” Jacob says.
Several of the HR issues that have come before Manchester, Newman & Bennett in the past six months relate to the NLRB and its place in the nonunion workplace, Jacob says. Obama appointees to the NLRB tended to be pro-union and decided “probably a dozen cases, which reversed long-standing precedent,” impacting union and nonunion workplaces, he says.
“They outlawed certain handbook language that was fairly common because they claimed it was an incursion on people’s right to bargain collectively,” he says. A decision in a separate case eased employee use of employer emails for union organizing activity.
For Ries, the most common HR issue he deals with is what happens when the time comes for a client to let an employee go, he says. The firm’s role depends on several factors. Before termination, Ries will advise clients on the steps that need to be taken to address what is at issue.
“We caution them one way or the other on how the law will view the actions taken by the employer,” he says.
If the employee already has been fired, lawyers will attempt to resolve any issues prior to litigation being filed and to dispel any inaccurate information.
“If a lawsuit’s been filed, then we just jump in and defend and answer the complaint,” he says.
Copyright 2022 The Business Journal, Youngstown, Ohio.