Women Need to Know They Don't Have to Accept Bullying or Sexual Harassment in the Workplace

The recent national turmoil over the Supreme Court candidacy of Judge Kavanaugh and the completely broken way that we have dealt with allegations of sexual assault in this country has had one hopefully positive side effect — the number of women around the country who have felt confident enough to come forward with their own stories.

In the workplace, this issue most often takes the form of workplace harassment or bullying. Recently, writer Jessica Press was caught by surprise while working on an article about workplace bullying. When she posted to social media that she was looking for stories from women about their experiences of being bullied at work, she expected a sprinkling of replies. Instead, as she recounts in her feature article appearing in Redbook magazine’s October issue, she got a deluge:

“My inbox was flooded — overflowing with incoming mail. I’d put out the call to a handful of experts and Facebook groups for women’s stories of workplace bullying. I thought perhaps I’d hear from a dozen women.

Instead, within a week, nearly a hundred stories from around the country and around the world poured in, with a steady stream continuing in the days and weeks that followed. They worked in hospitals, academia, sales, food service — anywhere and everywhere. There were women still living in fear of retaliation. There were those who shared their journeys of deteriorating marriages, depression, anxiety, and PTSD-like symptoms. There were a surprising number who had involved lawyers and were limited in what they could even reveal due to nondisclosure agreements.”

The article contains a number of tips for dealing with workplace bullying and I commend it to your reading. I hope the national turmoil we are currently suffering will lead to real conversation and, ultimately, real change. Hopefully it will serve, if nothing else, to let people know that bullying, sexual harassment and assault occurs much more frequently than many believe.

I also hope that we can make progress in dispelling some of the false beliefs that many still hold about bullying and harassment in the workplace. Here are a few of the worst:

  1. That if bullying/sexual harassment/assault happened then the woman must have done something to put herself in peril.

  2. That it must always take more evidence than a woman’s word that something happened to be equal to a man’s word that it didn’t.

  3. That if sexual harassment/assault really happened the woman would have reported it immediately.

  4. That sexual harassment/assault is, any any time or context, normal male behavior (“boys will be boys”).

These are all 100% FALSE. And yet many people, including well-meaning women I meet in focus groups, will often state some version of one of these falsisms.

The #MeToo movement has helped to expose just how badly this country has been dealing with the treatment of women who suffer bullying/harassment/assault. But if the raging anger of a bunch of old, male senators last week showed us anything it is that this problem will not go away easily or quietly. We still have a long way to go.

EEOC Sues Dollar General For Sexual Harassment

EEOC Sues Dollar General For Sexual Harassment

Dollar General violated federal law when it subjected a store manager to a sexually hostile work environment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced yesterday.

According to the EEOC's suit, the store manager repeatedly subjected the assistant manager to unwelcome touching, including once grabbing her head and forcing it to his crotch while making a sexual innuendo; rubbing her shoulders; and grabbing her and ripping her blouse.

Read More

Docking Pay From Salaried, Exempt Employees Is Illegal...And Very Common

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The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. All employees fall into one of two categories "Exempt" or "Non-Exempt". If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt), they aren't eligible for overtime. Most people think of non-exempt employees as "hourly" and exempt employees as "salaried".

  • Pro-Tip: Just because your employer pays you as salaried does not necessarily mean that you should be considered exempt and not entitled to overtime. Exempt employees are typically involved in management or high-level administration of the business. There are other exceptions as well but a good rule of thumb is this: if you are more like a rank and file line worker or clerical worker, you should probably be getting overtime. If you aren't you need to find a good employment lawyer.

As a general rule exempt employees are paid a salary and don't have to be paid overtime no matter how many hours they work. But there are other rules that come that exempt status. One important one that employers often ignore is the rule against docking pay.

Exempt employees who are late or who need to leave work early - for doctor's appointment, child care, whatever - cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it's just for 15 minutes, he or she must be paid for the entire day. That's the rule.

The employer can discipline, fire, or demote the employee. But it cannot dock the employee's pay.  Importantly, the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. But the employees pay may never be docked.

So what happens if the employer breaks this rule and docks pay? Well then the employer has just lost the FLSA "exemption" as to that employee. This means the employee is owed overtime for all hours over 4o worked in the last two years plus all overtime worked in the future. This can add up to a substantial amount.

So, long story short is this: If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact an employment lawyer right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay.

Jury Awards Administrative Assistant $850,000 in Age Discrimination Lawsuit

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A jury has awarded a Temple University executive assistant $850,000 in an age discrimination lawsuit alleging that, among other things, she was told by her boss, a Chinese national, that "in China, they put women out to pasture at your age" (Briggs v. Temple University, No. 16-248 (E.D. Pa., July 19, 2018)).

After she was fired, Ruth Briggs sued the Philadelphia-based school, claiming age discrimination and hostile work environment during her tenure as an executive assistant to the chair of the university’s computer and information sciences department. Briggs also said she suffered retaliation when she repeatedly complained to the university’s human resources department. The university, however, said she was fired for performance deficiencies.

A unanimous federal jury awarded Briggs compensatory damages of $350,000 for pain and suffering, back pay loss of $250,000 and $250,000 in liquidated damages.

Read local media report here. 

Report: Gender Pay Gap Is Actually Getting Worse for Millennial Women

 Source: Alpha Stock Images - http://alphastockimages.com/ Creative Commons

Source: Alpha Stock Images - http://alphastockimages.com/ Creative Commons

Women between 25 and 34 years old are are actually slipping backwards when it comes to pay equality with men, according to data from the Bureau of Labor Statistics. Money.com reports that according to BLS, in that age group millennial women made just under 89 cents on a man’s dollar in 2016, down from a high of 92 cents in 2011. That means the gender gap in median weekly earnings is the widest in seven years.

The dip is surprising, given that millennial women are increasingly highly-educated relative to their male peers. According to the article, part of the explanation could be that in recent years, gender-wage parity had been improving because men’s wages weren’t doing well. Now that the economy is improving, the gap appears to be widening again.

What should I do if I'm being retaliated against at work?

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I get a lot of questions from readers on all kinds of topics. For a myriad of reasons, it would not be appropriate for me to answer a specific individual's question or to otherwise provide legal advice online. However, I can address general areas of concern in a general way. While I hope that this information is useful, be warned that you absolutely should NOT consider any information you read here to be legal advice as to your particular situation. Legal analysis is very fact and geographically specific. If you have a legal question, my best advice is that you contact an attorney who specializes in such matters in your area. 

After reporting to HR about my manager with the company groping me, the HR representative filed no report and called the offender in the office to have him apologize to me. No other action was taken. Now I am being investigated and harassed at work and I don't understand why. What should I do?

While not every employer handles internal reports of misconduct this way, situations such as this are, sadly, something I hear about all too frequently from employees who come to see me. An employee follows the rules and does what he/she is supposed to do by reporting discrimination or harassment to HR, only to then be further harassed and retaliated against in response to his/her report. Often this retaliation comes in the form of management "keeping book" or noting every error or perceived mistake made by the reporting employee in an effort to build a record for termination. Sometimes the retaliation is much more severe. I have had cases in which employees were moved to a less desirable office location, passed over for promotions, accused falsely of misconduct, etc. Such a situation can make going to work seem almost unbearable. And in fact, this is often the goal of the employer -  to make your work life so terrible that you feel you have no choice but to quit.

So what can an employee in this type of situation do? Here are some suggestions:

  1. Document Everything in Writing - Your boss or HR representative might be saying all the right things and telling you everything is fine but those oral statements are easily forgotten once you have been fired and you are later trying to prove what was said. Your best bet: document everything in a way that is at least somewhat verifiable. If you need to report misconduct, harassment, or retaliation do it via a written letter or email. In either case, print yourself a copy of what you sent and take it home for safekeeping. If you have an important phone call or meeting with HR or your boss in which you outline the harassment and they promise to take some action, document it in a follow-up email to the HR rep in which you thank the rep for meeting with you and restate your understanding of what was said by both parties. Again, print yourself a copy and take it home. 
    • But Chris...can't the HR Rep later deny that my email correctly summarizes what was said? -- Sure, I suppose they could try to say that. But everyone (including the jury) will wonder why they didn't reply to your email back when it happened to correct your summary.
  2. Don't Make Unforced Errors - You know they are watching every move you make just hoping you screw up so they can fire you. So don't help them. Don't be late to work. Do good work. Get your reports in on time. Don't gossip and tell co-workers what a big jerk your boss is. etc. These are unforced errors and they will come back to bite you in the end. 
    • What if your boss doubles your workload to make it impossible for you to meet quota?  -- This happens a lot so don't be surprised if it happens to you. Don't let it make you so angry that you start acting out and thereby give the boss a legitimate reason to fire you. That's playing into his/her hands. Instead, do the very best job you can and document the retaliation by emailing HR to let them know what is happening (don't forget to print a copy and take it home) and then do your best to comply with the new work requirements. Keep your boss informed on your status by regularly emailing (keep a copy). Remember, in addition to actually trying to be a good employee under difficult circumstances, you are building the paper trail you and your lawyer may need later to prove you were trying to be a good employee under the circumstances. 
  3. Consider Filing a Charge with the EEOC and/or Visiting with a Lawyer - Know this: Once retaliation starts, it rarely gets better on its own. If a boss is retaliating against an employee, it signifies a type of "line in the sand". That boss has declared (perhaps only to himself or herself) that you have got to go...period. So don't beat yourself up when nothing you do to placate your boss seems to work. It may just be time to go outside for help. One choice is filing what is called a "Charge" with the Equal Employment Opportunity Commission ("EEOC"). Note that the EEOC only deals with EEO types of issues (race, sex, religion, disability, national origin) and retaliation if (and only if) you are being retaliated against due to an internal complaint that you were harassed or discriminated against based on one of those EEO categories. Another option that you really should consider is visiting with a qualified employment lawyer. If you have not been fired yet then your case might not be one that an employment lawyer can agree to take on a contingent basis. However, most employment lawyers will agree to a fee-based consultation, during which you can explain your situation and the lawyer gives you advice regarding what protections you might have under applicable law and what steps you need to take to best protect your interests. While legal fees vary greatly based on geography, you should expect to pay between $100-$500 for an hour of the attorney's time. In the grand scheme of things, this is a good value for the information you will receive.