A.k.a. sexual harassment, sexual assault, statutory rape.

Google News Search: School, Sex, Teacher 

and what will you get?

Pages and pages of news results from the last 24 hours of the news cycle. Clearly neither Oregon nor Nevada is the epicenter of this issue.

Mark N. Kerkhoff, Associate Attorney at  Fosbinder & Van Kampen, PLLC, recently launched the Employment Law Blog, which explores and analyzes various employment-specific legal concepts and issues.  Particularly, Mark specializes in Age Discrimination, Race Discrimination, Sex Discrimination, National Origin Discrimination, Disability Discrimination, Sexual Harassment, Employment Contracts, Wage & Hour Laws, Family Medical Leave, Retaliation,  and Wrongful Discharge.

Many of you may recognize the name, Mark Kerkhoff.  Rightly so.  Mark is a highly acclaimed alumnus of Charlotte School of Law. Recruited to serve as a charter member of the inaugural law school class, Mark obtained his J.D., magna cum laude, in May of 2009, and successfully obtained his North Carolina license to practice law this summer.   The Employment Law Blog is filled with interesting facts and noted accomplishments about Mark, and also contains insightful collections of commentary and analysis that successfully intertwine Mark’s knowledge, expertise and background.

Mark fully emulates the Charlotte School of Law mission, culture and energy.  Not only does Mark relate to the challenges facing each and every employee-client, but  Mark strives to provide sophisticated employment law representation to employees across the broad spectrum of North Carolina’s rural and urban workplace environments no matter if by profession you are a factory and sanitation worker, professional athletes, doctor, or business executive. Make sure to go read the first of many posts, “Congress Aims to Fix “Gross” Age Discrimination.”

-Liz McCurry (Content from About Mark N. Kerkhoff, Esq.)

Are Municipal Police in Israel's Future? And where are WE in this picture?

On Tuesday morning, I attended the day-long First International Safe Cities Conference, at Tel-Aviv’s David International Hotel.  I was officially there on behalf of the Guardian Angels: all decked out in my red beret and jacket and black multi-pocketed pants filled with information pamphlets. One of the burning questions of the day was whether Israel should reform the current system of policing to allow municipalities to have their own police departments.

Hagai Peled from Israel’s Internal Security Ministry represented the point of view of the National Police. In short, no one is as qualified as they to do the jobs of both crime prevention and dealing with anti-social behavior, that public concerns about crime are not consistent with the rate of crime reflected in police statistics and that municipalities have to deal with too many “local groups” whose pressure could influence the conduct and use of the police. He recommended improved cooperation between police and municipalities, laws that would allow increase police effectiveness, changes in the courts to make them tougher on crime, increased use of anti-crime technologies and increased use of local patrols but without police powers.

Shlomo Buchbut, Mayor of Maalot Tarshiha and chairman of the Union of Local Authorities, pointed out that when more that 62% of the population ranks fear of violence and crime as their number one concern, it’s time for the police to take a second look at their statistics. I would have loved to have offered him the example I saw on The Day of Struggle Against Violence Against Women last week, when, despite the fact that the police report that there have been only seven domestic violence-related murders in Israel this year, we read a Memorial List consisting of 15 names. That is apparently because the police only consider it a “domestic violence-related murder” if the relationship between the two is that of a couple. If a son kills his mother or sister or a grandparent kills a grandchild, for example, that isn’t part of the count.

Avi Naim, Chairman of the Security Committee and mayor of Beit Aryeh, pooh-poohed such examples of the effectiveness of the National Police as the reduction in car thefts (which he attributed to the building of the separation wall) and said that the National Police have failed in their mission when it comes to all kinds of crimes that hurt citizens’ quality of life.

He criticized current law enforcement, i.e. the “culture of laziness” among police officers and the light sentences given to criminals and, even more so, the lack of effective prevention.

In response to Mr. Peled’s concerns about “local influences”, he said that, unlike the national parliamentary system in which representative are selected indirectly, mayors have to pass a test of public confidence every five year called an election, which decreases the chance of politicization of the police. He said local governments must be the nerve center for both day-to-day life (personal security) and large-scale emergencies (public safety) but that they must also understand the level of responsibility involved and provide the training and integration with the National Police to make the system effective and efficient.

There were several other fine presenters. I especially enjoyed hearing Joyce Kaufman of WFTL in South Florida and her refreshingly Right Wing, outspoken First Amendment, pro-Israel and anti-crime rhetoric.

For me, the contrast between Joyce’s emphasis on personal responsibility and the Israelis’ relative paternalism was really striking. Do we, as citizens, play no part in the fight for personal security? What about our  spirit of activism, of volunteerism, of making a difference in their own communities? In order to effect change, efforts like the Hebrew University Students “Take Back The Night” March (see article below) rely on getting people up, out and angry enough to DO something . The police, whether national or local, may be essential in the fight against crime and violence, but they cannot be everywhere and do everything— and they should not be expected to. It’s time we “armed ourselves”, not with guns, but with knowledge, skills and a “can do” spirit, to refuse to allow our communities or ourselves to fall victim to intimidation, crime and violence.

The police can assist us, but they cannot empower us. That is something we must do for ourselves.

Students want to stop fear in Jerusalem

Students at the Hebrew University on Mount Scopus protested against the growing phenomenon of sexual harassment and attacks in the area. To increase awareness of the problem of “paralysis”, they organized a march along the path associated with incidents of harassment.

Eli Mandelbaum and Shlomit Sharvit
YNet  02.12.09, 17:05

“Leaving the dormitories on Mt. Scopus and French Hill in the evening is a very difficult decision for any woman”, explains Hamutal Cohen from the organization ALEH (College Without Harassment). ” When walking back to the dorms from the university, women generally have to prepare themselves to absorb degrading and humiliating catcalls. Many students prefer to take the bus just to avoid the expected encounters with the men that show up in the area every night.”

The procession, that took place under the slogan “Women Want The Night Back “, was held out of a desire to restore the security of thousands of individual students living in dorms in the area adjacent to the university and to place the issue of sexual harassment on the agenda in order to find a solution to the situation.

Women Want The Night Back
“The current preventive actions by the municipality and the civil guard are important, but not sufficient to prevent incidents. The feeling is that the university is not doing enough to tackle the problem. There is a wall of silence around the issue,” says Cohen. “We hope that raising awareness will encourage women to join the Civil Guard and to defend themselves as a way of empowerment and coping with the fears that accompany us as women.

She said that violence against women is a broad social problem that is not restricted to a particular sector and does not remain only within the house, as most people mistakenly think.

“It accompanies women on their way to university and on their way home, in their workplaces and in their classrooms, “she explained.” Its manifestations are not only physical but also verbal, mental and emotional. Violence will not go away unless we fight it, men and women together, and women’s safety and security cannot be assured unless we stop all elements and aspect of these hate crimes. “

Hebrew University sent the following response: “The university administration is aware of the problem and has taken steps to drastically reduce the number of complaints. The University’s Security Department has added security patrol vehicles that move along the axis of movement of students at night. In addition, the Security Department has asked the Israel Police to increase the number of patrols in areas under their supervision in the area in question. The Jerusalem Municipality has also increased the lighting in the area. The University requests that any female student that is harassed issue an official complaint with the Security Department to help them eradicate these incidents.

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Photo by laffy4k via flickr

Our friend over at Stop Street Harassment Blog wrote a great post on whether or not employers should be responsible when their employees harass in public while on the clock. We’ve had some dialogue on this blog around the issue and even a few success stories of individuals who reported an incident to the harasser’s employer. We want to know your thoughts on the issue as we are brainstorming the types of policies and programs that are needed in our community to address gender-based public sexual harassment. What are the pros with having companies and businesses implement a Harassment Hotline. Do you see any cons to a system like this?

Cross posted from Stop Street Harassment Blog:

Should employers be responsible if their employees harass women in public, while the employee is on the job?

Recently I read Deborah Thompson’s article “‘The Woman in the Street:’ Reclaiming the Public Space from Sexual Harassment” (a 1994 article in the Yale Journal of Law and Feminism) and I like her ideas on this topic.

“While Title VII [of the Civil Rights Act of 1964, which prohibits workplace discrimination] was never intended to apply outside the workplace, its hostile environment principles provide a useful framework from which to develop a liability regime to protect all women who are street harassed by ‘men at work.’

This regime would hold employers vicariously liable for public sexual harassment by their employees if the employer failed to warn workers that street harassment is intolerable, failed to implement as system by which members of the public could formally file a complaint, or failed to take remedial action when members of the public complained about harassment by their employees.

It would be relatively easy to develop a complaint procedure for street harassment. For example, instead of signs on the back of company trucks that read, ‘How’s my driving, call 1-800-555-1212,’ trucks and taxis could display signs that read, ‘If the driver of this vehicle harasses you, call 1-800-555-1212.’

Similarly at construction sites, there should be a number for women to call to complain about harassment by workers. Such a ‘Harassment Hotline’ would be a first step in ending the hostile environment of outdoor workplaces.

It would send a valuable message that a particular company cares about its image and does not tolerate workers who invade and bombard communities with sexual harassment…

In sum, the societal interest of promoting the privacy, safety, mobility, and equality of women should outweigh the desire of employees to engage in recreational sexual harassment while on the job.”

What do you think?

Here are two stories submitted by contributors who were able to report a harassing man or men to the employer and meet with success. And it would be even easier to make these kinds of reports if the number to call regarding harassment was prominently posted.

No explanation needed. Someone molest these people please, they might need it.

[via Afro Jacks]

Just a few days ago I went off on a little bird walk while considering a hazing (sexual assault) incident that occurred at a middle school earlier this fall.

In my web wandering thoughts, I pointed out how easily I could pull up another news report on ‘hazing’ that was in fact group based sexual assault.  Another name for this kind of activity is also rarely used when sports teams are initiating younger players: gang rape.

In any case, I did a search for another story and I then shared reports from Robertson High School in Las Vegas.  In that incident six former football players are accused of sodomizing other teammates with a broomstick during a training camp.

As my thoughts wandered I concluded that if the superintendent at the middle school is willing to call sexual assault ‘horseplay’ there is going to be a lot more horseplay as young male athletes grow older, bigger, more popular, and more powerful.

So why do I bring this all up again?  Well, in a bitter irony it seems that Robertson High School – the school with the football team rape charges – today readily illustrates another of my post yesterday’s about teachers and sexual misconduct.

I was considering yesterday how little we as a society, as well as we as an education profession, discuss the ethics and power tied up in teacher student relationships.   In particular I was pondering how little we discuss a teachers power  and access to manipulate or force sexual favors from students.  And I was pointing out how we often prefer to call this ugly little secret misconduct or in this case inappropriate conduct rather than what it actually is, sexual harassment, sexual assault, and statutory rape.  Such ugly words – but accurate words for precisely the topic at hand.

And so this morning when this story popped up on my news feed: Inappropriate conduct latest scandal at Robertson HS, I was not surprised by the situations, but I was saddened that Robertson High School is once again the locus of the conversation.  I guess it shouldn’t be too suprising that once a few veils of silence were removed (thanks first to the football team, and then later to a coach/teacher) there would be more and more reports of inappropriate conduct.

So I suppose you are wondering, what exactly was the  inappropriate conduct at Robinson HS?

Earlier this month, former coach and teacher, Jay Quintana, was arrested and charged with having sex with a former student for years.

and more recently:

Police tell Eyewitness News 4 they are investigating two separate cases involving female staff members from Robertson High School and male students.

Head cheerleading coach Krystle King – who is the daughter of Robertson High’s principal – is on paid leave.  So is school councilor Amadee Duran.

So yea.  It’s more of the same.  That is the same conduct that Oregon’s TSPC is swamped with this year since legally requiring schools to report this conduct rather than dealing with it behind closed doors and passing teachers off with sealed agreements.   Once the issue is uncorked – guess what – it’s in the very air we breath.  Power, gender, sexuality, and domination of those in vulnerable positions is ubiquitous and regularly ignored in and out of schools.  Once the conversation starts there is bound to be a snowball effect.

I am sorry for the community in Las Vegas that is facing this difficult conversation in a void. With now a triad of incidents hitting the national level for this school it will be very difficult for everyone in the community.   And I believe we are kidding ourselves any time we point to this school or any other and suggest that the situation is only happening there.  This is a problem that will keep on waiting and recurring until we choose as a community to call it by name and do something about it.

(I’m blessing you with this alias because it begins with an S and you live in IKEAland. We can talk about changing it if/when you move again).

I hope you have a lovely day filled with meatballs and Volvos.

Don’t forget to wish Britney a happy birthday as well.

Kisses and Bite Marks,

Ruby

Obie Sorrell

Kristi Mitchell and Veronica Cobb have filed a lawsuit against their supervisor, Obie Sorrell, a State Farm insurance agent based in Baltimore.  The women have accused Sorrell of sexual harassment, assault, and defamation, and are seeking at least $4 million in punitive damages from Sorrell and State Farm Annuity and Life Insurance Co.

The women claim that Sorrell repeatedly subjected them to sexual taunts, crude language, unwanted and sexually suggestive physical contact, and a hostile work environment.

The day after the lawsuit was filed, a State Farm spokesperson said that the company takes “any allegations of this nature seriously and will be thoroughly investigating the matter.”

—————–

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The January 1st, deadline for California employers to comply with sexual harassment training requirements for supervisors is fast approaching. California law (GC Section 12950.1) mandates that employers, who regularly employ 50 or more, must train all supervisors in sexual harassment prevention. We’ve heard that many employers are scrambling to meet these requirements by the end of the year.

To aid these companies in becoming compliant, the Law Offices of Don Featherstone has created a comprehensive Sexual Harassment Awareness PowerPoint® Training Program. This training can be easily delivered to supervisors by your company’s HR Manager or member of the management team and provides a convenient way to become compliant. In addition to reviewing the types of sexual harassment: quid pro quo, hostile work environment and third-party harassment; this training program includes a review of the Federal and California laws.

Because it’s still a very tough economy for many business owners, we are offering this training program to all interested employers FREE of charge. Yes, I said Free of charge. It’s just one small way we can give back to our clients and other business owners. If your business would like a copy of this free training, send an email to inquiries@featherstone-law.com and mention FREE Sexual Harassment Training in the subject line. If you know a business owner that might be interested in this complimentary training program, feel free to forward this email to them as well. Help us reach as many California business owners as possible.

Yesterday the TSPC met to discuss a backlog in teacher misconduct cases here in Oregon. In reading through a few articles on this issue it became clear that there is a significant and little talked about problem with something deeper than a general category of teacher misconduct.   Specifically we have here in Oregon a significant problem with sexual misconduct on the part of far too many teachers.

The Oregonian has a short article on yesterday’s TSPC meeting as well as links to two years of investigative reporting on the systemic cover-up of teacher misconduct over the past decade.  Below I’ll post the key points from the articles that stood out to me:

• The problem:

The 17-member commission, which licenses and disciplines educators, considered a record 377 misconduct complaints this year. Those included the 290 cases reported this year plus pending cases from the previous year. That’s nearly double the 195 cases the commission considered just three years ago.

• The deeper problem:

So far this year, the commission has disciplined 84 educators, about one in five involving some level of sexual misconduct. It also has issued discipline orders to 94 other educators, who have the option of appealing the orders in an administrative hearing.

A total of 165 sexual misconduct cases is on record for the 10 year span of 1997-2007.

So TSPC has gone from discipline in about 16 cases of sexual misconduct per year to the current two-year running total of 84 sexual misconduct cases not including some of the 300 backlogged cases yet to be heard.

• What happened two years ago:

1. New Laws

The Legislature last spring passed a law that bars school administrators from concealing the sexual misconduct of teachers who agree to resign and move on, a practice educators call “passing the trash.” Lawmakers also passed other laws that give the commission more power, require administrators to do deeper background checks on new hires and demand districts educate teachers about sexual misconduct.

1. Public Awareness

Some of the increase is the result of more publicity on teacher misconduct resulting from a series of stories The Oregonian published in early 2008.

The Oregonian confirmed or obtained 47 agreements in which school administrators agreed to conceal sexual misconduct by educators in exchange for their willingness to resign. The newspaper found that nearly half the teachers disciplined for sexual offenses over a five-year period left their districts under the cloak of secret deals.

So what might look like an increase in misconduct is actually an increase in reporting of this activity.  As well as a legislated body able to address this misconduct.  Honestly the year is 2009.  Does anyone remember the Packwood hearings back in 1995 nearly 15 years ago?  The big national ah ha!  The oh, now we understand, there have to be rules, accountability, avenues for reporting.   All that feigned shock at people in power using their positions to coerce sexual acts out of subordinates.

Does this really have to happen over and over again?  I suppose the answer is yes as long as we keep compartmentalizing this issue.  One person at a time, one case at a time.  No deep analysis as to who and why within all of the school districts would chose to keep quite and pass along known ‘problem teachers.’   And without deeply questioning that practice, how quickly will these new legal mandates be circumvented by site based practices?

Without raised awareness of these problems (both the offenses / and the professional blind eye to the offenses) as well as soul searching on the part of education preparation programs, the state department of education, the state and local school boards, district leadership teams, teachers unions, and community leaders are we to assume the TSPC can simply police away this misconduct?

If you are interested in learning more yourself, here are links to the some of the Oregonians earlier reporting on the topic: Schools let sex abuse cases slide and here is a graphic of teacher misconduct from 1997-2007 by category.  The Oregonian also has a link to the data base where you can see the public record on all teacher discipline from 1997-2007.

I did some scanning to see if there was a way to query the data base by elementary, middle, and high school  /or/ by teacher gender, field of teaching /or/ by offense to get a greater understanding of generally who the past perpetrators were by location or by misconduct category but I was only able to look up misconduct case by case.   Those deeper questions of location, field, etc could help us deduce where teacher misconduct is more or less normalized.  And that would be a beginning.

Hopefully TSPC is using the data they are collecting to consider these hidden structural questions as well.  There within the trends of teacher misconduct – hiding in the numbers -  are the systemic gaps that leave students vulnerable to unethical adults who every day have very real power and authority over them.

As the 2009 Holiday Season moves into full swing, your company may want to take some common sense precautions minimize the risk of waking up with a post-Holiday Season liability hangover. The music, food, game playing, toasting with alcohol and other aspects of the celebratory atmosphere at holiday parties and in the workplace during the Holiday Season heighten the risk that certain employees or other business associates will engage in, or be subject to, risky or other inappropriate behavior that can create liability exposures or other business concerns for your business.

Discrimination & Sexual Harassment

Whether or not company-sponsored, holiday parties and other celebrations where employees celebrate with other employees or clients tend to fuel bad behavior by inviting fraternization, lowering inhibitions and obscuring the line between appropriate and inappropriate social and business behavior.

The relaxation of the environment heightens the risk that certain employees or clients will make unwelcome sexual advances, make sexually suggestive or other inappropriate statements, or engage in other actions that expose the business to sexual harassment or other employment discrimination liability. To minimize these exposures, businesses should take steps to communicate and reinforce company policies and expectations about sexual harassment, discrimination, fraternization and other conduct viewed as inappropriate by the company.  To promote compliance, businesses also should consider communicating reminders about these policies to employees and business associates during the Holiday Season. Even a simple e-mail reminder to employees that the company expects them to be familiar with and comply with these policies can help promote compliance and provide helpful evidence in the event that an employee engages in an unauthorized violation of these rules.

A good starting point would be to remind employees that the company expects employees and business partners and other guests to adhere to company rules against sexual harassment and other inappropriate discrimination at company sponsored and other gatherings involving other employees or business associates. To enhance the effectiveness of these reminders, a company also might consider providing specific guidance about specific holiday-associated activities that create heightened risks.  For instance, a business that anticipates its employees will participate in white elephant or other gift exchanges involving other employees or business associates may wish to specifically include a reminder to exercise care to avoid selecting a gift that may be sexually suggestive or otherwise offensive.  Businesses also may want to remind employees that the company does not expect or require that employees submit to unwelcome sexual or other inappropriate harassment when participating in parties or other social engagements with customers or other business partners. 

Businesses also should use care to manage other discrimination exposures in the planning of holiday festivities, gift exchanges, and other activities. Businesses also should be vigilant in watching for signs of inappropriate patterns of discrimination in the selection of employees invited to participate in company-connected social events as well as off-duty holiday gatherings sponsored by managers and supervisors. In addition, businesses also should critically review their own plans for possible insensitivity. Business connected holiday parties, communications, gifts and other December festivities should be designed to reflect appropriate sensitivity to religious and other cultural diversity.

Alcohol Consumption

The prevalence of alcohol consumption during the Holiday Season also can create a range of business concerns.  Most businesses recognize that accidents caused by alcohol or other intoxication at work or work-related functions create substantial liability exposures both to workers and any third parties injured by a drunken employee.  Businesses also may face “dram shop” or other claims if employees, family members or other guests attending company sponsored functions injure others after being allowed to over-imbibe. 

Businesses concerned with these liability exposures should take steps to manage the potential risks that commonly arise when employees, clients or other guests consume alcohol at company sponsored events or while attending other business associated festivities. To minimize these risks at company-sponsored events, many companies elect not to serve or limit the alcohol served to guests at company sponsored events.  To support the effectiveness of these efforts, many businesses also choose to prohibit or restrict the consumption of guest provided alcohol at company events.

Businesses that elect to serve alcohol at company functions or anticipate that employees will attend other business functions where alcohol will be served need to consider the potential liability risks that may result if the alcohol impaired judgment of an employee or other guest causes him to injure himself or someone else.  Any company that expects that an employee might consume alcohol at a company sponsored or other business associated event should communicate clearly its expectation that employees not over-imbibe and abstain from driving under the influence.  Many businesses also find it beneficial to redistribute information about employee assistance programs (EAPs) along with this information.  You can find other tips for planning workplace parties to minimize alcohol related risks on the U.S. Department of Labor’s website here.

When addressing business related alcohol consumption, many businesses will want to consider not only alcohol consumption at business related events as well as potential costs that may arise from off-duty excess alcohol consumption. Whether resulting from on or off duty consumption, businesses are likely to incur significant health and disability related benefit costs if an employee is injured in an alcohol-related accident.  Furthermore, even when no injury results, productivity losses attributable to excess alcohol consumption, whether on or off duty, can prove expensive to business.  Accordingly, virtually all businesses can benefit from encouraging employees to be responsible when consuming alcohol in both business and non-business functions.

For more tips, concerned employers may want to listen in on the “Plan Safe Office Parties this Holiday Season” seminar that the National Safety  Council plans to host on December 9, 2009 from 10:30 a.m. -11:30 a.m. Central Time. For more information or to register call (800) 621-7619 or see here.

Businesses also may want to review their existing health and other benefit programs, liability insurance coverage and employment policies to determine to ensure that they adequately protect and promote the company’s risk management objectives.  Many health and disability plans incorporate special provisions affecting injuries arising from inappropriate alcohol use as well as mental health and alcohol and drug treatment programs.  Similarly, many businesses increasingly qualify for special discounts on automobile and general liability policies based upon representations that the business has in effect certain alcohol and drug use policies.  Businesses can experience unfortunate surprises if they don’t anticipate the implications of these provisions on their health benefit programs or liability insurance coverage. Reviewing these policies now to become familiar with any of these requirements and conditions also can be invaluable in helping a business to respond effectively if an employee or guest is injured in an alcohol-related accident during the Holiday Season.

Gift Giving & Gratuities

The exchange of gifts during the Holiday Season also can raise various concerns. As a starting point, businesses generally need to confirm that any applicable tax implications arising from the giving or receiving of gifts are appropriately characterized and reported in accordance with applicable tax and other laws.  Government contractors, health industry organizations, government officials and other entities also frequently may be required to comply with specific statutory, regulatory, contractual or ethical requirements affecting the giving or receiving of gifts or other preferences. 

In addition to these externally imposed legal mandates, many businesses also voluntarily have established conflict of interest, gift giving or other policies to minimize the risk that employee loyalty or judgment will be comprised by gifts offered or received from business partners or other outsiders.   Businesses concerned about these and other issues may want to review the adequacy of current business policies affecting gifting and adopt and communicate any necessary refinements to these policies. 

Performance, Attendance & Time Off

Businesses also commonly face a range of attendance and productivity concerns during December.  The winter cold and flu season and other post-celebration illnesses, vacations, and winter weather inevitably combine to fuel a rise in absenteeism in December. Managing staffing needs around the legitimate requests for excused time off by employees presents real challenges for many businesses.  Further complications can arise when dealing with employees suspected of mischaracterizing the reason for their absence or otherwise gaming the company’s time off policies.  Meanwhile, performance and productivity concerns also become more prevalent as workers allow holiday shopping, personal holiday preparations, and other personal distractions to distract their performance.  Businesses concerned with these challenges ideally will have in place well-designed policies concerning attendance, time off and productivity that comply with the Fair Labor Standards Act and other laws. Businesses should exercise care when addressing productivity and attendance concerns to investigate and document adequately their investigation before imposing discipline. Businesses also should ensure that their policies are appropriately and even-handedly administered.  They also should exercise care to follow company policies, to maintain time records for non-exempt workers, to avoid inappropriately docking exempt worker pay, and to provide all required notifications and other legally mandated rights to employees taking medical, military or other legally protected leaves. In the event it becomes necessary to terminate an employee during December, careful documentation can help the business to defend this decision.  Furthermore, businesses should be careful to ensure that all required COBRA notifications, certificates of creditable coverage, pension and profit-sharing notice and distribution forms, and other required employment and employee benefit processes are timely fulfilled.

Timely Investigation & Notification

Businesses faced with allegations of discrimination, sexual harassment or other misconduct also should act promptly to investigate any concerns and if necessary, take appropriate corrective action.  Delay in investigation or redress of discrimination or other improprieties can increase the liability exposure of a business presented with a valid complaint and complicate the ability to defend charges that may arise against the business.  Additionally, delay also increases the likelihood that a complaining party will seek the assistance of governmental officials, plaintiff’s lawyers or others outside the corporation in the redress of his concern.

If a report of an accident, act of discrimination or sexual harassment or other liability related event arises, remember to consider as part of your response whether you need to report the event to any insurers or agencies.  Injuries occurring at company related functions often qualify as occupational injuries subject to worker’s compensation and occupational safety laws.  Likewise, automobile, employment practices liability, and general liability policies often require covered parties to notify the carrier promptly upon receipt of notice of an event or claim that may give rise to coverage, even though the carrier at that time may not be obligated to tender a defense or coverage at that time.

If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management  and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Curran Tomko Tarski LLP Attorneys Can Help

If your business needs assistance auditing, updating or defending its human resources, corporate ethics, and compliance practices, or responding to employment related or other charges or suits, please contact Curran Tomko Tarski Labor and Employment Practice Chair Cynthia Marcotte Stamer at cstamer@cttlegal.com, (214) 270-2402, or your favorite Curran Tomko Tarski, LLP attorney.

The author of this article, Curran Tomko Tarski LLP Labor and Employment Practice Group Chair, Cynthia Marcotte Stamer, and other members of Curran Tomko Tarski LLP are experienced with assisting employers and others about compliance with federal and state equal employment opportunity and other labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising and defending employers against federal and state employment discrimination and other labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on wage and hour and a diverse range of other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years.  Ms. Stamer also speaks and writes extensively on these and other related matters.  See here for additional information about Ms. Stamer and her experience, here to review other recent updates, here  for other articles and publications, and review selected training and presentations here or contact Ms. Stamer directly.

For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Helpful Resources & Information

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to cstamer@cttlegal.com or registering to participate in the distribution of these and other updates on our CTT HR & Employee Benefits Update distributions in blog form via RSS feed here.  You also may be interested in staying abreast of emerging internal controls and compliance challenges by reviewing and registering for our Corporate Compliance, Risk Management & Internal Controls distributions.  For important information concerning this communication click here.  If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.com.

©2009 Curran Tomko Tarski LLP.  All rights reserved.

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My three friends and I were sitting on a bench in Dupont Circle the other night just talking when a sleazy man approached us. He started telling us that we were having too much fun and we were sexy. Then he turns to me and says “Damn big girl, I’d fuck that pussy up! I have to leave because you’re making me too hot. Damn!”

My friends and I sat there completely shocked. None of us knew what to do. We felt completely violated and dirty. I wish I had said something to him at the time. Maybe I should have called him out on being completely inappropriate and disrespectful but I was too scared and shocked. I’ve been harassed on the street before, but this was definitely the worst.

Submitted by Anonymous

Location: 14th & U St NW

Do you have a personal experience with gender-based public sexual harassment you would like to submit? Just click here and fill out the online submission form. All submissions are posted anonymously unless you specify.

A federal jury has ordered the former owners of the IHOP restaurant in Racine, Wisconsin, to pay two former waitresses $105,000 in punitive damages for having been sexually harassed by their assistant manager.

The EEOC, which filed the lawsuit, said that the two waitresses were subjected to a hostile work environment that included “unwelcome physical touching, propositions for sex, and sexual comments.”  The two waitresses were teenagers at the time that the sexual harassment occurred in 2004 and 2005.

The lawsuit had claimed that the IHOP franchise ignored early complaints of sexual harassment and that the employee who filed the charge of discrimination suffered from retaliation and was fired after she complained about the harassment.

Other waitresses said they faced the same harassment.  They testified that Management Hospitality of Racine, the company that operated the IHOP, failed to correct the situation. The IHOP restaurant at which the servers were harassed was owned by Salauddin Janmohammed, and managed by a management consulting firm, Flipmeastack, which is owned by Janmohammed’s wife.

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We found out about this serial smoocher in Loudoun and decided to post since so many people commute into DC from this area. The Sheriff interviewed in this article asked some interesting questions that often get asked on our blog as well.

From the Washington Post:

The first time the smoocher struck it was just after 9 a.m. Nov. 20.

The man approached a woman jogging on Whitewater Drive in Sterling and held out his hand, as if to shake hers, Loudoun authorities said. The man then leaned in and kissed the startled jogger on the cheek.

Then, on Monday, a woman jogging in the same area was approached by a man who held out his hand to her. This time, the man kissed the jogger’s hand.

Loudoun Sheriff’s spokesman Kraig Troxell said authorities suspect the smoocher is the same man. He did not speak, and the women said he seemed a bit disoriented. So far he has not turned violent, but detectives want to find him to make sure he is not a threat. They also are concerned about the man’s safety.

“Is there something physically wrong with this person,?” Troxell said. “Is it a cultural thing? Is this person just doing something that seems inappropriate here [in the United States]? Or is it more sinister?

Continue reading.

As the 2009 Holiday Season moves into full swing, your company may want to take some common sense precautions to minimize the risk of waking up with a post-Holiday Season business liability hangover. The music, food, game playing, toasting with alcohol and other aspects of the celebratory atmosphere at holiday parties and in the workplace during the Holiday Season heighten the risk that certain employees or other business associates will engage in, or be subject to, risky or other inappropriate behavior that can create liability exposures or other business concerns for your business.

Discrimination & Sexual Harassment

Whether company-sponsored or not, holiday parties and other celebrations where employees celebrate with other employees or clients tend to fuel bad behavior by inviting fraternization, lowering inhibitions and obscuring the line between appropriate and inappropriate social and business behavior.

The relaxation of the environment heightens the risk that certain employees or clients will make unwelcome sexual advances, make sexually suggestive or other inappropriate statements, or engage in other actions that expose the business to sexual harassment or other employment discrimination liability. To minimize these exposures, businesses should take steps to communicate and reinforce company policies and expectations about sexual harassment, discrimination, fraternization and other conduct viewed as inappropriate by the company.  The company should caution employees that the company continues to expect employees and business partners to adhere to company rules against sexual harassment and other inappropriate discrimination at company sponsored and other gatherings involving other employees or business associates.  To enhance the effectiveness of these reminders, a company should consider providing specific guidance about specific holiday-associated activities that create heightened risks.  For instance, a business that anticipates its employees will participate in white elephant or other gift exchanges involving other employees or business associates may wish to specifically include a reminder to exercise care to avoid selecting a gift that may be sexually suggestive or otherwise offensive.  Businesses also may want to remind employees that the company does not expect or require that employees submit to unwelcome sexual or other inappropriate harassment when participating in parties or other social engagements with customers or other business partners. 

Businesses also should use care to manage other discrimination exposures in the planning of holiday festivities, gift exchanges, and other activities.  Exercise care to ensure that business connected holiday parties, communications, gifts and other December festivities reflect appropriate sensitivity to religious diversity.  Businesses also should be vigilant in watching for signs of inappropriate patterns of discrimination in the selection of employees invited to participate in company-connected social events as well as off-duty holiday gatherings sponsored by managers and supervisors.

Alcohol Consumption

The prevalence of alcohol consumption during the Holiday Season also can create a range of business concerns.  Most businesses recognize that accidents caused by alcohol intoxication at work or work-related functions create substantial liability exposures both to workers and any third parties injured by a drunken employee.  Businesses also may face “dram shop” claims from family members or other guests attending company sponsored functions injured or injure others after being allowed to over-imbibe.  To minimize these risks at company-sponsored events, many companies elect not to serve or limit the alcohol served to guests at company sponsored events.  To support the effectiveness of these efforts, many businesses also choose to prohibit or restrict the consumption of guest provided alcohol at company events.

Businesses concerned with these liability exposures should take steps to manage the potential risks that commonly arise when employees or clients consume alcohol at company sponsored events or while attending other business associated festivities. Businesses that elect to serve alcohol at company functions or anticipate that employees will attend other business functions where alcohol will be served need to consider the potential liability risks that may result if the alcohol impaired judgment of an employee or other guest causes him to injure himself or someone else.  Any company that expects that an employee might consume alcohol at a company sponsored or other business associated event should communicate clearly its expectation that employees not over-imbibe and abstain from driving under the influence.  Many businesses also find it beneficial to redistribute information about employee assistance programs (EAPs) along with this information.  You can find other tips for planning workplace parties to minimize alcohol related risks on the U.S. Department of Labor’s website here.

When addressing business related alcohol consumption, many businesses will want to consider not only alcohol consumption at business related events as well as potential costs that may arise from off-duty excess alcohol consumption. Whether resulting from on or off duty consumption, businesses are likely to incur significant health and disability related benefit costs if an employee is injured in an alcohol-related accident.  Furthermore, even when no injury results, productivity losses attributable to excess alcohol consumption, whether on or off duty, can prove expensive to business.  Accordingly, virtually all businesses can benefit from encouraging employees to be responsible when consuming alcohol in both business and non-business functions.

Businesses also may want to review their existing health and other benefit programs, liability insurance coverage and employment policies to determine to ensure that they adequately protect and promote the company’s risk management objectives.  Many health and disability plans incorporate special provisions affecting injuries arising from inappropriate alcohol use as well as mental health and alcohol and drug treatment programs.  Similarly, many businesses increasingly qualify for special discounts on automobile and general liability policies based upon representations that the business has in effect certain alcohol and drug use policies.  Businesses can experience unfortunate surprises if they don’t anticipate the implications of these provisions on their health benefit programs or liability insurance coverage. Reviewing these policies now to become familiar with any of these requirements and conditions also can be invaluable in helping a business to respond effectively if an employee or guest is injured in an alcohol-related accident during the Holiday Season.

Concerned employers may want to listen in on the “Plan Safe Office Parties this Holiday Season” seminar that the National Safety  Council plans to host on December 9, 2009 from 10:30 a.m. -11:30 a.m. Central Time. For more information or to register call (800) 621-7619 or see here.

Gift Giving & Gratuities

The exchange of gifts during the Holiday Season also can raise various concerns. As a starting point, businesses generally need to confirm that any applicable tax implications arising from the giving or receiving of gifts are appropriately characterized and reported in accordance with applicable tax and other laws.  Government contractors, health industry organizations, government officials and other entities also frequently may be required to comply with specific statutory, regulatory, contractual or ethical requirements affecting the giving or receiving of gifts or other preferences.  In addition to these externally imposed legal mandates, many businesses also voluntarily have established conflict of interest, gift giving or other policies to minimize the risk that employee loyalty or judgment will be comprised by gifts offered or received from business partners or other outsiders.   Businesses concerned about these and other issues may want to review the adequacy of current business policies affecting gifting and adopt and communicate any necessary refinements to these policies.  To promote compliance, businesses also should consider communicating reminders about these policies to employees and business associates during the Holiday Season. Even a simple e-mail reminder to employees that the company expects them to be familiar with and comply with these policies can help promote compliance and provide helpful evidence in the event that an employee engages in an unauthorized violation of these rules.

Performance, Attendance & Time Off

Businesses also commonly face a range of attendance and productivity concerns during December.  The winter cold and flu season and other post-celebration illnesses, vacations, and winter weather inevitably combine to fuel a rise in absenteeism in December. Managing staffing needs around the legitimate requests for excused time off by employees presents real challenges for many businesses.  Further complications can arise when dealing with employees suspected of mischaracterizing the reason for their absence or otherwise gaming the company’s time off policies.  Meanwhile, performance and productivity concerns also become more prevalent as workers allow holiday shopping, personal holiday preparations, and other personal distractions to distract their performance.  Businesses concerned with these challenges ideally will have in place well-designed policies concerning attendance, time off and productivity that comply with the Fair Labor Standards Act and other laws. Businesses should exercise care when addressing productivity and attendance concerns to investigate and document adequately their investigation before imposing discipline. Businesses also should ensure that their policies are appropriately and even-handedly administered.  They also should exercise care to follow company policies, to maintain time records for non-exempt workers, to avoid inappropriately docking exempt worker pay, and to provide all required notifications and other legally mandated rights to employees taking medical, military or other legally protected leaves. In the event it becomes necessary to terminate an employee during December, careful documentation can help the business to defend this decision.  Furthermore, businesses should be careful to ensure that all required COBRA notifications, certificates of creditable coverage, pension and profit-sharing notice and distribution forms, and other required employment and employee benefit processes are timely fulfilled.

Timely Investigation & Notification

Businesses faced with allegations of discrimination, sexual harassment or other misconduct also should act promptly to investigate any concerns and if necessary, take appropriate corrective action.  Delay in investigation or redress of discrimination or other improprieties can increase the liability exposure of a business presented with a valid complaint and complicate the ability to defend charges that may arise against the business.  Additionally, delay also increases the likelihood that a complaining party will seek the assistance of governmental officials, plaintiff’s lawyers or others outside the corporation in the redress of his concern.

If a report of an accident, act of discrimination or sexual harassment or other liability related event arises, remember to consider as part of your response whether you need to report the event to any insurers or agencies.  Injuries occurring at company related functions often qualify as occupational injuries subject to worker’s compensation and occupational safety laws.  Likewise, automobile, employment practices liability, and general liability policies often require covered parties to notify the carrier promptly upon receipt of notice of an event or claim that may give rise to coverage, even though the carrier at that time may not be obligated to tender a defense or coverage at that time.

If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management  and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

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• DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
• “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
• Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
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©2009 Cynthia Marcotte Stamer. All rights reserved.