In Memoriam: Bill Klinger


An employer and the union representing its workers need to work together most of the time but every couple of years when the contract expires they can be at loggerheads. Negotiations are usually contentious and sometimes the folks at the table are loud and abusive.  But not always–sometimes negotiators can disagree without being disagreeable.

Bill Klinger was one of those union negotiators who could effectively get his points across while always retaining his polite demeanor and good sense of humor.   The American Federation of Musicians Local 369 lost a giant when Bill passed away earlier today.

Bill and I negotiated several contracts together.  Yes he was always on the other side but  I always enjoyed my time with him.  Parrying with Bill was risky–he possessed a quick and sharp wit–I rarely matched him.

He and AFM Local 369 represented the musicians of the Las Vegas Philharmonic in contract negotiations.  I can only imagine the challenges facing a union negotiator but I am certain that trying to reconcile the sometimes divergent views of 70 or so passionate professional musicians takes some real patience and skill.

I knew that Bill had good credentials but was not aware of how impressive his background was until I read his bio on the AFM website today.  A graduate of the Juilliard School of Music, a member of the Miami Symphony and eventually a  professor at University of Miami, Bill played with the most famous conductors, instrumentalists and opera stars the world over.  There’s much more–read the entire bio here.

While doing all that he also found time to begin representing his AFM local in Miami in contract negotiations.  When I started working with him a few years ago he had a few more years of negotiating experience than I did–he started negotiating for the Miami Symphony when I was about five years old.

We all lost a good soul today, we hope Bill rests in peace and we offer our sincere condolences to his loving wife Maxine.

Posted in collective bargaining, General, Labor Law, Unions | Leave a comment

Meals are Good for Employees–Especially When Shared

Lunch sticky note.Okay, being Italian I was raised based on the belief that “Food is Love”.  No matter how loud and heated our family discussions became, having them over a meal made it OK. Plus what better way was there to welcome a family member who stops in for a visit.

That same concept holds true for the workplace–and now real scientists have confirmed it!  This article describes a study which confirms that people who eat together are happier, less inhibited and are more apt to compromise.  Perhaps they behave that way because they want to be accepted and please others.  Perhaps chewing raises levels of the feel-good brain chemical serotonin.

It really doesn’t matter why we think eating together is good for communication and bonding–centuries of well fed Italian families have already proven the concept.

Would it help in the workplace for employees to eat together–of course.  But I am not so much talking about peers.   We can encourage or even schedule such events and that is good.  But what really would help any workplace is for supervisors and higher level management to share meals with all levels of employees.  Not just the occasional Employee of the Month Luncheon or the monthly Lunch with the Boss.   Those are good things and should be done. But how about supervisors and executives actually sitting down for a casual lunch with rank and file employees and front line supervisors.

We hear about CEOs who randomly drop by the employee break room or employee dining room to catch lunch and that’s great.  But how often do a group of managers go the to dining room and eat together–effectively scaring off anyone one or more ranks below them.  Managers should go to the lunch room alone and join whoever is there as long the people that they join are not in a management or supervisory position. Of course managers should also be eating with their management level subordinates from time to time but I think that likely happens.  (But note that front line supervisors are more likely to be thought of as line level employees and not often joined for meals by upper level management.)

How can companies encourage this type behavior?

  • Of course modeling is the best way–if the CEO does it frequently maybe the VPs will get the idea and so on down the line.
  • What about making “workday social interactions with subordinates” a specific behavior included on the Annual Performance Evaluation.
  • Maybe give managers a budget to bring lunch in for the team from time to time.

I hope everyone in management already knows the list of potential dividends these types of activities will yield.   For those needing to hear it:

  • Better morale
  • Less turnover
  • More productivity
  • Less chance anyone will think a union can make the workplace better!

If you have successes with this idea please let me know.


Posted in General, Management | Leave a comment

The 2015 Nevada Legislature—What Can Employers Expect?


As far as most non-governmental employers are concerned, the Republican sweep of the Nevada Legislature will likely be known for what laws won’t be passed. I think employers will not see new or stricter laws in the following areas:


  • Protections for employees using medical marijuana.
  • The availability of bigger dollar damages in discrimination cases under state law.
  • The definition of or regulation of independent contractors.
  • Changes to the state wage/hour/overtime law.


I do predict serious debate and probable action on laws dealing with:


  • Whether local governments should still be obligated to engage in collective bargaining with employees.
  • Even if collective bargaining is required, which subjects will not be subject to bargaining but will be left to the discretion of the local government employer.
  • No matter what public employee unions can bargain over, will all automatic wage and benefit changes continue to occur even after contract expiration (the “evergreen doctrine”).
  • Whether public employee contracts should permit employees to use paid time to carry out union business.
  • Will public employee unions be required to annually disclose financial information. (See why this issue is important here and in the next bullet point).
  • Whether taxpayer paid local government payroll systems should be used to provide unions with free payroll deduction services for union dues and political contributions. (Of course without transparency of union finances that innocent-sounding “dues” deduction could include money the unions use for political purposes.  See the preceding bullet point on the transparency issue).
  • Whether and how the public employee pension statute (PERS) is changed.
  • Whether union protesters should be given a pass on complying with the Nevada stalking laws. (See NRS 200.575 (g)(1).)
  • Whether contractors (and ultimately the taxpayers) working on Nevada public construction projects must pay the union dictated “prevailing” wage and benefit rate.
  • Whether employers should be subject to the risk of a defamation suit just because they try to tell their side of the story. (See why this issue is important here.)



The public employee collective bargaining reforms will be in play because conservatives will insist on changes in return for supporting any tax proposals.  The debate will be off to a good start especially thanks to some excellent ideas set out in Las Vegas Review Journal editorials here and here.  In addition, the assembly caucus has hired a former NPRI staffer and he will have a serious game plan.

Expect unions to mobilize quickly—especially the large international unions that represent both local government employees and private employers. The ones to watch are the SEIU, Teamsters,  Operating Engineers and of course the Firefighters.  Even if the unions feign a willingness to agree to certain “reforms” Republicans will be very cautious.  The last time there were “compromises” the very adept union lobbyists who know every nuance in NRS 288 were able to avoid giving up anything significant.



Stay tuned!

Posted in collective bargaining, Discrimination, General, Independent Contractors, Labor Law, Public Sector Unions | Leave a comment


Locked padlock US dollar currency concept

A new lawsuit recently filed by a local union might be overlooked as just another dispute over money.  But what makes the case noteworthy is the fact that unions rarely air their dirty laundry in public–especially when it involves the alleged misappropriation of the union’s money.


The Service Employees International Union (SEIU) Local 1107 represents a number of Clark County employees including those working at UMC, the RTC and the LVCVA.  Local 1107 sued its former President, Chief of Staff and Financial Officer for the alleged conversion and misuse of over $47,000 in union funds.  The union also seeks punitive damages in excess of $140,000.00.  You can read the lawsuit here.


It’s pretty serious stuff for a union to sue one of its union “brothers” or “sisters” just because they allegedly compensated themselves too well.  Wouldn’t it have been easier and less embarrassing to just sweep it under the rug—especially when this particular union took in nearly $5 million in dues last year and on December 31, 2013 had nearly $300,000 in cash on hand?


Well, either the current leadership of the union was intent on doing the right thing or perhaps the union felt it had to go after the money because its finances are subject to public scrutiny.  SEIU Local 1107 is one of the few public employee unions that also represents employees in the private sector—notably most of the large for-profit hospitals in town.  Because it represents private sector employees a federal law, the Labor Management Reporting and Disclosure Act (LMRDA), regulates it.


Congress believed unions needed regulation for a very good reason. “Like any functioning organization, a union must make financial decisions on a constant basis. The ability of the union to perform its representational functions depends on the availability of sufficient financial resources. Also, like any other institution, concentration of authority over the management of money entails the risk that authority will be abused. Unlike their commercial counterparts, unions do not have a tradition of hiring financial experts to manage their affairs. Workers who have had no financial training before their election to union office become, upon election, responsible for managing funds and property in amounts beyond their experience. As one court has acknowledged, union officials ‘are neither accountants nor controllers: Their positions as union leaders demonstrate their organizational rather than financial expertise.’”  Labor Union Law and Regulation (2003),William W. Osborne, Jr.(Editor).


That is why in 1959 Congress passed the LMRDA, which imposed, among other things, an obligation on unions who represent employees in the private sector to file annual financial reports with the federal government. You can see SEIU Local 1107’s most recent report here.  The federal government does not have the ability to regulate unions that only represent public employees.  Regulation of public employee unions are left to the states.


So therefore, what do the hundreds of members of other Nevada public employee unions know about where their dues money goes?  Nothing.


There are some small pockets of Nevada public employees who are represented by unions subject to the LMRDA, for example: Teamsters (Local 14 in Las Vegas and Local 533 in the North), International Union of Operating Engineers (IUOE Local 501 in Las Vegas and IUOE Local 39 in the North) and of course the International Union of Elevator Constructors Local 18. But the vast majority of Nevada public employees (and the Nevada taxpayers in general) are entitled to no information whatsoever on the how the unions handle their money.  Keep in mind that the large police and fire unions handle massive amounts of dues money and some own substantial buildings and land.


To uncover how a Clark County teachers’ union chief got paid  $632,000 in compensation in one year a lot of digging was necessary—read about it here.  In the rare case there may be a press report on some internal financial impropriety like this: “Case against ex-head of police managers union closed quietly”.   You can tell by the headline itself that the union wanted the public (and maybe the members) to know nothing.  That story was reported by Jane Ann Morrison.  Sadly, Morrison retired this past Labor Day and only a few in the press can dig so well.



Other states have dealt with the problem of invisible union finances by passing a state law similar to the LMRDA.  Alabama, Kansas and South Dakota require public employee unions to file annual financial reports with the state.  Minnesota and New York require the unions to give an annual financial report to their members.  The states use various enforcement tools from barring an offending union from collecting dues to fining the union’s officers.


Shouldn’t Nevada’s public employees have similar protection?  In 2011 Assemblyman Mark Sherwood courageously proposed Assembly Bill 105.  The bill only required the unions to prepare an annual financial report and “make it available for inspection upon request” to any member who paid dues in the prior year.  Of course it would have been better if it required public filing of the report like the LMRDA.  The bill also lacked a good enforcement mechanism.  But at least Mr. Sherwood tried to do something.  Not surprisingly the bill never made it out of committee.


You can expect the unions to complain that finances are an internal matter that does not involve the employer, the taxpayers or the public.  But doesn’t the handling of dues money impact the public?  After all, the local government payroll systems used for dues deduction is owned and operated by the taxpayers.


Also many unions have the right to use local government space for union meetings, and to use local government email systems, or local government wall space for bulletin boards.  Doesn’t that taxpayer provided free stuff permit unions to use dues money for other things?  Shouldn’t unions have to account to the local government how well they are safeguarding and using that dues money?


Plus what about the union business time that many local governments pay for?  Shouldn’t the taxpayers be able to see how the dues money is being spent?  Maybe through better spending habits or by safeguarding against theft there would be plenty of dues money to pay for all of the business that unions do.  Then the taxpayers wouldn’t need to pay any employees for union business time—what a novel concept!


Perhaps in the coming legislature some brave legislator will try again to require some accountability from the public employee unions.



Posted in collective bargaining, General, Labor Law, Public Sector Unions, Unions | Leave a comment

Continue Caution When Speaking of Former Employees—Even During Litigation!

woman powerNevada has for a long time recognized an absolute privilege for defamatory statements made during the course of judicial and quasi-judicial proceedings.  That is why an employer can safely say things about a former employee which might otherwise be defamatory in court papers, unemployment claim responses or in a deposition or on the witness stand.  That privilege applies even when the motives behind the statements are malicious and made with knowledge of their falsity.

Therefore the law provides strong protection for employers who make statements in court or administrative proceedings.  But what about while the court case is pending—can the employer say those things directly to the press before they are even written in court papers or uttered in a deposition or from the witness stand?  Before the Nevada Supreme Court’s May 30, 2014 ruling in Jacobs vs. Adelson the answer would be “maybe”.

Now we know that there is no absolute litigation privilege for statements made directly to the media—even where those statements are likely to soon be made in a pending court proceeding.  Former Las Vegas Sands (LVSC) employee Steven Jacobs was suing LVSC and Sands China Ltd. for wrongful termination.  Jacobs’ court complaint contained a number of unflattering allegations about Sheldon Adelson.

While the Court was considering a motion to dismiss that had been filed by LVSC and Sands China the Wall Street Journal published an online article about the case.  According to the article, Mr. Adelson provided the paper with an email response which contained (not surprisingly) some unflattering statements about Jacobs and his claims.

Jacobs then amends his lawsuit to add a defamation claim against Mr. Adelson personally based on his alleged statements to the Wall Street Journal.  I’m guessing that Mr. Adelson’s lawyers felt relatively confident, (as would I and the three dissenting members of the Nevada Supreme Court), that the defamation claim would be barred by the absolute litigation privilege.  The respected and level-headed trial judge Elizabeth Gonzalez also agreed that the privilege applied and summarily dismissed the claim.

The Nevada Supreme Court in a 4-3 ruling held that because the statement was made to the media and the media was “neither a party to the lawsuit nor inextricably intertwined with the lawsuit” there was no absolute privilege.  In other words the media did not have an “interest in the outcome” of the case— something the court requires before applying the privilege.

The case was sent back to the trial court.  Of course this doesn’t mean that Jacobs wins.  Truth is always a complete defense and there is a type of qualified privilege and other defenses that could be raised.  But those things still subject the speaker to defend a long and expensive court case—and to think twice about speaking freely during the litigation process—just the things the absolute privilege was supposed to help folks avoid.

Just think about the absurdity of this result:  had Mr. Adelson first filed an affidavit in court containing the allegedly defamatory statements in it and then in response to the Wall Street Journal article sent the paper a link to the document or a copy of the document itself he would have been home free: bingo-absolute privilege! The Culinary Union made that law in a case filed against it by another casino magnate.

Justice Michael Cherry in a well-written dissent recognizes that we are in a era of an unrelenting 24 hour news cycle:

Through the media’s access to the judicial process, Jacobs was allowed to tell his side of the story with impunity. To say that Adelson must wait to respond through a legal channel is absurd. There is no reason to constrain Adelson’s response to future legal briefs and motions. It makes no difference if Adelson’s statements were made in his legal briefs or directly to the media—the result is the same, widespread dissemination to the public. Adelson should not be subject to defamation claims in this instance merely based on the platform that he used.

Ok so I’m in the company of three very smart Supreme Court justices when I say the case was wrongly decided.  But employers need to live with this new the law and here are some reminders:

  • Continue to be detailed and honest in administrative filings and testimony with the Courts, the Employment Security Department and other government agencies.
  • Don’t discuss employee or former employee issues with other employees unless they have a business need to know.
  • Respond to employment verification/reference requests only with dates of employment and positions held.
  • When an employee or former employee has filed a court case against the company do not make statements to the press about the employee or former employee.  Once you have filed papers with the court you (or preferably your attorney) should direct the media to your court filings.

Of course it sometimes is bad business to remain mute in the face of scandalous allegations by a disgruntled former employee—whether as part of a lawsuit or in some other context.  Get legal counsel involved right away—there are several low risk ways to publicly respond and you should do so.

Posted in Defamation | Leave a comment




Should an employee be entitled to a job protected leave of absence under the FMLA in order to fulfill her terminally ill mother’s lifelong dream of a family trip to Las Vegas?

If you work in Chicago the answer is YES! Actually if you live in Illinois, Indiana or Wisconsin this is the now the law according to the United States Court of Appeals for the Seventh Circuit in a case decided on January 28, 2014.

The case is based on the section of the FMLA that permits an employee to take leave to care for a family member who has a serious health condition.  The law is clear that the “care” encompasses both physical and psychological care.

It is not clear that employees in Nevada would have the same freedom to take a job protected leave to fulfill an ailing relative’s lifelong dream of visiting Wrigley Field.   The normally liberal Ninth Circuit Court of Appeals has been somewhat circumspect on this issue.

The Ninth Circuit ruled against two employees who wanted job protected FMLA leave to accompany sick family members on out of town trips.

In the first case an employee took time off to pack up and move her depressed fourteen-year-old son from California to the Philippines to live with relatives.  The boy had been beaten by several acquaintances.  The mother said that the purpose of the move was to keep the boy safe from further beatings.

In the second case the employee took a cross-country trip to retrieve the family vehicle during his wife’s late-stage pregnancy difficulties.  Although his wife did not accompany him on the trip the employee called her regularly on his cell phone from the road.  The employee claimed that having a working vehicle provided psychological reassurance to his wife and his phone calls provided moral support and comfort.

In a refreshing breath of rationality the normally liberal Ninth Circuit ruled against both employees.  The Court pointed to one part of the FMLA regulations, which explain that the care can encompass providing “psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.”

In the depressed teen-age son case the Court observed that the boy was not being moved to the Philippines to receive superior or any medical or psychiatric treatment.  In fact there were no specific plans to seek medical attention for him and he did not even see a doctor for five months after arriving in the Philippines.  Oh, and there were no psychological services within a three hour drive of the rural area where he was taken to live.

In the pregnant wife case the Court held:

Instead of participating in his wife’s ongoing treatment by staying with her, he left her for almost four days. Tellis claims his trip provided psychological reassurance to his wife, but he did not travel to Atlanta to participate in his wife’s medical care. Having a working vehicle may have provided psychological reassurance; however, that was merely an indirect benefit of an otherwise unprotected activity — traveling away from the person needing care. Tellis also claims his phone calls provided moral support and comfort, but his phone calls during his trip did not constitute participation in ongoing treatment. Common sense suggests that the phone calls Tellis made do not fall within the scope of the FMLA’s “care for” requirement.

Of course the facts in the Chicago case were different.  The employee was indeed taking care of her mother at home and the mother was terminally ill and needed significant medical care.  The employee accompanied her mother on the trip and presumably provided the same daily care for her while in Vegas that she was providing at home. What would the Ninth Circuit do with those facts? My crystal ball is in the shop but it is fair bet that the result would be similar.

Bottom line: Out of town employers: keep ‘em coming—Vegas needs the business.  If you are an employer here in Las Vegas, (or an employer anywhere else who wants to protect the business from potential abuse of leave), take the following steps when an employee requests leave to care for a family member with a serious health condition:

  •  Be sure that the employee has filed a timely and complete certificate of health care provider as part of the leave request
  • Be sure that the certificate is completely filled out and actually says what the employee believes it says
  • Don’t hesitate to use your rights under the regulations to request a second opinion or recertification in appropriate situations.

For more information on the FMLA check out this and this.

Posted in FMLA, General | Leave a comment

Five Things That Did Not Happen to Employers in 2013

It seems that the EEOC, the DOL, the NLRB, the unions and plaintiffs’ lawyers are always on the verge of doing something that causes headaches or worse for employers.  There were things employers feared or hoped for in 2013.  Here are five to think about and plan for in 2014.

#1       The pace of wage-hour claims did not slow down

We saw continued aggressive enforcement of minimum wage and overtime laws by the Nevada Labor Commission and the US DOL during 2013.  The following issues were the most troublesome for employers:

  • Which Nevada Minimum Wage applies?  See this for help.
  • When is daily overtime due under Nevada law?  See this for help.
  • Can an employer force a tip sharing arrangement on employees?  The answer in Nevada is generally yes.  Despite the 9th Circuit’s clear holding that the federal tip sharing rules do not apply to non-tip credit states like Nevada, you can expect the DOL to continue to try and meddle in tip-sharing programs.  The most fertile area for litigation in Nevada involves who can particpage in a tip pool.  For now Steve Wynn has cleared the way for certain employees who look like supervisors to participate in a tip pool.

The US DOL has set out its priorities in its 2014 budget justification document:


At the FY 2014 Request Level, WHD requests $243,254,000 and 1,872 FTE. These resources will support a continued shift to greater directed and complaint enforcement activity in priority industries and will offer an improved customer service approach to complaint handling in lower priority industries. WHD will continue to increase its number of compliance actions, but anticipates that continued gains in compliance actions concluded will be incremental as WHD maintains its emphasis on conducting quality case work and concentrates on no-violation cases through effective compliance screening and investigation targeting. At the request level, WHD is increasing its percentage of directed investigations. WHD data show a higher number of employees affected and greater back wages on average for directed investigations.


 The agency will continue to use its directed investigations to increase WHD presence in high risk industries, i.e., those industries with high minimum wage and overtime violations and among vulnerable worker populations where complaints are not common.

For more good information follow the Fisher & Phillips Wage and Hour Blog.


#2       The scrutiny of employers who use independent contractors did not stop

While state coffers continue to hurt, various agencies continue to aggressively audit employers who use independent contractors.  See this for assistance.

The US DOL also aggressively investigates misclassification issues.  In fact, in its budget justification document, the DOL requested $3.8 million in its FY 2014 budget to, among other things, hire 35 FTEs for increased enforcement related to misclassified workers.  In an effort to help out the states and put employers under further pressure the DOL also promised to “leverage its relationships with other federal, state, and local agencies and with worker, employer, and community organizations.”

For more good information follow the Fisher & Phillips Wage and Hour Blog.


#3       The NLRB did not formally issue its “quickie election” rules

 After a federal court quickly struck down the NLRB’s proposed quickie election rules nothing much happened.  However the proposed rule is still on the NLRB’s official agenda.  With a full and legally appointed and confirmed NLRB you can count on this rule be officially reissued during 2014.  Here (see Step #3) is how to start getting ready.


#4       A number of public sector unions in Nevada did not get the memo that local government budgets are in still in horrible shape

Some local governments are seeing their way to modest COLAs and some unions are getting them in arbitration.  But as for the long term structural changes that must be made to public sector compensation many unions just don’t get it.  Look for upcoming fact-finding and interest arbitration proceedings made necessary by unions who refuse to give up the kinds of benefits which are disappearing across the state and the country:

  •  Longevity
  • Automatic (“springing”) raises to pay the employees’ portion of PERS increases
  • Employer payment of retiree health benefits


#5       The EEOC did not shrivel up and blow away

The EEOC did not stray much from its previously stated enforcement priorities.  It did have a setback in court when it tried to challenge an employer’s right to use criminal conviction information in hiring.  While the EEOC’s broad attack was unsuccessful in that particular case, you must exercise care not to make hiring decisions based solely on a criminal conviction without looking at the specifics of the situation.  See this for assistance.

Posted in Discrimination, General, hiring, Independent Contractors, Interest Arbitration, Labor Law, Minimum wage, NLRB, Overtime, Public Sector Unions, Union avoidance, Wage-hour | Leave a comment

Tell Your CPA About This Program Right Away!

Most certified public accountants and other accounting professionals are not only employers themselves but also help their employer clients navigate many tricky waters.  We decided that our CPA clients and friends would benefit from a breakfast briefing on the hot topics facing them and their clients.  The program is scheduled for Wednesday December 11 at the Tuscany Suites.

Now for the first time we have put together a special half-day update designed just for CPAs and accounting professionals.  In addition to an in-depth discussion of the tricky Nevada minimum wage and overtime law, learn about the multi-pronged attack that government agencies and plaintiffs’ lawyers are waging against employers who misclassify employees as independent contractors.

And of course our expert benefits attorney will provide attendees with up to date information on what they and their clients need to know about the Affordable Care Act.

Register and get more information here.  Or you can call Michele Pacconi at (702) 862-3808.

Not a CPA?  Watch for information about special breakfast briefings coming up in 2014 designed specifically for the Restaurant/Nightclub industry, the Health Care industry and the Construction/Homebuilder industry.

Posted in Benefits, General, Independent Contractors, Minimum wage, Overtime, Wage-hour | Leave a comment

Should the Bishop Link Arms with Unions?

The Las Vegas Sun recently published an article reporting criticism of the Roman Catholic Bishop of Las Vegas, Joseph Pepe.  Sources quoted in the article felt that the Bishop has not been publicly vocal about the need for immigration reform.

I believe many Roman Catholics in the Las Vegas business community generally support immigration reform in some form.  Many unions support immigration reform too.  However, while some unions spend time and their members’ dues to help immigrants, it is also well known that many unions like to link up with religious groups and use the immigration reform hot button to harass good, ethical businesses whose employees simply do not want a union to represent them.

Whatever the Bishop’s reasons are for his approach to this issue, I support him.  There is no need for the church to step into a dispute, which many times ends up being a union organizing tool, and not just a social/political/legal issue.

Posted in Immigration, Unions | Leave a comment

Do You Need Another Reason to Do Harassment Prevention Training for Supervisors?



By now employers know that regular supervisory training on sexual harassment prevention is a must.  (If you need a refresher on the law, download this pamphlet.) Trainers like to trot out the familiar stories about plaintiffs’ attorneys telling employees to document harassment and make complaints.  Or we are reminded about the EEOC’s outreach activities to educate potential plaintiffs.


I had an eye opening experience last week when I accompanied my 12-year-old daughter to a class at our church for middle school students.  The class was to cover sexual abuse.   The topic was covered in a very direct yet sensitive way.  I don’t remember this being covered when I was in middle school back in the olden days but I am glad it is now.


The real surprise for me was that after the sexual abuse video and post video discussion was another video.  This one covered sexual harassment in middle school.  The narrator told us that among students sexual harassment was most prevalent in middle school.  She gave no statistics or citation to authority but I did find this study which likely confirms the assertion.


I was waiting to hear a tortured version of the employment law definition of sexual harassment.  Surprisingly, the video described the basics in easy to understand and generally accurate terms.  “No one has the right to touch you without your consent.”  “No one has the right to say offensive things to you.”  Some of the vignettes illustrated conduct that a court might not decide was based on sex.  But the examples shown were certainly offensive and inappropriate so I’m fine with students being advised to object to it—even if technically isn’t sexual harassment in the legal sense.


Students were advised to tell the harasser to stop or complain to a person in authority.  The big surprise was when the video showed the victim carefully jotting in a small notebook and the narrator instructed the viewers to keep notes or a journal of the harassment.  This is a technique suggested by the lawyers who represent harassment victims and it may make a plaintiff into a better witness before the EEOC or a judge, jury or arbitrator.


Don’t get me wrong, I am not critical of the advice to middle school students—I hope my daughter was watching and listening carefully.  But here is the news flash: based on the education our students are receiving at very early ages, employers need to remember that many future employees coming right out of school will have already attended a class on harassment—even before hearing about the company’s policy.


There are still employers of significant size that have no written policy, (or a poorly worded policy), on harassment or who have neglected supervisory training for a long time.


Bottom line: don’t be the first company to be a loser on the newest reality show:  Are Your Supervisors Smarter than a Middle School Student? 

Posted in Employment Law, General, Harassment | Leave a comment