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"We are at a societal turning point when it comes to sexual misconduct in the workplace. As we see, and will continue to see, prominent men and women stepping forward with their stories of harassment, assault, and abuse of power, please consider entrusting me with your own. I have spent years fighting on behalf of large corporations and will put that knowledge and skill set to work on your behalf. Whether as a counselor, a confidential sounding board, or an attorney fighting for you in administrative and court proceedings, rest assured your experience will be taken seriously by myself and my office. We can find a solution, together."

It occurs to me that a more positive, not-everything-is-bad post is in order. My past posts have addressed the employee-employer imbalance of power, advocated an end to mandatory arbitration, and criticized the Senate version of the proposed, revised Congressional Accountability Act. However, progress has nonetheless been made these past months (at least I think so) and so it makes sense we take stock.

Jodi Kantor, of the (failing) New York Times [yes, that is a joke: relax!] attempted to do just that, take stock, back in March. Her article highlights a variety of actions taken by companies, cities, states and the federal government in response to the #metoo movement and society’s possible awakening. While Ms. Kantor’s assessment was certainly not all positive – much (most) work remains, much of it at a societal level – she nonetheless pointed to some bright spots. One success was Microsoft’s announcement, late last year, to get rid of forced arbitration in its employment agreements. Another was the Screen Actor’s Guild (“SAG”) publishing an updated Code of Conduct. Even if you are not a waiter/actor in LA, this is an interesting read, especially for newbies. SAG’s Code defines some basic terms (e.g., quid pro quo, hostile work environment, retaliation) and educates actors and employers on what to expect when a complaint is filed, as well as provides resources to employees.

But I am singling out Facebook for further analysis and some praise (God knows, it needs it). In December 2017, Facebook took the somewhat unusual step and put its internal policy online for all to see. In the announcement post COO Sheryl Sandberg declared Facebook’s “philosophy” was to go beyond what was legally required – not too hard, unfortunately- and to enforce a zero-tolerance approach. Undergirding the policy are the following six principles: 1) mandatory sexual harassment and unconscious bias training; 2) treating all claims with “seriousness, urgency, and respect”; 3) investigating claims in a way that protects employees from stigma or retaliations; 4) applying the process consistently; 5) taking “swift and decisive action” when wrongdoing is identified; and 6) involving all employees in making the workplace safe by encouraging people to report unacceptable behaviors, even if it does not involve them.

The Facebook policy is a real treasure-trove for commentary and analysis and over the next few posts, I aim to highlight some of the encouraging parts, compare it against the company’s stated philosophy and principles, and give you my two-cents on what (if anything) might be problematic or objectionable.

If you have time, read over the Facebook policy and stay tuned.

As the #metoo movement continues to ripple through our society, public and private companies are scrambling to update their sexual harassment policies.

Our Lawmakers didn’t want to be left out of the we-hear-you lovefest and, this February, passed what many observers consider a wide-ranging revision of the Congressional Accountability Act of 1995 Reform Act. The bill got rid of mandatory pre-suit mediation and counseling (yes, you read that right, there was a counseling requirement), made legislators personally financially liable for harassment settlements and, perhaps most impressively, provided the victim with legal counsel, something sorely needed if you are a low-paid employee or intern going up against a powerful lawmaker.

Enter the Senate, whose members appear to have thought this whole levelling-the-playing-field business went a bit too far. Last month the Senate passed its own watered-down Bill without many of the House’s most encouraging ideas. For all you nerds, here is the full text. According to a letter from the ACLU (and others) to Senate leadership, the Bill’s main issues are: curtailing the lawmakers’ financial responsibility by adding procedural hurdles and limiting the type of damages they would personally pay; increasing the difficulty of proving claims by using the legal “severe and pervasive” standard; requiring the victims to ‘opt out’ of mediation; reducing transparency by shielding the accusers from public disclosure; and, again perhaps most importantly, limiting the role of the victim’s assigned advisor.

Sidebar: as the letter points out, the Senate Bill also uses the term “unwelcome harassment,” rather than just harassment. The Bill author really should come forward and explain the difference between harassment and “unwelcome harassment” to me. I would really get a kick out of that chat.

Anyway, we will have to wait and see what the reconciliation process (aka the sausage factory) comes up with. Stay tuned.

De todas las ventajas que los empleadores tienen sobre las víctimas de acoso sexual laboral, quizás ninguna de ellas se iguala al poder que tienen los empleadores a obligar a los empleados que son víctimas de acoso sexual, a someterse al arbitraje y renuciar al derecho que tienen de presentar una demanda, ya sea en una corte estatal o federal.

Nota: por si usted no sabe, el arbitraje es un tipo de corte privada donde uno o mas árbitros hacen las veces de quasi jueces. Muchas veces, los contratos de empleo incluyen claúsulas en las que se le require al empleado someterse al arbitraje en casos de disputas laborales – incluyendo casos de acoso sexual.  Dependiendo de a qué parte le preguntemos, obtendremos diferentes reacciones sobre si el arbitraje es algo bueno.  Según la Asociación Americana de Arbitraje, el arbitraje es “más rápido y más rentable que litigar.” No es de sorprenderse que por lo general los empleadores estén de acuerdo con esta evaluación; es más, después de varias cervezas hasta podrían admitir que el arbitraje en sí favorece ampliamente a los empleadores. Pero, aunque aceptemos la premisa “rapidez-rentabilidad” (por salvar ese argumento), las víctimas de acoso sexual que buscan ser compensadas quizás no se beneficien tanto de esta rapidez y eficiencia.

El abogado general de cada estado de los Estados Unidos de Norte América parece pensar de esta manera. En una carta de fecha 12 de Febrero del 2018 dirigida al Congreso – la cual fue difundida por nuestro propio abogado general, Pam Bondi – los abogados de todos los estados concluyeron unánimemente que “[a]unque hay muchos beneficios con las claúsulas de arbitraje en otros contextos, las mismas no se extienden a los casos de acoso sexual.” Por qué? Porque los árbitros

no están colocados para asegurarse que a estas víctimas se les otorgue su derecho al debido proceso legal.”  

Estas declaraciones son bastante fuertes viniendo de representantes de los estados altamente Republicanos (también conocidos como “amigos” de los empleadores), así como de los estados altamente Demócratas.  La carta también resalta el efecto dañino que el secretismo – muchos de los árbitros son secretos ‒ puede tener en la sociedad, pues el alcance del problema básicamente se barre debajo de una alfombra proverbial.

Entonces, veremos algún cambio? Francamente no temenos idea . . . la Ley del Arbitraje Justo del 2018 fue presentada al Congreso en Marzo del 2018. La propuesta de ley pretende prohibir el arbitraje en casos relacionados con disputas de empleo, consumo, antimonopolio, y derechos civiles. Pero, como dirían los observadores de la factoría de leyes que el Congreso contempla: el camino entre una propuesta de ley y la ley en sí es bastante largo.  El movimiento #metoo ha sido claramente el ímpetu para esta propuesta de ley.  Sólo tendremos que ver si el deseo se sigue manteniendo aún después de que el tema del acoso sexual se haya desvanecido de los encabezados noticiosos.

So, the last time I discussed the 15 Key Steps employers should take, according to AllBusiness.com, to respond to sexual harassment claims, I mentioned “lawyering up” and being “fair” (as well as, perhaps more importantly, “appearing fair.”)

Minimizing access to information

I want to pick up with one theme I briefly touched upon the last time, an idea either implicitly or explicitly expressed in most of the 15 employer-tips: in responding, the employer should (a) minimize creating potentially damaging evidence and (b) make it more difficult for the victim to have access to potentially relevant information. Two examples illustrate these goals.

First, in Step #5 on “taking appropriate action,” the attorney author throws in, almost as an aside, that

[i]t is important to document the discipline carefully, although specifics about the investigation should not go into personnel files.

(emphasis added) I am sure that, depending upon who you ask, there are several reasons for this; and, perhaps some of them are even legitimate. But, surely one of the real reasons for this advice is that the personnel files are much easier for employees to access and, therefore, they would be easier to provide to a plaintiff’s attorney to assist him or her in evaluating the case. Keeping the investigation findings separate from the personnel file adds another layer of protection from future discovery. I am not saying the investigation and underlying material won’t be discoverable – it very well could be – but keeping it separate from the personnel file adds a further complication; a future plaintiff’s attorney must first determine the materials exist and then obtain them.

Minimizing damaging evidence

And second, tip #10 is disarmingly honest and aims at minimizing damaging evidence: “Be careful with texts and email.”

The evidence code contains a so-called “hearsay exception” for an “excited utterance,” something that someone blurts out in the moment, when emotions are running high (e.g. right after a car crash). [Sidebar: for non-lawyers, hearsay is lawyer-speak and means that the rules of evidence often prevent witnesses telling the judge or jury what another person said to them.] If you are curious, the excited utterance exception is § 90.803(2) Fla. Stat. and can be found here. The idea behind this “excited utterance” exception is that people are more likely to be truthful in the moment, when they have not had time to reflect on the situation and decide what is in their best interest to say.

This is similar to what the author is trying to get employers to minimize. She is telling the bosses-of-the-world to hold their fire on emails and text messages in the hours and days after the victim makes his/her allegation, or after the situation first comes to their attention. Put cynically, the advice is that the employer might be too honest in the moment, that he/she might reveal too much. So, the advice is to pick up the phone and refrain from putting anything in writing, especially when texts and emails are so easy to shoot off and will then be out there, as a great record for plaintiff’s attorneys to mine when ligation ensues.

Why am I telling you all this? Well, for one thing it’s important to realize what advantages (both structural and tactical) employers have, and to develop an awareness for them. After all, how can you hope to address and overcome them if you don’t know they exist. Also, every once-and-a-while what appears like an advantage for the other side can turn out to be, if not a liability, then at least an opening to exploit.

Of the many advantages employers have over victims of sexual harassment, perhaps none matches the power to compel victims to arbitrate, for them to forgo the opportunity of a lawsuit in state or federal court.

Sidebar: if you don’t know, arbitration is a kind of private court, where one (or more) arbitrators act as quasi judges. Often, employment contracts will have language in them requiring the employees to arbitrate work-related disputes, including allegations of sexual harassment. Depending upon which side you ask, you will get very different reactions to whether arbitration is a good thing. According to the American Arbitration Association, arbitration is “faster and more cost effective than litigation.” Unsurprisingly, employers generally agree with this assessment; after a few beers they might even admit arbitration, on balance, strongly favors employers. But, even if we accept the speed-cost premise (for argument’s sake), sexual harassment victims seeking redress may not benefit from speed and efficiency.

The attorneys general of every single U.S. State seem to think so anyway. In a February 12, 2018 letter to Congress – spearheaded by our very own Attorney General Pam Bondi – the attorneys general unanimously concluded that

[w]hile there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims.”

Why? Because arbitrators “are not positioned to ensure that such victims are accorded both procedural and substantive due process.” Now, that is quite a statement coming jointly from representatives of deep-red (aka employer-friendly), as well as blue states. The letter also highlights the deleterious effect that secrecy – many arbitrations are secret – can have on society at-large because the scope of the problem is swept under the proverbial rug.

So, will we see some change? I frankly have no idea . . . the Arbitration Fairness Act of 2018 was introduced in Congress last month. The bill purports to prohibit arbitration in employment, consumer, antitrust and civil rights disputes. But, as even casual observers of the congressional sausage factory will tell you: it is a long way from bill to law. The #metoo movement was clearly the impetus for the bill. We will just have to see if the will remains when the topic of sexual harassment has faded from the headlines.

If you want to get a flavor for how employers around the country are responding to the #metoo movement, with its accompanying increase in reported incidents of sexual harassment at work, look no further than these 15 steps provided by an employment attorney to AllBusiness.com

To be fair, some of these steps (if performed in good faith) are beneficial to victims of sexual harassment and intended to help resolve the issue. For instance, who can take issue with the advice to “promptly and thoroughly investigate.” But my larger take-away was the degree to which employers are stacking the deck against the employee that wishes to seek legal redresss.

“Lawyer up.”

This starts with the #1 advice to employers: “Lawyer up.” The company is advised to involve experienced outside counsel early, and to “take the appropriate steps to ensure that communications with executives, Board members, and employees are protected by attorney-client privilege.” In other words, make sure your lawyer is in the room with management and the relevant players whenever anything related to the victim’s claim is discussed. Also, employers are advised to limit the contact of outside counsel to only those people that need to know, as well as to include legal disclaimers on attorney-client confidentiality and the so-called work product doctrine in their emails with counsel. In short, the goal is to limit, early on, the amount of information that the victim employee can get at for use in court.

Fairness: Fair is Good, Appearing to Be Fair is Also Ok….

But my personal favorite is probably the tip provided in investigating the victim’s allegations: “Fairness is important. The investigation must be evenhanded, and both be fair – and appear to be fair – to all involved.” (emphasis original). I love the authors emphasis here. The not-so-subtle-message, especially in the context of all 15 recommended steps for the employer to take to protect itself, appears to be that while the company should strive to resolve the situation with an eye toward the truth, it should do so while accumulating a defensive paper trail (e.g. confidential communications, investigative reports that “appears” to be fair) to nip lawsuits in the bud.

Employers undoubtedly have many significant advantages over most employees, both structurally and in terms of their war chest. But it’s not all doom-and-gloom. If you experienced sexual harassment at work and are thinking about taking action, the earlier you discuss it with an attorney, the better. If the employer is lawyering up, you should too!