Arizona News & Analysis

  • Employers can be liable for harassment even with policies in place

    Title VII of the Civil Rights Act of 1964 protects employees from a hostile work environment. People use buzzwords such as "severe and pervasive" to describe hostile environment harassment, but what does that mean? It could mean verbal or physical harassment in the form of discrimination, intimidation, ridicule, or insults based on a protected status such as race or sex that changes the conditions of employment or creates an abusive working environment.

  • Women's World Cup gives header to equal pay claims

    Two days after the U.S. Women's National Team (USWNT) won soccer's World Cup and brought worldwide attention to the issue of equal pay, Talonya Adams took her pay discrimination and retaliation claims against the Arizona Senate to trial before a federal jury in Phoenix. It was fortuitous timing for Adams—before the week was out, the jury had awarded her $1 million to compensate for the emotional distress she had suffered.

  • DOL updates opinion on independent contractors for the gig economy

    Under the Trump administration, the U.S. Department of Labor (DOL) has taken a decidedly industry-friendly approach to the independent contractor analysis. If there was any doubt before, that was made clear by its recent issuance of a whopping 10-page opinion letter examining the nature of the relationship between a virtual marketplace company (think Uber) and the "gig" workers they employ (e.g., Uber drivers).

  • Agency Action

    DOL takes more steps to advance apprenticeships. The U.S. Department of Labor (DOL) has announced a Notice of Proposed Rulemaking (NPRM) along with monetary awards in its continuing effort to expand apprenticeships. In the announcement, the DOL said the NPRM would establish a process for the agency to advance the development of high-quality, industry-recognized apprenticeship programs (IRAPs). A 2017 Executive Order created the Task Force on Apprenticeship Expansion, which developed recommendations on how to best expand the apprenticeship model. The new NPRM reflects key recommendations from the task force. The DOL also announced awards totaling $183.8 million to support the development and expansion of apprenticeships for educational institutions partnering with companies that provide a funding match component. The agency also will make available an additional $100 million for efforts to expand apprenticeships and close the skills gap.

  • Ensuring proper handling of wage garnishments

    Our June Work on It column addressed the initial steps to take when youre served with a writ of garnishment and summons directing you to garnish an employees wages. This month, we outline the steps to take after you file the garnishees answer and your answer is served on both the judgment creditor and the judgment debtor. We havent addressed nuanced situations; rather, weve focused on the basic steps employers must follow during the garnishment process.

  • Protecting against workplace bullying

    Recently, a manager named Carol told me she had been verbally attacked by another manager. The anger seemed to come out of nowhere. Carol asked a question, Mount Vesuvius erupted, and next thing she knew, she was covered in hot lava. It happened at the end of a management meeting when others were still lingering. No one, including her boss, came to her defense.

    The offender was someone with whom Carol had a good working relationship. Shed heard others mention his blowups, and she had even witnessed him dressing down another employee, but she had never been his target before.

    A generally upbeat and secure individual, Carol said she felt nearly sick for a couple of days after the incident. She could no longer trust the other manager. She felt bitter disappointment in some of her colleagues who didnt intervene on her behalf. She also felt guilty because she knew of her coworkers past bad behavior toward others, and she hadnt offered them her support. To add insult to injury, she never received an apology.

    Organizational fallout

    The organizational fallout from an ugly episode like what happened to Carol goes beyond the two individuals involved in the confrontation. The witnesses to the spectacle must process what happened, contend with their own feelings of inadequacy for not intervening, and try to maintain respect for everyone involved.

    Then theres the office grapevine: Did you hear what happened at the end of the management meeting last week? Hes such a bully! So, is Carols coworker a bully?

    The Workplace Bullying Institute (WBI) defines bullying as repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is:

    • Threatening, humiliating, or intimidating;
    • Work interferencee.g., sabotagethat prevents work from getting done; or
    • Verbal abuse.

    The offender in this scenario definitely heaped verbal abuse on Carol. The fact that he did the same thing to other employees before the incident with Carol makes it repeated. So, yes, he is a bully. One common reason bullies get away with objectionable behavior at work is that their specific skills or expertise are helpful to the organization. Management may turn a blind eye when an employee possesses a hard-to-replace skill set. Alternatively, the overall work environment of the organization or work unit may permit bullying, or even justify or reward bullies behavior.

    The results of a 2017 survey of U.S. workplaces conducted by the WBI speak to the large numbers of employees affected by workplace bullying:

    • 19% of Americans report being bullied, while another 19% have witnessed it;
    • 60.4 million Americans are affected by workplace bullying;
    • 71% of employer reactions are harmful to targets;
    • 60% of coworker reactions are harmful to targets; and
    • To stop the bullying, 65% of the targets lost their original jobs.

    Model policy puts burden on bully

    According to the WBI, bullying is four times more common than sexual harassment or race discrimination because bullying is not yet illegal in most workplaces. The survey findings indicate, however, that a majority of Americans (77%) support enacting a new law against bullying. In fact, model legislation called the Healthy Workplace Bill has been introduced in 31 legislatures (in 29 states and two territories, but not in Arizona).

    The Healthy Workplace Bill gives targets the right to file claims against bullies and employers. It includes a model abusive conduct policy employers may adopt. The policy includes a statement of commitment to certain organizational values, defines abusive conduct, defines employers and employees responsibilities, prohibits retaliation against targets who complain, and lays out a specific internal complaint process.

    Employers that implement and promote such a policy, even without legislation, may prevent blowups like what happened to Carol. At any rate, you will place responsibility for the bad behavior where it belongs: on the bullys shoulders.

    Jennifer Blake is a consultant with F&H Solutions Group.

  • Umbrella of liability shields employee, trust fund

    Workers' right to compensation for on-the-job injuries is enshrined in the Arizona Constitution. State laws are likewise protective of injured workers. A recent Arizona Court of Appeals case demonstrates the worker-friendly nature of the law in the common context of a construction worksite with many layers of contractors and subcontractors. The case, Menos Construction v. Reyes, is likely to rattle the Arizona workers' compensation insurance market for months to come as its implications become clear.

  • Court drops bombshell: FFD exam is OK for hazardous devices tech

    Employers are responsible for their employees' on-the-job safety. That includes making sure an employee poses no danger to his coworkers or himself. But an employer that's worried about an employee's mental or physical condition must take care in how it addresses that concern. Some situations call for an employee to undergo a fitness-for-duty (FFD) examination, which is a medical exam to determine whether the employee is physically or psychologically able to perform his job.

  • Supreme Court will decide whether LGBT discrimination is unlawful

    The U.S. Supreme Court has agreed to decide the long-unresolved question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation or gender identity. The issue has been percolating in the lower courts for quite a while. As it frequently does, the Court declined to consider the question until there was a conflict between several appellate courts. Let's take a look at the history of the Court's decisions, the arguments on both sides of the issue, and what we can expect next.

  • Employees—repping you to the world

    I spent a lot of May in airports waiting on American Airlines flights. I blame the airline for stealing a day of my vacation in Greece. Five flights. All delayed or canceled because of mechanical issues.