We are just TWO WEEKS away from the 26th Annual HR Law & Solutions seminar – where does time go?!  Our HF team is working hard on final preparations, and we are excited to see that so many of our readers have already registered. If you haven’t registered, there is still time! You can register online now by clicking here or by contacting Gail Lamarche at 239-344-1186 or gail.lamarche@henlaw.com.

For those of you who will be attending, we need your help to make the Employment Law Potpourri session as helpful to our audience as possible. During that session, we will go through a general update on some of the employment/HR-related hot topics that we did not otherwise address earlier in the day, then we will answer questions from the audience. If you would prefer not to waive your hand and ask your question in front of your 350-closest HR friends, please email them to me before the seminar. We will keep your name and company confidential, but we will make sure to address the question in that session. Time permitting, we will also take questions from the floor, so don’t be shy! We will take the written questions first, though, so if you have a burning question you’d like us to address, please do send it my way. You can reach me at suzanne.boy@henlaw.com.

Guest Speaker Steve Gilliland

Make plans to attend the largest employment law conference in Southwest Florida, HR Law & Solutions, now in its 26th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Tuesday, March 6, 2018, for a fun-filled day of education and networking. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers: John D. Agnew, Esquire and Robert C. Shearman, Esquire
John and Bob will provide an interactive update on notable court decisions,
including cases addressing contentious employment policies and contract provisions, discrimination against protected classes of workers, as well as other noteworthy employee claims. EEOC trends and legislative developments impacting employers also will be addressed.

10:00 – 11:00 a.m. When Can I Fire This Injured Employee
Panel: Michael McCabe, Esquire (Moderator); Martha Bryson, SHRM-SCP, SPHR; John F. Potanovic, Esquire; David H. Roos, Esquire; and, Frank W. Piazza, Esquire (Mediator)
A panel of workers’ compensation and employment defense attorneys will be joined by an HR professional and a claimant’s attorney/mediator to address best practices when confronted with discipline or termination of an employee with an ongoing or recent workers’ compensation claim. The discussion will explore issues that can arise when dealing with this sensitive scenario, under workers compensation law, the ADA, and the FMLA, with the goal of avoiding unnecessary costs (wages and benefits) and reducing the risk of litigation.

11:15 a.m. – 12:15 p.m. #MeToo: Addressing the Harassment Epidemic in the Workplace
Speakers: Suzanne M. Boy, Esquire and John F. Potanovic, Esquire
One can hardly turn on the news these days without being bombarded by allegations of sexual harassment against celebrities and other public figures. #MeToo has become a powerful symbol of just how widespread sexual harassment is across the planet, with women and men of all backgrounds and in countless professions sharing their stories of abuse and harassment. In this session, attendees will learn about the many forms of sexual harassment, the types of behavior the courts say constitutes sexual harassment, the EEOC’s guidance and legal considerations regarding harassment, and an employer’s obligations under the law. Attendees will also learn practical tips, including specific actions to foster a harassment-free workplace; how to develop and enforce an anti-harassment policy; and day-to-day management practices that safeguard an organization.

1:45  – 3:15 p.m. Hide Your Goat: Strategies to Stay Positive When Negativity Surrounds You
Guest Speaker: Steve Gilliland
Not only do problem employees perform poorly, they make it tough for everyone else to do their jobs, too. The infection can spread quickly and those who discharge the poisonous toxin are masquerading as managers, supervisors and co-workers. The venom they eject produces by-products of bad attitudes, including resistance to change and personality conflicts. They cost plenty in terms of productivity and morale and make life tough for everyone. They delight in getting your goat! You’ll learn why people have bad attitudes and explore ways to head off conflict and confront people about their bad attitudes. Armed with information you gain from this session, you’ll be on your way to finding win-win solutions that will have you and your colleagues working effectively together. This session is guaranteed to make you laugh a lot, learn a lot, and leave outfitted with the means necessary to Hide Your Goat.

3:30 – 4:30 p.m. Employment Law Potpourri
Panel: John D. Agnew, Esquire; Suzanne M. Boy, Esquire; John F. Potanovic, Esquire; Robert C. Shearman, Esquire; David H. Roos, Esquire; Michael McCabe, Esquire
The legal issues facing HR professionals in the current economic climate are many, and the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced HR professional. Thorough knowledge of employment laws, early recognition of issues, and swift problem solving is key to reducing your company’s exposure to the many employment claims so prevalent today. Have questions you would like answered by the panelists? Email them in advance to Gail Lamarche at gail.lamarche@henlaw.com.

4:30 – 5:30 p.m. Happy Hour
Please join us after the conference for happy hour.

Continuing Education

This conference has been approved by SHRM for 5.75 PDCs and from HRCI for 5.75 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (breakfast and happy hour sponsor), as well as our in-kind partners Charlotte County SHRM, SHRM SWFL, and HR Collier.


Registration is $50 per person and includes a continental breakfast, plated lunch, seminar materials, and valet parking. To online register now, click here.

Join the discussion on social media using the #swflhrlaw hashtag.

We hope to see you soon! For group reservations or questions, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.

Eeoc_logo2Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as my colleague Suzanne Boy noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.

The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.

The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.

What accounts for the increase?

Continue Reading Employee Retaliation Claims Continue to Rise

Last week, I spoke at the Florida Public Human Resources Association’s Annual Conference at the Waldorf Astoria in Naples, Florida.  For the first of my two sessions, I was asked to present on EEOC charges which, as you all probably know, is a pretty timely topic given some of the recent record statistics (almost 100,000 charges filed in 2011 alone!).

If your company has not received an EEOC charge recently, consider yourself lucky.  Since I know so many of you have dealt with or will deal with EEOC charges, I thought I would post some tips on how to respond from last week’s presentation.  In Part One, I will review the basics of what you should do when you receive the charge.  Next week, in Part Two, I’ll offer some tips on how to prepare an effective position statement. 

Side note:  Though the focus of this post is on EEOC charges, the same basics apply to charges filed with the Florida Commission on Human Relations (FCHR).

First up:  The EEOC Came Knocking:  What Should I Do?!

1.  Do not ignore the charge.  Don’t laugh — I have seen this happen!  The charge will not go away if you ignore it.  The EEOC will move on and investigate anyway, with only the employee’s side of the story in the file. 

2.  Notify your Employment Practices Liability (EPL) carrier.  This is an extremely important step.  Do this in writing, so you have a record of the notification.  Not sure whether you have EPL coverage (Hint:  it’s that coverage with the giant deductible!)?  Call your agent.  Better safe than sorry.

3.  Contact counsel.  While you are not required to have representation at this stage in the process, having the assistance of qualified employment counsel can make a huge difference.  If cost is an issue, prepare the bulk of the response yourself, but make sure you have counsel review it before it is submitted.  There are often critical legal defenses, arguments, etc. that should be raised, and lawyers are trained to spot these items. 

4.  Determine and calendar deadlines.  You will typically have several weeks to submit your response.  If you need additional time to prepare a thorough response, ask for an extension.  The EEOC is usually pretty generous with extensions, as long as the request is reasonable.

5.  Check to see if the charge is timely.  Remember, in Florida, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act.  If the charge is filed with the FCHR, the charging party must file within 365 days.

6.  Notify affected managers/decision-makers.  Identify those managers/decision-makers who were directly involved with the allegations in the charge.  Let them know the company received a charge, and he/she will be called upon for information.  Limit this to those managers/decision-makers who are actually involved — don’t make a company-wide announcement.  See #7 and 9 for additional info on manager/decision-makers.

7.  Assemble and preserve documents.  Gather critical documents, like personnel files for the charging party and any alleged comparators, disciplinary documents, etc.  Make sure you instruct managers, decision-makers, IT personnel, or anyone else who may have relevant documents, including emails, to preserve them — the last thing you want is to have to explain missing or, worse, destroyed, evidence.

8.  Plan internal investigation.  This could take up an entire blog post in itself.  Perhaps the most important advice I can give you is to do it quickly.  The sooner you investigate, the better, especially if the charge was the first notice you have of the alleged discriminatory action.   Assistance of counsel can be critical during an investigation.

9.  Prevent retaliation.  If the charging party is still employed, make sure he/she is not retaliated against in any way.  Remember, even if the underlying claim of discrimination or harassment has no merit, if you take adverse action against the charging party because he/she has filed a charge, you can hand him/her a valid retaliation claim.  This doesn’t mean the employee now has immunity from disciplinary action or even termination, but you should take special care in these situations.  Even if the adverse action was not because of the charge, be mindful that the timing can look pretty suspect.  This is an important reason to be cautious with how many managers/decision-makers you notify about the charge.  Though it’s not an iron clad defense, if the charging party’s immediate supervisor does not know about the charge (protected activity), the employee may not be able to show a causal connection between the charge and any adverse employment action he/she suffers after filing the charge.  Keeping information limited to those who truly need-to-know is critical, particularly when the charging party is still employed.

10.  Consider mediation.  In most EEOC charges, the EEOC will offer pre-investigation mediation.  Like investigations, this could take up an entire post in itself.  Briefly, there are many pros to mediation.  It can be speedy, cost-effective, and, if settled, gives you certainty with respect to resolution of the charge.  Though not all cases are well-suited for mediation, I tend to recommend it in the majority of charges.  Legal counsel can help you evaluate whether mediation is an attractive option for your particular charge. 

There you have it — a few basic tips on what to do when you receive an EEOC charge.  Check back next week for tips on how to prepare an effective position statement. 

As a guy, I prefer barbecue-type holidays, such as Memorial Day or the Fourth of July, over Valentine’s Day. As employers, you probably should, too, even if it is for different reasons.

A CareerBuilder survey published in 2011 found approximately 40% of workers have dated at least one person with whom they have worked, and 18% reported dating at least two people with whom they have worked. Clearly, workplace romance is pervasive. With it can come a host of unwanted side-effects, including loss of productivity, ethical dilemmas, depressed morale, and sexual harassment claims.

Sexual harassment claims can arise in a variety of situations, including when a workplace romance goes south.  They can also arise from what one employee might find to be a light-hearted joke, card or funny e-mail, sent to an employee who does not see the humor and might be completely offended.  A sexual harassment claim can even arise when a thoughtful boss gives a Valentine’s Day gift to an employee for a job well done, and the message is misinterpreted.

Since Valentine’s Day is upon us, take this opportunity to carefully review your policies addressing sexual harassment and workplace romances. As you do, consider the following:

  1. Continue Reading A Potential Valentine’s Day Equation: flowers + chocolates = sexual harassment