Supplemental materials for LEAP 2025 session Pregnant Workers — New Laws & Evolving Expectations
Q: When do absences due to pregnancy- and childbirth-related conditions become leave due to pregnancy- and childbirth-related conditions? For example, suppose an employee states she is going to be absent because she is not feeling well due to pregnancy and is going to see her doctor. We as her employer consider the day to be covered by the Pregnant Workers Fairness Act, so there’s no need for a doctor’s note. But if she continues to need time off because she is not feeling well due to pregnancy, at what point have we moved from time off for a normal pregnancy symptom and into leave? Should we follow the FMLA rule of thumb of three consecutive days? So one day here and there is covered by the PWFA. But for three or more days, should we ask her health-care provider to certify that the condition is related to pregnancy and estimate the probable duration of her leave?—Kristina, Illinois
A: The FMLA and the PWFA do not always play well together. The PWFA provides reasonable accommodations for common pregnancy-related limitations. These accommodations can include unpaid time off to see a doctor. Such requests should be routinely granted with minimal documentation beyond the request.
The FMLA provides unpaid leave for a serious health condition, including time off for routine prenatal visits as well as time off for other complications that may require longer recovery times. These would also be covered under the PWFA as a reasonable accommodation.
The best approach is to consider each law separately and log absences under both. And while you are supposed to require minimal documentation for pregnancy-related absences under the PWFA, the FMLA allows employers to get medical certifications for covered absences for a serious health condition, including pregnancy complications.
Employers can get the information they need to log FMLA absences while simply noting the same absence as a PWFA accommodation. In the scenario above, log all the time off as a PWFA accommodation at the same time as you log the longer, FMLA-covered absences as FMLA leave.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Proactive Prevention: Identifying and Addressing Workplace Harassment
Re: Employee Lawsuit Risks
You must occasionally talk tough to employees who underperform, act unruly or act in other ways that can hurt the organization. But how can you be forceful without unintentionally using insensitive speech that invites a harassment complaint or, even worse, a lawsuit?
It’s more important than ever for you to walk that fine line. Why? It’s not just a “politically correct” issue. Employee lawsuits relating to harassment and discrimination have risen dramatically in recent years. Allegations of sexual harassment, gender-related claims and race bias account for more than two-thirds of all complaints filed with the EEOC.
The law: Federal law (Title VII of the 1964 Civil Rights Act) prohibits harassment on the basis of an employee’s race, color, sex, religion, age, national origin or disability. (For details, see www.eeoc.gov.) Several states have also established their own anti-harassment laws.
Use the following five common-sense tips to draw a line between tough management and harassment:
1. Don’t criticize employees personally. Avoid statements such as “You can’t do anything right” and “You’re terrible.” That’s especially important if you don’t like an employee, and others suspect that’s the case. Repeatedly berating an employee can establish a pattern of verbal abuse.
If you’re dissatisfied with an employee’s performance, explain the reasons (using concrete examples), suggest ways for improvement, lay out a performance timeline and explain the consequences for not meeting those goals.
2. Avoid extreme rudeness. Examples: yelling an employee’s name across the room or down the hall to correct him or her; frequently telling an employee to “shut up.”
3. Don’t condescend. Avoid comments such as “A 12-year-old could do a better job.” Employees can claim that such comments contribute to a hostile and intimidating working environment.
4. Don’t discipline employees in front of co-workers or customers. In almost all cases, disciplinary actions should be kept strictly on a need-to-know basis. That typically means the employee, his or her supervisor, department head and HR manager. Never make an employee with performance problems into a public example.
In one recent case, a California jury awarded an employee a $10,000 judgment in an invasion of privacy case. The woman’s supervisor had announced at a staff meeting that he was planning to reprimand her; then he announced that fact to an even broader group via email.
5. Watch what you don’t say. Excluding someone from conversations, meetings or projects could be seen as a form of discrimination or harassment. Example: During meetings, a manager calls on every employee, except for one poor-performing woman, to discuss projects and ideas. She may claim the manager purposely humiliated her because of her gender.
Final tip: Weigh your comments to employees against this test: Would you want somebody else to say the same thing to your son, daughter, sibling or parent? Would you say the same thing to a friend in front of that person’s spouse?
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Proactive Prevention: Identifying and Addressing Workplace Harassment
Re: Employee Lawsuit Risks
When managers witness or hear about a possible sexual harassment situation at work, it’s important for them to take the situation seriously. Harassment lawsuits can spiral into multimillion-dollar lawsuits if not dealt with immediately … and employees’ personal bank accounts are at risk, too.
That’s why it’s vital for managers to contact the appropriate company officials in any potential harassment situations. Don’t be swayed by these common excuses you’ll hear from employees:
1. “I didn’t mean it.” It’s not enough for an employee to claim that he or she didn’t intend to be offensive.
Sometimes, the effect of the behavior outweighs the intent of the harasser. Even if the employee didn’t intend to harass, if the target objectively and subjectively felt harassed, the employer could be held liable.
2. “I was just kidding.” Humor, like beauty, is in the eye of the beholder. Again, the effect may outweigh the intent.
3. “That’s the way I treat everybody.” Illegal harassment must be based on gender, race or other protected characteristics. However, court cases have shown that offensive conduct that is not gender-specific still may violate sexual harassment law if there is sufficient evidence of differences in the harassment suffered by female and male employees.
4. “I didn’t say anything sexual.” Sexual harassment is often misunderstood to mean that behavior must be sexual in nature in order to be illegal. However, nonsexual behavior that occurs because of one’s sex can also be considered illegal harassment.
So, for example, calling female employees names that are nonsexual, yet offensive, is a form of sexual harassment.
5. “They’re no angels, either.” The fact that a target of harassment also used foul language or told dirty jokes herself (or himself ) does not mean he or she can never be a victim of harassment.
6. “I wasn’t talking about her.” In this case, the harasser tries to hide behind the fact that the complaining employee was not the actual target of the remarks. But several courts have ruled that employees may experience harassment regardless of whom the racist or sexist remarks were targeted toward.
7. “They weren’t supposed to see/hear.” In a similar way to No. 6, even if the intended audience of offensive pictures or jokes was a willing participant, anyone who accidentally sees the pictures or hears the jokes may also be able to file a sexual harassment claim.
8. “She’s too sensitive.” In some situations, the alleged harasser is right, and the behavior is not as severe or pervasive as the target thinks it is. The court test is how a “reasonable person” would objectively and subjectively perceive the behavior.
9. “It’s just the environment around here.” Certainly, each workplace varies in the degree of civility expected and exhibited. However, the EEOC has said, “Discrimination is unlawful regardless of the job site. It doesn’t matter whether employees work behind a computer or a forklift.”
Be aware of conduct that could spark a harassment lawsuit
– Repeated sexual innuendo, obscene or off-color jokes, slurs, lewd remarks and language, and other offensive sexual comments.
– Sexually offensive content in email messages, notes and workplace graffiti.
– Sexual propositions, insults, threats, leering, whistling or other suggestive sounds.
– Persistent unwanted sexual or romantic overtures.
– Displays of pornographic pictures or other sexual material at work.
– Coerced or unwelcome touching, kissing or other sexual activity.
– Subtle or overt pressure for sexual favors.
Can harassers be personally sued?
When employees sue for sexual harassment, they usually name not only the employer in the lawsuit, but also the individual harasser. While lawyers typically spend more effort going after employers, all managers should be aware that they could be paying for harassment out of their own wallets.
This is also a good point to make to employees who have demonstrated borderline harassing behavior in the past. They’ll back off quickly if they know that their personal fortunes are at stake, not just their employers’.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Proactive Prevention: Identifying and Addressing Workplace Harassment
By Jon Hyman, Esq., Wickens, Herzer & Panza, Cleveland
As fans of the hit TV show Ted Lasso wait for Season 3 to drop, let’s take a moment to review an important employment law lesson from Season 2.
One of the story lines tells of Nate, who transforms from a loveable bullied kit man to an abusive, insufferable coach. At one point he’s seen cruelly unleashing a tirade of anger on an underling, Will.
Nate’s mistreatment of Will is uncomfortable to watch and horrendous management. But is it illegal? The answer is no.
Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin, etc.), bullying is probably lawful.
As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be a “general civility code” for the workplace. In layman’s terms, our laws allow people to be jerks to each other at work as long as it’s not because of a protected reason.
The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace.
If you want to be sued by every employee who faces harsh words (some of whom will be in a protected class), then continue to tolerate abusive employees. If you want to crush employees’ morale and cause emotional distress, then let bullies go unchecked. If you want to lose well-performing workers, then allow them to be pushed out the door by intolerable managers or co-workers.
What can you do to protect your workplace from this misconduct and all of the problems that it will cause?
1. Review current policies. Most handbooks already have policies and procedures that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards-of-conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.
2. Take complaints seriously. These policies are only as good as how they are enforced. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.
3. If you see it, do something about it. Bullies who go uncorrected become empowered to bully more. You cannot let this happen. Let them know, as soon as you notice misbehavior, that such misconduct is contra to company policy and culture, that it will not be tolerated and that if it continues, the employee will be terminated.
In other words, take seriously bullying in your workplace. Or, in the sage words of Coach Beard, “Do better.”
Jon Hyman is a partner at Wickens, Herzer & Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. You can read his popular blog at www.OhioEmployerLawBlog.com.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Proactive Prevention: Identifying and Addressing Workplace Harassment
A startling 46% of employees say they have witnessed workplace harassment in the past five years, according to the new State of Workplace Harassment Report from Traliant, a compliance training provider. Its survey of more than 2,000 U.S. workers reveals critical gaps in how organizations prevent harassment and respond to it—gaps that Traliant says could cost employers both money and talent.
Generational differences emerge
The youngest employees—members of Generation Z—reported the highest rates of witnessing workplace harassment at 52%, compared to just 33% for baby boomers. Such a significant gap suggests younger workers have different perspectives on what constitutes harassment. Additionally, Gen Z identified harassment from external parties (clients, customers, patients) at higher rates than other generations, 21% compared to a generational average of 14%.
Reporting barriers persist
While most harassment incidents are reported, concerning trends emerged around reporting channels and outcomes:
Training and policy gaps
The survey identified several areas where organizations are falling short:
Remote work impact
An interesting finding emerged around work arrangements: 51% of remote employees reported feeling “extremely protected” from harassment, compared to just 38% of fully in-person workers. This suggests that employers with traditional office environments may need to institute additional anti-harassment safeguards and protocols.
Effect on workplace belonging
The impact of harassment extends beyond immediate incidents. Among employees who said they had experienced harassment:
The numbers are significantly better for those who haven’t experienced harassment, with 82% saying they feel protected.
Harassment-prevention strategies
The report outlines several key steps organizations can take to build safer workplaces:
1. Improve awareness. Traliant recommends providing ongoing training about physical, verbal and visual forms of harassment. Use scenario-based training to help employees understand “gray areas.” Ensure employees and supervisors alike know how to recognize subtle forms of harassing conduct.
2. Strengthen reporting mechanisms. Implement multiple, easily accessible harassment-reporting channels, including ways for employees and managers to anonymously file reports. Clearly communicate reporting procedures to all employees.
3. Address industry-specific needs. Harassment abounds in some work environments more than others, especially those that are male-dominated or those in which employees work far away from home-office oversight. Employers should customize anti-harassment policies and training to reflect the unique dynamics of their workplaces. Consider the specific challenges that may exist within your industry. Adapt anti-harassment training so it reflects the realities your workforce faces.
4. Prevent retaliation. Implement confidential harassment-reporting systems. Create safeguards to protect employees who report incidents. Establish and publicize clear anti-retaliation policies.
Creating lasting change requires more than just implementing policies and training programs. Employers must address the fundamental fears that prevent employees from reporting harassment while ensuring swift, effective responses when incidents occur.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session What Keeps HR Up at Night: Strategies to Help You Sleep Well
By Jon Hyman
It’s not easy to stand firm in today’s polarized world, but Costco just showed everyone how it’s done.
Recently, Costco’s board rejected a shareholder proposal aimed at rolling back its diversity, equity and inclusion (DEI) initiatives. Instead, the company doubled down on its commitment to making its workplaces inclusive and equitable.
In a statement, the retail giant wrote, “Our Board has considered this proposal and believes that our commitment to an enterprise rooted in respect and inclusion is appropriate and necessary. Our success has been built on service to our critical stakeholders: employees, members and suppliers. Our efforts around diversity, equity and inclusion follow our code of ethics.”
Predictably, the backlash came fast, with calls for a boycott from some corners. Unlike many other companies, however, Costco didn’t buckle under the pressure of a right-wing boycott. Instead, it stood its ground for what it believes in.
No matter what some people will yell, scream and post, DEI isn’t about politics. It’s about creating a workplace where every employee feels valued and empowered. It’s about giving people from all walks of life a fair shot to succeed. And guess what? The businesses that get DEI right don’t just do better ethically—they outperform financially.
Costco’s stance is more than just admirable—it’s the kind of leadership we should all strive for. Standing for what’s right isn’t always the easiest path, especially when there’s a risk of backlash. But real leadership isn’t about taking the easy way out; it’s about doing what’s right, even when it’s not popular.
Other companies should take note. If you’re committed to your values, don’t back down just because a few people are yelling louder than the rest. Stay the course. Your employees and customers will notice, and they’ll respect you for it.
Also, bonus points for shorter lines and more tasty samples for me.
Jon Hyman is a partner at Wickens Herzer Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. Read his popular blog at www.OhioEmployerLawBlog.com.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session What Keeps HR Up at Night: Strategies to Help You Sleep Well
The ethics of our profession require HR practitioners and leaders to behave in ways that are beyond reproach when it comes to carrying out HR duties and in their personal conduct at work. That’s especially true when it comes to administering anti-bias and anti-harassment policies.
When those who are supposed to guarantee a bias-free work environment are the source of bias and harassment, that is a potent source of legal risk. Before a judge or jury, nothing plays worse than an HR pro whose attitude or behavior screams, “Do as I say, not as I do.”
Recent case: Shana worked for Marathon Petroleum as an HR supervisor. Her role included providing comprehensive HR support to employees and conducting investigations. She was also responsible for advising employees on Marathon’s workplace policies, including its harassment policy.
When the company held three leadership team conferences, Shana attended. After meeting up for post-conference drinks, Shana apparently imbibed too much. The next morning, she texted one of her co-workers a lewd comment. More drinking, profanity and “off-color” jokes followed at the other meetings—all behavior prohibited by Marathon’s harassment policies.
One of the attendees later filed a complaint about Shana’s conduct.
A Marathon internal investigation determined that Shana had violated company policy and should be fired. She resigned and then sued, alleging that one of the other attendees once asked her a risqué question about the color of her pubic hair.
The court tossed out Shana’s lawsuit, noting, “It is undisputed that multiple employees reported … that [Shana] made repeated, sexualized comments. … Multiple employees reported that [her] language was inappropriate or made them feel uncomfortable. Several employees also reported that working relationships had been compromised or that the HR team had no credibility due to [Shana’s] behavior.”
In addition, the court stated that Shana could not prove that she was satisfactorily performing her job when she resigned in lieu of being fired. She had violated the very policies she was supposed to enforce. Plus, she could point to no one treated more favorably than she was. (Troyer v. Marathon Petroleum, DC CO, 2024)
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Wage-and-Hour Pitfalls: Avoiding Common Employer Mistakes
Download Audit: Test Your Overtime Compliance.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Wage-and-Hour Pitfalls: Avoiding Common Employer Mistakes
Many states and municipalities have wage-and-hour laws that go beyond the mandates of the federal Fair Labor Standards Act. The FLSA sets the floor for wage-and-hour rules, but states and cities are free to set standards that are more generous to employees. For example, the FLSA doesn’t require paying employees weekly, but some states do.
Recent case: Southwest Airlines employs baggage and cargo handlers at each airport where it operates. No matter where they work, those employees are all paid every two weeks.
Now, two Southwest baggage handlers have sued for wage-and-hour violations, and they want to make it a class-action lawsuit representing all similarly situated baggage handlers.
They claim that because they’re paid every two weeks, Southwest has failed to pay them on time. Why? Because the state of New York, where they work, requires that all manual workers be paid weekly. The law states that manual workers must be paid “at least once a week, not more than a week” after the work is done. The law defines manual workers as those who spend more than a quarter of their time performing physical tasks. Other workers in New York can be paid twice per month.
The lawsuit seeks damages of $100 million. If the court approves class-action status, the potential damages will rise. (Strain, et al., v. Southwest Airlines, ED NY, 2025)
Advice: Ensure your payroll department (or your payroll processor) is familiar with wage-and-hour requirements wherever you operate.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Staying Ahead of Immigration Audits and Investigations
Download Acceptable I-9 Documents.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
