Employers defend harassment claims not involving a loss of tangible employment benefits (i.e., hiring/firing, promotion, reassignment, changes in benefits) with a two-prong defense. First, they show that they exercised reasonable care to avoid such conduct and eliminate it if it occurs (an effective policy and prompt corrective action). Second, employers show that the complaining employee failed to act with reasonable care to take advantage of the policy. Employers are successful in obtaining summary judgments in such scenarios where the employee flounders on the second prong by either totally failing to use the policy or doing so belatedly – even as short as two to four months after the incident occurred. Complaining employees try to keep their claims alive, often by claiming that their failure to promptly invoke the harassment policy was not unreasonable. A generalized fear of retaliation, unsupported by specific evidence, has not carried the day for employees, and employers have successfully disposed of such cases on summary judgment.
A recent National Labor Relations Board decision – Circus Circus Casinos, Inc., 366 NLRB No. 110 (June 15, 2018) – has shed new light on what constitutes a unionized employee’s request for Weingarten assistance in an investigatory interview or disciplinary hearing. According to the long-established precedent set forth in NLRB v. J. Weingarten, Inc., an employee is entitled to assistance from a union representative when the employee reasonably believes that disciplinary action may result. This right to a union representative arises “only in situations where the employee requests representation.”
Fear of creatures that lurk in deep water is pretty universal – for confirmation, look no further than the numerous summer movies featuring unexpected attacks by fierce underwater predators with sharp teeth. Inevitably, none of the victims seem to have any tools that will actually save them. One after another, their tools break, and their escape attempts fail pitifully. Unfortunately, such movies give the impression that the only protection from these predators is staying out of the water altogether.