Sexual harassment prevention 101: NO STRIP CLUBS

Last month, the EEOC held a public meeting on preventing workplace harassment. Entitled, Revamping Workplace Culture to Prevent Harassment, it's the agency's second meeting since forming its Select Task Force on the Study of Harassment in the Workplace, and its first in the #MeToo era.

The EEOC discussed the need for employers to take a holistic approach to change workplace culture to prevent harassment.

Somehow, the EEOC missed "No strip clubs for employees" as one of its anti-harassment talking points.

Managing Election Day at work

As tomorrow is Election Day, I thought I'd share a few tips for employers to keep in mind.

When salary is a proxy for age discrimination

Jim Boylan, recently fired as an assistant coach with the Cleveland Cavaliers, has filed an age discrimination lawsuit against his former employer. According his lawsuit [pdf], then-head coach Ty Lue told him that team owner Dan Gilbert "wants to go younger" in his position and "find somebody who's a grinder and younger."

On its face, those statements certainly seem like direct evidence of age discrimination.

But are they?

WIRTW #530 (the “trick-or-treat” edition)

Imitation is the sincerest form of flattery, correct?

View this post on Instagram

It’s so embarrassing when someone shows up wearing the exact same costume. #sorcle #twinning

A post shared by Jon Hyman (@jonhyman) on Oct 28, 2018 at 2:27pm PDT

Here's what I read this week:

VOTE for the ‘Worst Employer of 2018’ — polls are open

All year long, I've been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2018.

I've narrowed my list down to my choice for the top 15 naughty employers.

Voting will take place over two rounds, a preliminary round and a final round.

In the preliminary round — which runs from today until Nov. 21 at 11 pm — you will be able to vote for up to 4 choices. (For ease of reference, I've summarized each nominee, as well has hyperlinked back to the original nominating post.)

I will then tally the votes, and, in early December, I'll be back with the finalists, to offer everyone the chance to vote one last time to name The Worst Employer of 2018.

Vote, share this post with your friends, colleagues, and social networks, and, most importantly, learn something from the mistakes of these 15 very worthy nominees.


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When you employ a Satanist #HappyHalloween

Rosemary's Baby, the classic 1968 horror film, tells the story of a pregnant woman who (spoiler alert: correctly) assumes that a satanic cult wants her baby. What does Rosemary's Baby have to do with employment law?

In honor of Halloween, I bring you the story of Irving Cortez-Hernandez, a "Catholic-Satanist" who prayed to the Devil for his pregnant co-worker to miscarry, and as a result lost both his job and his religious discrimination lawsuit.

Abortion discrimination = pregnancy discrimination

Is there a more controversial topic than abortion? As controversial and divisive as it might be, the law is pretty clear that an employer cannot fire an employee for having one.

Anti-Semitism at work

The devastating events of this past weekend served as a sobering reminder that anti-Semitism not only still exists, but it's thriving.

The reality is that anti-Semitism never went away. It has always been there, bubbling under the surface. The current climate in our country, however, has given it permission to boil over.

WIRTW #529 (the “new music Friday” edition)

From time-to-time I like to use this Friday real estate to share new music I'm listening to. Today's  new music also has a pretty cool origin story.

My wife and I vacationed in Sedona, Arizona, in July. And, as most Sedona tourists do, we took a jeep tour through the red rocks. Our tour guide was Brandon Decker. Over the course of our two hour tour we chatted, not just about Sedona, its history, and its mysticism, but also about our families, jobs, and lives outside of the jeep. 

We learned that when he's not driving tour jeeps, Brandon Decker is a professional musician. And not only a professional musician, but a professional musician with a new album about to drop and a national tour about to begin. We did some digging of our own afterwards. He's very accomplished in the Southwest, with seven albums and the title of 2011's Arizona Songwriter of the Year.

We told him about the musician in our family, too. Which led to an invitation for Norah to join him on stage when he stops in Cleveland on November 8.

So check out decker., and his unique brand of psychedelic Americana. I think you'll enjoy it.

Here's what I read this week:

From the archives: The Employer Bill of Rights

I recently came across an interesting blog, entitled, 10 Workplace Rights You Think You Have — But Still Don't. Written by plaintiff-side employment lawyer Donna Ballman, it suggests that employees have far fewer workplace protections than they might think, and rights like wrongful termination, free speech, and workplace privacy simply do not exist.

That post got me thinking about a post I wrote 7 years ago — The Employer Bill of Rights.

How many n-bombs does it take to create a hostile work environment?

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, "How many n-bombs does it take to create an unlawful hostile work environment?"

So as not to bury the lede, the answer is one.

Why the federal government's culture war against LGBTQ rights might not matter

You would do well to remember just how fluid is gender

"Second Wave Goodbye," War on Women

According to the New York Times, the Trump administration is poised to wage war on transgender rights.

The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth….

What you need to know about your office lottery pool

Late Friday afternoon (when the Mega Millions was only a mere billion dollars), I received a phone call from Brian Duffy, a reporter from our local CBS affiliate. "We are doing a story on office lottery pools. Are you the right person for me to interview about some of the legal risks?"

Two hours later, he was sitting in my living room with a cameraperson, interviewing me.

WIRTW #528 (the “paranoid” edition)

It's been a few months, but Fake ID was finally back on stage last weekend.


There's not much in life that makes me happier than seeing Norah perform.

Here's what I read this week:

Essential functions are judged by operational realities, not job descriptions

Tony Gunter worked as a press operator for Bemis, Inc., printing graphics for the outside of Huggies diapers. In January 2013, he injured his right shoulder on the job, continued to work for the next seven months, and ultimately opted for surgery when his ongoing physical therapy did not cure the injury.

He returned to his press operator job in December 2013 with temporary restrictions: no reaching with his right arm and no performing overhead work.

Timing of retaliation is key factor in reinstatement of employee's lawsuit

"See something, say something" is one of the most important elements of any workplace intent on stopping harassment. Employers are supposed to empower employees to report any harassment they witness, whether or not they are the target. Key to this idea is ensuring that employees who report harassment do not suffer retaliation as result. Retaliation of any kind will chill efforts of employees to say what they see.

With this background in mind, consider Donley v. Stryker Sales Corp. (7th Cir. 10/15/18) [pdf].

OSHA softens its hard line against workplace safety incentive programs and post-incident drug testing

It's been two years since OSHA announced its hard-line interpretation of its then newly announced anti-retaliation rules—that using incentive programs to penalize workers for reporting work-related injuries or illnesses, and that conducting post-incident drug testing without a reasonable possibility that employee drug use could have contributed to the reported injury or illness, constitutes unlawful retaliation under OSHA.

Last week, OSHA published a memo, which specifically clarifies that it "does not prohibit workplace safety incentive programs or post-incident drug testing." [emphasis in original]

What does this mean?

The 17th nominee for the “worst employer of 2018” is … the hedonistic harasser

Some call it horseplay. I call it sexual assault. And the 17th nominee for the Worst Employer of 2018.

Robert Smith worked behind the meat counter at Rosebud Farm, a small Chicago grocery store. It only took a few weeks after he started work for his male coworkers (including his direct supervisor) to start harassing him. They groped and grabbed his genital and buttocks. They reached down his pants. They repeatedly mimed oral and anal sex on him. And they did this for four years.

WIRTW #527 (the “Yeezy” edition)

There's a lot to say about Kanye's bizarre Oval Office meeting with President Trump.

But the most shocking? His iPhone password is "000000."

lmao Kanye's iPhone password is 000000 pic.twitter.com/mEM5Tjq0po

— Del Slappo (@misterjamo) October 11, 2018

Please, please, please, DO NOT DO WHAT KANYE DOES.

According to howsecureismypassword.net, Kanye's password can be cracked instantly. In other words, it's not a password at all.

You can read more about the importance of password security for you and your employees here.

Here's what else I read this week:

Make your business cyber-aware for National Cybersecurity Awareness Month

October is National Cybersecurity Awareness Month.

Let's see how good your cyber-awareness is.

Do you know the top method of cyber-attack?

#HimToo is a BAD bandwagon on which to jump in your workplace

since she deleted it here’s a screenshot. one of the greatest posts of all time pic.twitter.com/Z6TUKOjH9T

— KT NELSON (@KrangTNelson) October 8, 2018

#HimToo

A hashtag started as a reaction to #MeToo, put forth by those who believe that false accusations of rape and sexual assault against men are common and happen way too often.

Employers, #HimToo is dangerous to your workplace.

How does one measure the impact of #MeToo at its first anniversary?

It's been one year since the the New York Times reported allegations of sexual misconduct against Harvey Weinstein that started the #MeToo movement. Since, at least 425 prominent people across industries have been publicly accused of sexual misconduct.

The story, however, goes beyond the rich, and the famous, and the powerful. #MeToo has permeated every corner of our culture.

The EEOC just released its preliminary data on its handling of sexual harassment charges for its 2018 fiscal year—October 1, 2017, through September 30, 2018—a year that syncs almost too perfectly with the first year of #MeToo.

Court reminds that economic realities, not corporate formalities, govern independent contractor status

The distinction between independent contractors and employees continues to confound employers.

At issue in Acosta v. Jani-King of Oklahoma (10th Cir. 10/3/18) [pdf] is whether the Department of Labor could continue its FLSA claims on behalf of individuals who provide cleaning services as franchisees of a janitorial company. If the franchisees are independent contractors, then the FLSA does not coverthem. If, however, the company misclassified them as independent contractors, then the DOL has something to litigate.

WIRTW #526 (the “pumpkin” edition)

Pumpkin pie. Pumpkin spice. Pumpkin carving. Pumpkin festivals. Fall is officially the season of the pumpkin.

What are you doing Sunday, October 14? I'll be enjoying the return of Fake ID, as Norah and her bandmates take the stage from 11 – 1 at the Hiram House Camp Pumpkin Festival. They won't be hard to find on the property; just follow the music. Tickets are only $5 and are available here (kids under 12 are free).

Here's what I read this week:

Are you planning to take advantage of the IRS's employer tax credit for paid family and medical leave?

When Congress reformed the tax law earlier this year, one key change that might have flown under your radar is an employer tax credit for paid family and medical leave.

The IRS has a helpful Q&A available here.

EEOC sues Walmart for not hiring a congential amputee

The EEOC has sued Walmart on behalf of a woman who claims the retailer failed to hire her for a stocker job after it learned that she born without a right hand.

The Houston Chronicle has the details:

"I'm going to need every Saturday off; is that gonna be a problem?"

Darrell Patterson had worked in Walgreens' 24/7 call center for six years without incident. He claims Walgreens fired him for skipping an emergency training session held on a Saturday. He's a Seventh-day Adventist, and it's against his religion to work on the Sabbath (from sundown Friday through downs Saturday). Until his firing, they had worked cooperatively to schedule around this religious prohibitions, without incident.

Patterson's religion and Walgreens' scheduling came to a head in 2011, however, when Walgreens asked Patterson to cover an emergency Saturday training session. When he missed the training class, Walgreens fired him.

5 steps to take when an employee sues your company

I've written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company's HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It's the simple the cost of doing business.

WIRTW #525 (the “pogo” edition)

I have no idea if he managed to hit the right keys, but he's sure mastered the entertainment part of this rock 'n' roll thing.

View this post on Instagram

Donovan mastering the art of pogo keyboarding #sorcle

A post shared by Jon Hyman (@jonhyman) on Sep 23, 2018 at 4:47pm PDT

Here's what I read this week:

Don't Lindsey Graham your company's harassment investigations

What am I supposed to do, go ahead and ruin this guy's life based on an accusation? I'm just being honest. Unless there's something more, no, I'm not going to ruin Judge Kavanaugh's life over this. But she should come forward. She should have her say. She will be respectfully treated.

 – Senator Lindsey Graham

He-said/she-said cases of sexual harassment are difficult. You are making a decision that will impact the lives of two (or more) people often based solely on your evaluation of the credibility of the complaining employee, the accused, and witnesses (if any).

Cuyahoga County bans LGBTQ discrimination

Cuyahoga County, Ohio, my home county, has lately been on the receiving end of some bad press. Season 3 of Serial just landed on your podcast app of choice, and it does not portray my county's criminal justice system in the most positive of lights.

So, today, I thought I'd share something positive from Cuyahoga County.

Yesterday, the County Council passed legislation prohibiting LGBTQ discrimination in employment, as well as housing and public accommodations.

Don't ignore state law when considering wage-and-hour issues

In Integrity Staffing Solutions v. Busk, the U.S. Supreme Court held the employees of an Amazon fulfillment center were not entitled to be paid under the FLSA for time spent waiting in line for a post-shift security screening.

And yet, last week, in parallel litigation under Nevada state law, the 6th Circuit Court of Appeals just held that time spent undergoing mandatory security checks is compensable under Nevada law,  reversing a contrary lower court ruling.

The 16th nominee for the “worst employer of 2018” is … the sexist, racist, xenophobic, oh my!

"Jon, your first 15 nominees this year were so awful. How are we supposed to decide which is the worst, and please stop adding nominees. You're only making our job harder."

Well, dear readers, sorry. Sometimes, I pick the nominees, and sometimes they leap off the screen begging to be nominated.

WIRTW #524 (the “total disaster” edition)

Any week Rhett Miller releases new music into the world is a week worth celebrating. Earlier this week Rhett released "Total Disaster," the first song of his upcoming album, The Messenger, due out November 9.


It's a brilliantly sad song about the mess one can make of one's life and how it impacts those around you. In fact, the entire album promises to be a bit on the darker side. A few months ago, on Chris Shiflett's "Walking the Floor" podcast, Rhett talked about some of the album's themes:

[The album's title] comes from a bridge in a song called "Human Condition." There were some of these songs where I kind of went back to my 14-year-old self. When I was 14, I had a real serous suicide attempt, and that's when I started addressing my issues of depression and mental health. It's not something I've talked about until recently, but now that I've got kids around that age, I was like, "Oh shit, I've gotta talk about this, because it's become over-stigmatized." I started thinking abut the 14 year-old that was in that space, and I started thinking, "If I was to go back and write a letter to myself…" I wish I could go back to my 14-year-old self and be like, "Dude, chill out. It’s going to be ok."

As if this isn't news enough, one week later, on November 16, Old 97's will release their very first Christmas album, Love the Holidays—nine original holiday tunes plus a cover of "Auld Lang Syne."


You can read all about these projects at Old97s.com, and both albums are available for pre-order from ATO Records. 

Here's what I else I read this week:

What employment sins are you atoning for this year?

Yesterday was Yom Kippur, the Jewish Day of Atonement.

For the uninitiated, it is the day on which we make peace with God for all of the sins we've committed over the past year. On Rosh Hashanah God writes each person's name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and our fellow humans. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

I explain it to my Catholic children like this. Catholics (are supposed to) confess their sins each week. Jews save them up one shot on Yom Kippur. We've yet to try the chicken swinging; they're not ready for it. (I'm not sure I am, or ever will be, either).

There's a new sheriff in town at the NLRB

Last week was a big one at the National Labor Relations Board.

First, the Board announced its intent to modify its joint employer standard. This move, while not unexpected, is nevertheless significant. You can read all of the backstory on this issue here.

Sexual harassment allegations unjustifiably ruin people's lives only if they are false

Peoples lives are being shattered and destroyed by a mere allegation. Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused - life and career are gone. Is there no such thing any longer as Due Process?

— Donald J. Trump (@realDonaldTrump) February 10, 2018

Yesterday, The Washington Post published Christine Blasey Ford's decades old allegations of sexual abuse she claims to have suffered at the hand of Judge Brett Kavanaugh, Supreme Court nominee. You can read the full letter here.

WIRTW #523 (the “radio radio” edition)

Earlier this week, I guested on AirTalk®, 89.3 KPCC in Los Angeles. I discussed the rights of employers to access information on employees' personal devices. It's an interesting and timely topic, in light of a lawsuit recently filed by an ex-managing director of an investment firm, accusing his former employer of hacking into his home computer to read his personal emails and obtain other stored data.

Where is the line between a personal device and a work device, and does the law make a distinction if the device is used for work?

Click here to listen to our discussion. And a huge thank you to Larry Mantle and his staff for having me on.

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In other news, if you find yourself in Cleveland's southwestern suburbs this Saturday at 2:30 pm or next Sunday at 3:30 pm, stop in at Slim & Chubby's, in Strongsville, to experience Norah and Donovan getting their School of Rock punk on. Green Day, Bad Religion, Rancid, The Interrupters, The Distillers, Frank Turner, and more Green Day.

Here's what I read this week:

Do you have employee-theft insurance?

The Philadelphia Insectarium and Butterfly Pavilion, a science museum showcasing one of the largest living arthropod collections in the United States, recently suffered a catastrophic loss. Crooks heisted over 80% of its collection — 7,000 of its rare insects, lizards, and snakes, valued at over $40,000.

According to The New York Times, police believe this to have been an inside job. Three current or former museum employees are the suspects. The evidence? Security-camera footage, plus staff uniforms hung from knives that had been stabbed into a wall.

The 15th nominee for the “worst employer of 2018” is … the tasering torturer

Was this a car dealership or the set of Hostel 4?

Jason Cox worked as a car salesperson for Marietta Motors. According to Cox's lawsuit, for the entirety of his 10 months of employment, the company's owner, Travis Westfall, engaged in a continuous and unrelenting campaign of verbal and physical abuse and harassment.

Cox claims that Westfall:

• Repeatedly demeaned him based on his large size, with names such as "Tiny," "Fat Ass," and "handicapped."
• On numerous occasions, pointed at Cox the red laser-sight of the handgun he kept at work.
• Placed the handgun to Cox's chest while telling him not to make any sudden moves.
• More than once held knives or other sharp objects to Cox's throat while demanding that he not make any sudden movements.
• Told Cox that he could "slit [his] throat and sleep just fine at night."
• Struck Cox with a soda bottle on his surgically repaired leg.
• Punched Cox repeatedly.
• Lit fires near Cox.
• Duck taped Cox's phone to his hand and head while he was talking.
• Repeatedly shocked Cox with a taser, to the point that his co-workers attempted to hide the weapon from Westfall.

Cox also claims that Westfall captured the abuse on video and shared it on social media. 

Ultimately, claims Cox, he quit and fled the workplace, but not before he claims to have suffered severe and permanent mental and physical injuries.

If even a portion of this stuff happened, not only will it qualify Marietta Motors and Travis Westfall for a well-deserved nomination for the Worst Employer of 2018, but it will also result in a very large and warranted payday for Jason Cox.

Everything you want to know about employee polygraph tests

Lie detector tests, have been all over the news lately. Reports suggest that Donald Trump wants to administer these examinations to the entire White House staff to identify the author of the anonymous New York Times op-ed.

There are no laws prohibiting the White House from using polygraphs in this manner. The federal law that regulates their use in the workplace—the Employee Polygraph Protection Act of 1988—does not apply to the government.

For private-sector employers, however, the EPPA imposes strict prohibitions on the use of any device to render a diagnostic opinion as to the honesty or dishonesty of an individual.

Do you really want to be the employer that bans your employees from wearing Nike products?

Last week, Nike launched its new ad campaign featuring (former) NFL quarterback Colin Kaepernick. He's most famous for being the first NFL player to kneel during the national anthem. As a result, he's become a lightning rod around our national conversation about race relations. He claims the NFL has blackballed him because of his outspokenness on the issue.

WIRTW #522 (the “back to school” edition)

If your kids go back to school and you don't post photographic evidence, does it count?

View this post on Instagram

First day of school: 7th and 4th grades. Also, I've officially entered the "Dad, you're embarrassing me" years.

A post shared by Jon Hyman (@jonhyman) on Aug 22, 2018 at 5:09am PDT

Here's what I read this week:

Compliance-by-carrot trumps compliance-by-stick

Democratic administrations are about enforcement.
Republican administrations are about education.

The endgame is still enforcement, but each side approaches this goal very differently.

This dichotomy might be an oversimplification, but, in at least in contrasting the Obama Administration to the Trump Administration, it is very true.

The FLSA's exemptions are becoming more "fair" for employers

In Encino Motorcars, LLC v. Navarro, the Supreme Court ruled that overtime exemptions under the Fair Labor Standards Act "are to be given a 'fair reading,' meaning they are not to be construed too narrowly" (as had historically been the case).

The Court applied this "fair reading" standard to conclude that automobile service advisors are exempt under the FLSA's automobile-service exemption.

Training won't fix stupid

A fast-food restaurant fired a recently hired employee after its manager learned she was pregnant.

How do we know this was the manager's reason for the termination? Because he texted it to the employee (which she later posted on Facebook).

WIRTW #521 (the “master of my domain” edition)

What's the top employee issue that makes HR folks queasy? Drugs? Sex? Pornography?

According to Robin Schooling, the worst conversation to have with an employee is about sexual self-pleasuring at work.

What's the most uncomfortable conversation you've ever had with an employee? Please share in the comments below.


Here's what else I read this week:

Does the FMLA protect organ-donation surgery as a "serious health condition?"

Organ donors are living saints. If you are in need of an organ to save your life, and someone is willing to sacrifice a kidney, or a liver segment, or bone marrow, and selflessly accept the pain and inconvenience, you are very, very fortunate.

Sacrificing one's organ to save another's life should not also result in sacrificing one's job.

Earlier this week, the U.S. Department of Labor Wage and Hour Division published Opinion Letter FMLA2018-2-A [pdf], which answers the question, "Does organ-donation surgery can qualify as a "serious health condition" under the FMLA?" (Thanks to Eric Meyer for bringing this to my attention.)

The answer is yes.

The FMLA defines a "serious health condition," in part, as an "illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility." "Inpatient care" means as "an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care."

According to the United Network for Organ Sharing, donors usually remain in the hospital four to seven days after the harvesting surgery. Thus, because organ donation commonly requires overnight hospitalization, it qualifies as a serious health condition covered by the FMLA.

Thus, covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must provide FMLA leave to an eligible employee-donor (someone employed for at least 12 non-consecutive months, who worked 1,250 hours during the 12-month period preceding the start of the requested leave, and who works at a location with 50 or more employees within a 75-mile radius).

What if, however, you are not an FMLA-covered employer? Or the employee-donor is not FMLA eligible? Or they already used up their 12 weeks of FMLA leave? Think twice before you deny requested time off for organ donation.

• Many states have their own specific organ-donor leave laws that require leave above and beyond the FMLA.

• The ADA may require that you grant the time off with, or without, the FMLA or state-specific law. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Nevertheless, the ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

Is it inconvenient for an employer to provide time off to any employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of a leave request for the selfless act donating an organ to save another's life? Absolutely not. While such a decision is likely illegal, it's also undoubtedly inhuman. And it's that inhumanity that will cost your company dearly in front of a judge or a jury.

* Photo by Tim Gouw on Unsplash

I ❤️ my wife, and I ❤️ attendance policies

On August 29, 2003, I married my wife.

The ceremony was to start at 11 am, and by 10:55 I was nervous. Not your normal, "I'm about to get married" nervous, but the, "What the hell, we start in 5 minutes and my bride-to-be isn't here yet" nervous. With no cell phone on me, I just had to have faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Temporary employees have permanent legal rights

Temporary employees do not leave their legal rights at your door. In fact, they enjoy the same rights as your permanent employees.

Consider, for example, EEOC v. Massimo Zanetti Beverage USA, in which an employer recently agreed to pay $65,000 to settle claims brought by a temporary employee that she was subjected to a sexually hostile work environment and fired after repeatedly complaining about it.

The allegations are not pretty.

LaToya Young began working as a temp at Massimo Zanetti in late January 2015. Within 10 days of starting her placement, a male co-worker began making sexually harassing comments to her:

• Telling Young that he had "blue balls" and asking her "Why don’t you help me out with that?"
• Telling Young that he wanted to "suck [her] bottom lip."
• Telling Young that he wanted to have sex with her, often using lewd language.
• Telling Young that he imagined himself engaging in sexual relations with her.
• Telling Young that he would "ball [her] up like a pretzel" and would "have [her] screaming."
• Grabbing his groin area while looking directly at her.
• Blowing kisses at her.
• Licking his lips and biting his bottom lip while looking at her.

Young complained three times to her supervisor. The harassment continued unabated after the first complaint. After the second complaint, Young alleges that her supervisor warned her that going to HR "would jeopardize her employment." After the third complaint, she was fired. 

According to EEOC Regional Attorney Kara Haden, "Employers must take appropriate action to stop harassment of all employees, including temporary workers." She adds, "We hope that this case sends a clear message that the EEOC will hold accountable employers who fail to protect all employees from workplace harassment."

Take heed of this lesson. Your temporary employees have the same civil rights as your permanent employees.

* Photo by Sunyu on Unsplash

7 tips on how to handle cyber-sabotage and other insider cyber threats

Your employees are your company's weakest link, and therefore, your greatest threat to suffering a cyber-attack and resulting data breach. While employee negligence (that is, employees not knowing or understanding how their actions risk your company's data security) remains the biggest cyber risk, another is growing and also demands your attention—the malicious insider.

According to one recent report, malicious insiders are responsible for 27 percent of  all cybercrime. Over at her Employment & Labor Insider Blog, Robin Shea suggests that one recent workplace embarrassment for an employer was the result of internal cyber-vandalism, and not external hacking.

Dark Reading reports on a recent survey, entitled, "Monetizing the Insider: The Growing Symbiosis of Insiders and the Dark Web."

"Recruitment of insiders is increasing, and the use of the dark web is the current methodology that malicious actors are using to find insiders," explains researcher Tim Condello, technical account manager and security researcher at RedOwl.

Cybercriminals recruit with the goal of finding insiders to steal data, make illegal trades, or otherwise generate profit. Advanced threat actors look for insiders to place malware within a business' perimeter security. …

There are three types of people who fall into the "insider" category, says Condello: negligent employees who don't practice good cyber hygiene, disgruntled employees with ill will, and malicious employees who join organizations with the intent to defraud them. 

What is a company to do? I've previously discussed how to protect against the negligent employees who don't practice good cyber hygiene—training, training, and more cyber-training.

No amount of training, however, will stop a disgruntled employee with ill intent, or a malicious employee who joins to do harm.

These latter two categories need more specialized attention—an insider threat program. The Wall Street Journal explains:

Companies are increasingly building out cyber programs to protect themselves from their own employees.… Businesses … are taking advantage of systems … to find internal users who are accidentally exposing their company to hackers or malicious insiders attacking the company. These "systems," however, can prove costly, especially for the small-business owner. While investment in a technological solution is one way to tackle this serious problem, it's not the only way. Indeed, there is lots any company, of any size, with any amount of resources, can do to develop an insider threat program.

Aside from the expense of costly monitoring programs, what types of issues should employers include in an insider threat program? Here are seven suggestions:

1. Heightened monitoring of high-risk employees, such as those who previously violated IT policies, those who seek access to non-job-related business information, and those who are, or are likely to be, disgruntled (i.e., employees who express job dissatisfaction, who are on a performance improvement plan, or who are pending termination).


2. Deterrence controls, such as data loss prevention, data encryption, access management, endpoint security, mobile security, and cloud security.


3. Detection controls, such as intrusion detection and prevention, log management, security information and event management, and predictive analytics.


4. Inventories and audits for computers, mobile devices, and removable media (i.e., USB and external hard drives), both during employment and post-employment. 


5. Policies and programs that promote the resolution of employee grievances and protect whistleblowers.


6. Pre-employment background checks to help screen out potential problem employees before they become problems. 


7. Termination processes that removes access as early as possible for a terminated employee.

No company can make itself bulletproof from a cyber-attack. Indeed, for all businesses, data breaches are a when issue, not an if issue. However, ignoring the serious threat insiders pose to your company's cyber security will only serve to accelerate the when.

WIRTW #520 (the “cucaracha” edition)

Welcome to fun-fact Friday.

The Mexican folk song La Cucaracha has a long and fascinating history. It was popularized during the Mexican Revolution when each army would write verses as battle songs. Amazingly, one such verse, which has become the most popular version of the song, references marijuana:

The cockroach, the cockroach,
can't walk anymore
because it doesn't have,
because it's lacking
marijuana to smoke.

Maybe this explains why Speedy Gonzales was so speedy.


Here's what I read this week:

Dirty Harry, the worst recruiter ever

After yesterday's detective novel of a post, I thought I'd go with something light and airy today (if you consider watching Dirty Harry conduct a job interview of a female interviewee, while sharing his views on feminism and job quotas, light and airy).


My worst job interview? The interviewer forgot my appointment, and never showed up to work. It all worked out in the end. I came back a week later, and that's how I got my first job after law school.

What's you job interview horror story? Share in the comments below, and I'll pull the best (or the worst?) for a future post.

A cautionary tale about an attempted fraud (updated, 11:25 am)

I was recently the target of a highly sophisticated legal-services fraud. Thankfully, this scam set off my Spidey sense from the beginning, and I did not fall for it. I'm sharing so that others can learn the lengths that some will go to steal from professionals. (My apologies in advance. This post is long, but I think it's worth your time.)

An expensive lesson on disability harassment

With of all of the attention the #MeToo Movement has provided sexual harassment, employers must not forget that all forms of unlawful workplace discrimination include unlawful harassment.

This includes disability harassment.

For example, consider Caldera v. Department of Corrections & Rehabilitation (Cal. Ct. App. 7/9/18).