Combating Sexual Harassment In An Open Office Environment

By Robert G. Chadwick, Jr, Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

For the past several years, studies have debated the benefits and detriments of open offices as viable working spaces. One of the benefits touted by open plan proponents is the deterrence of employee misconduct, such as sexual harassment, that privacy often enables.

Even in an open office, however, the risk of sexual harassment persists, albeit in forms unique to the work environment. The absence of walls and barriers may even provide more, not less opportunities for subtle forms of harassment. After all, open floor plans are specifically designed to facilitate close interaction among employees.  

A new study entitled “Doing gender in the ‘new office’” published in the journal Gender, Work and Organization, for instance, shows that open areas may subject female employees to increased leering or staring by male employees, and more comments regarding their personal appearance.

Other risks of an open layout include looming, crowding, brushing and stalking. Seemingly innocuous gestures, words and phrases by employees may actually have sexual connotations.

The formation of employee cliques is also a danger of an open office. Employees huddled together and whispering and giggling may seem innocent to some, but may actually be perceived by others as a form of harassment.

The more open an office environment, moreover, the greater the threat of ostracization of an employee or group of employees. Ostracization can be a powerful form of harassment or retaliation for a complaint of harassment. Fear of ostracization can also deter complaints of harassment.

In some respects, an open office environment may even be more hostile to an employee than a traditional office environment. Without walls or barriers, the employee is constantly sensitive to the surroundings. With no office or cubicle to which the employee can retreat, the affect of harassment can be constant throughout the work day.      

In implementing strategies for combating sexual harassment, employers must thus be mindful of the unique risks presented by an open office. Harassment and retaliation policies and training should address not only overt forms of harassment, but also subtle forms of harassment. Supervisors should be trained to detect and redress subtle forms of harassment. Employees should have private avenues for reporting harassment without fear of retaliation. Without a strategy tailored to an open office environment, the employer risks poor work performance, attrition and legal liability.

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Predictive Scheduling: Yet Another Type of Law For Employers To Worry About

By Robert G. Chadwick, Jr., Seltzer, Chadwick, Soefje & Ladik, PLLC.

In recent years, the rights of applicants and employees have been expanded significantly through new state and local initiatives. These initiatives have included ban-the-box laws, which protect the rights of applicants with criminal conviction records, paid sick time laws, harassment training laws, and laws which ban inquiries about the salary history of job candidates.

In 2014, San Francisco became the first jurisdiction to adopt another new type of employment law. The Formula Retail Employee Rights Ordinances addressed predictive scheduling for employees in the retail industry. As with most new initiatives, other jurisdictions, including Seattle and New York City, quickly followed suit. On July 1, 2018, Oregon became the first state with a predictive scheduling law.

So, what are predictive scheduling laws?

Predictive scheduling laws vary from jurisdiction to jurisdiction. Common components, however, include:

* Advance written notice to an employee before the employee’s work shift.

* Rest periods between work shifts.

* The right of an employee to decline any work shift not included on the employee’s written schedule or which encroaches on a rest period.

San Francisco, Seattle and Oregon allow for variances, but subject to compensation schedules favorable to employees. New York City has completely banned the practice of on-call scheduling.

Which employers are subject to predictive scheduling laws?

For now, predictive scheduling laws apply only to employees of retail, hospitality and food services establishments. Some legal scholars, however, are predicting the laws could expand to other industries.

Where else are predictive scheduling laws under consideration?

In New York, a proposed new State Labor Department predictive scheduling regulation was published for comment on November 22, 2017. A predictive scheduling ordinance is currently under consideration in Chicago. Proposed legislation has also been introduced in Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina and Rhode Island.

What should employers take away from these developments?

As noted in a previous article on this blog, states and municipalities are increasingly the new frontier in employment law. For multi-state employers, this reality presents multiple challenges, including (1) understanding new types of laws for which guidance is sparse or nonexistent, (2) keeping up with fast-changing laws in multiple jurisdictions, and (3) compliance with laws which vary from state-to-state and municipality-to-municipality and which frequently have location-specific mandates. Although these challenges are more daunting with the passage of each new law, the price for not facing the challenges can be fines, damages, or worse.