Tim Garrett provided insight on background check best practices as employers seek ways to balance the need to validate applicants’ background and experience with compliance and privacy issues, particularly amid a surge of legislation, litigation and public scrutiny.
- Harassment Law Refresher: A high-level review of harassment law.
- Conducting Effective Internal Investigations: A discussion of best practices for conducting internal investigations into harassment claims.
- The “Company Culture” Issue – How to Reduce Harassment in the Workplace: Strategies for reducing harassment in the workplace and developing a safe culture.
Bass, Berry & Sims attorney Tim Garrett discussed the implications of the ruling holding responsible the University of Connecticut Health Center for the sexual harassment of an employee by a fellow co-worker. In the ruling, the court found that the University of Connecticut Health Center did not take proper steps to alert supervisors of the co-workers prior harassment history which, therefore, prevented the supervisors from properly monitoring his behavior and allowed the misbehavior to occur. According to Tim, “While employers likely can’t monitor their staff at all times and eliminate all workplace harassment, they likely need to have a ‘heightened sense of awareness’ when an employee has been disciplined in the past, and companies will have a greater responsibility to monitor and investigate any allegations in those situations.”
I provided an update on the August 2017 decision by the Eighth Circuit Court of Appeals ruling that a picketing worker from Cooper Tire should not have been fired for yelling racist insults at a busload of African-American replacement workers. The Eighth Circuit’s decision affirmed the National Labor Relations Board’s (NLRB) decision that the company violated the law when it refused to reinstate the worker and ordered the company to reinstate the picketing worker with full back pay. In the article, I outline the case background and the various appeals, ending with analysis of the most recent decision.
The full article, “NLRA Protects Striker’s Racists Insults,” was published in the November 2017 issue of HR Professionals and is available online.
In an article published earlier this year, I asked the question whether the National Labor Relations Act (NLRA) protects racist insults. In a decision rendered on August 8, 2017, a majority of an Eighth Circuit panel, over a vigorous dissent, answered “Yes” – that the NLRA does protect racist insults by a picketing worker.
Ohio just passed a new law that could begin a trend favorable to employers. The new law allows Ohio’s Civil Rights Commission, in its discretion, to award attorneys’ fees and costs to employers who are found not to have unlawfully discriminated against an employee. Why is this important?
For the first time since 2002, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on national origin discrimination in the workplace in an effort to address important legal developments over the past 14 years. In 2015, the EEOC reported 11 percent of the charges filed alleged national origin discrimination. The EEOC’s recent Strategic Enforcement Plan for 2017-2021 includes protecting immigrant and migrant workers from discrimination as a top substantive priority, and this guidance is another step toward increasing the EEOC’s enforcement efforts in this area. Of course, with the election of President-elect Donald Trump last month, the EEOC’s guidance is subject to change. However, the guidance is a useful tool to analyze employers’ existing policies and practices of preventing national origin discrimination with an eye toward the EEOC’s focus for enforcement action.
Bass, Berry & Sims attorney Tim Garrett discussed a case pending before the U.S. Court of Appeals for the Eighth Circuit relating to a striking employee’s termination for yelling racist comments at replacement workers. Although the employee’s firing was upheld by an arbitrator, an administrative law judge (ALJ) did not defer to that ruling and ordered the company to reinstate the employee, citing protection for the striker’s conduct under the National Labor Relations Act (NLRA). The National Labor Relations Board agreed with the ALJ, and the company has appealed to the Eighth Circuit.
The full article, “After NLRB Gives Job Back To Worker Fired For Racism On Picket Line, Appeal Follows,” was published by Forbes on November 30, 2016, and is available online.
A case currently under consideration in the Eighth Circuit Court of Appeals deserves watching. The case will determine whether the National Labor Relations Act (NLRA) protects a picketing employee’s right to hurl racist insults at replacement workers, so long as no threat is involved. The case is Cooper Tire & Rubber Company v. NLRB, Case No. 16-2721. The facts show an intriguing – and some would argue sad – sacrifice by the current Labor Board of race relations at the altar of protecting striking workers’ and their “impulsive behavior.”
The Equal Employment Opportunity Commission (EEOC) recently revealed its Strategic Enforcement Plan for 2017-2021. Of course, this Plan was developed before the election of Donald Trump as President. Thus, the information contained in the Plan could soon become moot, or at the very least, stale. However, seeing what the EEOC recently noted as high priority areas is instructive. Whether the Plan will be dramatically or only slightly revised remains to be seen.