Professor Joe: Using Compligo to Stay on the Right Side of Employment Law Issues

Repeat After Me: Harassment Is No Laughing Matter

Sexual harassment in the workplace can be traumatic, which is one reason it often goes unreported. Employees who have been harassed do not always immediately come to terms with what has happened to them, and may doubt or blame themselves. Although women experience sexual harassment much more often than their male colleagues, organizational culture— particularly in male-dominated fields—may have the effect of silencing or discounting female employees who speak up.

These factors should put the recent rise of harassment lawsuits into perspective. It’s not that there’s more harassment going on now than ever before, or that more people are making false claims against their employers, but that businesses are reckoning with a long, painful, and underreported pattern of behavior.

Employers can take proactive steps to reduce harassment lawsuit risk, first and foremost, by taking allegations of harassment seriously and demonstrating commitment to workers’ welfare and safety. Take a look at your anti-harassment policy and consider whether it truly matches your company culture. Train employees not to act as bystanders, but to identify and report harassment they’ve witnessed as soon as possible. Keep in mind that the US Equal Employment Opportunity Commission defines harassment as discrimination, so treat it as such.

Nail Down Employee Classification Now—or Pay the Price Later

While harassment and other forms discrimination make headlines, the most active types of employment litigation involve wage disputes stemming from employee misclassification. If you aren’t certain which of your workers are employees and which are independent contractors, drop what you’re doing and figure things out now.

Why? Year by year, misclassification suits have increased in number—up by more than 450% from 2000 to 2016. And FLSA lawsuits are expensive. The agency files virtually all as collective actions, representing the most significant exposure to employers out of all workplace laws. When you consider the success rate among plaintiffs attorneys and the involvement of other government bodies, settlements have reached an all-time high—to the tune of $2.5 billion in 2015, compared to $1.87 billion in 2014.

Keep Your Drug Policy Up to Date with the Rest of the Country

Finally, if that wasn’t enough to get your thumb hovering over your attorney’s number, consider all the ways the current legal landscape around drugs poses risks for your dealership. The American cultural perception of marijuana (or cannabis, or weed, or pot), is shifting so fast that we’re having conversations about it before we’ve even decided on a single word for it.

Millions of people depend on legal access to medical marijuana to treat real diseases and disorders such as epilepsy, glaucoma, chronic pain, anxiety, arthritis, and cancer. In some states, including California, Washington, Oregon, and Colorado, cannabis is approaching a level of ubiquity on par with alcohol and cigarettes.

At the same time, the substance remains a federally classified Schedule I drug, leaving employers around the the country in a legal morass. Can an employee claim that their use of cannabis is protected under the Americans with Disabilities Act? No—at least, not yet. Do employers have a federal obligation to prohibit the consumption and possession of marijuana around the workplace? Maybe, but possibly not… Ask again later.

The point here is that things are changing and will continue to change for the foreseeable future. Twenty-six states, plus the District of Columbia, have legalized marijuana/cannabis in some form. Full federal legalization efforts seem to have momentum, so nationwide law—and your legal obligations—could change in an instant. Make sure to continually revisit your employee handbook and discuss the drug policies therein with a lawyer or compliance expert.