A Footlong Foot In Mouth

If we needed to call our office when we first started investigating sexual harassment claims, we had to put a dime in a machine and our finger in this rotary thing and turn it 10 times. We also rarely had any tangible evidence to help us determine the credibility of the alleged victim or the accused—the classic she said/he said. Those were the good old days.

Today’s new-fangled machine for calling the office is also used to create boat-loads of evidence in sexual harassment and other kinds of cases. Just check out what Kelly, the hiring manager for a Subway franchisee in upstate New York, had on his menu for recruiting new employees. The following is Kelly’s exchange with a 17-year old applicant (“A.R.”), whose cell number he got from her application:

Kelly: Hi how badly do you need a job
A.R.:   Whos this?
Kelly: An employer
A.R.:   Where?
Kelly: In the mall
Kelly: Guess not
A.R.:   Ok where in the mall?
Kelly: Would you sleep with the manager to get the job?
A.R.:   Maybe if [I know] who this is
Kelly: Subway
Kelly: I’m looking for an asst. manager
A.R.:   Do u even know me?
Kelly: Bang my brains out the job is yours

Charming, right? A.R. refused the advance and did not get hired. The employer, upon learning of the exchange, did ultimately fire Kelly, but that was not enough to convince a judge to dismiss the case which was filed on A.R.’s behalf by the EEOC. In July, the judge ruled that the case will be decided by a jury. No pickles, no mustard, please.

No worries Kelly, you’re not the only one who thinks that texting employees or applicants is a great way to woo them. Earlier this year, a former Illinois legislative staffer, Alaina, filed an EEOC charge against Kevin, her frighteningly persistent boss. Kevin’s first move was as follows:

Kevin:  Could I ask you a question?
Alaina: Sure
Kevin:  So on your Facebook page I think there is a picture of you in a bikini
[This already has our hair on fire but it’s just the beginning]
Alaina: Yeah I was in Italy…
Kevin:  Do have any idea what I am going to say?
[How about Italy is so nice this time of year…but no!]
Aliana: I really don’t
Kevin: You are smoking hot!

And there it is. Two days later he asks her, by text, if she has a boyfriend. Eight days after that, he asks her out and she responds, I think we should maintain a professional relationship to which Kevin says, Can I ask why? Then,  when she ignores him, he follows up with: Can you please give a response. Kevin persists for several days and then this exchange:

Aliana: I have always seen you in a supervisor role. I don’t see you in that way.
Kevin:  What does that mean. You really don’t know me. I will not brag or flaunt. But I really am the best dude you will meet.

And right about then, Aliana is likely saying to herself, then I’d rather be alone dude.

The exchanges go on for several months and she becomes more definitive in her shutdowns, but Kevin persists.

Kevin:  So do you not find me attractive?
Aliana: I do not see you that way.
Kevin: Too old. I understand. Well if you ever change your mind let me know.

That’s right, Aliana, even though you did not mention his age, Kevin intends to become younger.

Even in debacles such as these, there are some valuable lessons. Employers must ensure that those who have supervisory authority understand the liability that they can create for the organization and themselves. We strongly recommend that managers be prohibited from texting with employees or applicants. Just because they’re called smartphones, does not mean that they edit the content of the message for the not-so-smart author. Sometimes, a short call on that smart phone is worth a thousand characters–and it sure is a lot harder to prove what was said. And please: NO FACEBOOK! Supervisors must be prohibited from friending or accepting friend requests from co-workers.

If anyone can think of a way to test for common sense, please let us know.

Hey New Yorkers: Hold Up on That New Sex Harassment Plan Because Cuomo Just Pulled a Fast One on Us

We were all set to regale you this week with some fun and exciting information about New Jersey’s new Earned Sick Leave law set to take effect on October 29, but that will have to wait. That’s because without warning, on October 1, New York State announced significant changes to its sexual harassment program. That’s right, just 8 days before the law takes effect, NYS released a new model policy, model complaint form, and model training program, and even more expansive FAQs with different answers to some of the Qs!. And most importantly, the State has changed the date by which all employees must receive their first dose of annual sexual harassment training.

Remember the panic we all felt when we first learned that all employees working in NYS had to receive interactive sexual harassment training by December 31, 2018. Maybe because of his thrashing of Cynthia Nixon in the primary, or maybe because he’s just mean, this week the Governor said,  just kidding, you now have until October 9, 2019 to conduct the model sexual harassment training program. Oh and if you thought that was funny, remember the one about all new hires having to be trained within 30 days, well that’s been changed to as soon as possible. Good one Andrew!

The new FAQs finally answer the question of whether interactive training requires a live human being in the room (other than the trainees). The answer: it’s a best practice but not required. The FAQs do suggest that live trainers can appear by phone or video conference if not in person. Another important clarification is that if the training is web-based, it is considered interactive if the employees have the option to submit a question online and receive an answer immediately or in a timely manner. So just have an email address with your HR Department or your favorite employment lawyers (whose initials are KH) standing by ready to respond to questions from those engaged in the web-based training.

The new model sexual harassment policy went from a whopping 7 pages to 8 and added a new footnote. We all know how likely employees are to read footnotes.  Interestingly, the revised policy removed the phrase zero tolerance from the only 2 places that it appeared leading us to wonder whether that implies that the State wants there to be some level of tolerance. We think not. But it is a strange revision.

There are two significant substantive changes to the policy. The first is the addition to the definition of sexual harassment of behavior directed at an individual not only based on sex and sexual orientation, but also on self-identified or perceived sex, gender identity and the status of being transgender. The second is a new example of sexual harassment, as follows:

Sex stereotyping occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should act or look.

Our favorite addition though is to the list of examples of physical acts of sexual harassment which already included touching, pinching, patting, grabbing, brushing against and poking. The newly revised policy now adds kissing and hugging. We can just imagine the Attorney General walking into the room full of deputies who wrote the model policy and demanding to know who’s the dope who left out hugging and kissing? Yeah, maybe that hugging and kissing stuff is old school.

Employers in NYS need to make these changes to their new sexual harassment policies right away. Although the deadline for training has been pushed back a year, the new policies must still be implemented and distributed by October 9, 2018. Let us know if you have questions and/or need help.

Finally, we know that you’re all disappointed about missing out on the Earned Sick Leave law update, but we promise we will make it up to you next week. As a consolation, below is a link to the newly released notice that must be posted and distributed to all New Jersey employees starting October 29.