Mental health and mediation of workplace disputes

I have recently been asked if resolving workplace disputes by mediation is still viable if one of the parties is suffering from mental health issues. The quick answer is that it makes use of that process even more desirable, but this being Mental Health Week, let’s take a closer look.

The first point to make is that absolutely everyone who turns up as a party to a mediation does so in some degree of heightened mental state or disturbance: uncertainty, fear, aggression, desperation or simply a child-like faith that if they sit in their room long enough the mediator will bring them on a plate a deal they are happy with. The point at which any of those emotional states trip over into something clinically recognisable as a mental health condition and/or a disability is neither clear nor relevant to the mediator.  The existence or suspicion of a metal health issue is just something else which he/she must take into account in the conduct of the process, just as for a physical condition or impediment.

In the main, the things which make mediation work for the great majority of parties to it are the very same things which should increase its attractiveness and efficacy for those suffering with a mental health condition. For example:

  • The process is non-judgmental. The mediator is not there to allocate blame or to criticise. While he/she will have to pass on responses from the other side which may be hard to hear, the employee still has a safe space within which to receive and digest those messages in his own time.
  • The parties are in control of the process. If the employee needs a break, he can have one. If he wants to walk out, he can.  If he wants to say things which are important to him to the other side then, within limits, he can do that.  If he does not want to see the other side then he probably doesn’t have to.  That is not to say that any of these things are necessarily helpful to the progress of the mediation, and the mediator may well seek to persuade him otherwise, but that is still better than its collapsing there and then through the employee’s inability or unwillingness to continue.
  • Mediation takes place in a strictly confidential environment, allowing the employee to be less concerned that the stress of the process may lead him to do or say something he fears could be used against him later. Less concern equals less stress equals less chance of his doing so anyway.
  • It is possible that he may even hear messages that are more positive than he expected. The employer may express an active wish to work things out with him so that he can come back to work as soon as possible, or it may expressly recognise past successes or efforts which his condition may have led him to think had been ignored or overlooked.
  • He may be accompanied and guided throughout by a friend, family member or lawyer for moral and psychological support.
  • No-one will impose anything on him. If he is not content with the best that the other side can offer, he doesn’t have to take it. In addition, it should be borne in mind that mediation solutions can be about much more than cash – if the mental health issue is caused or exacerbated by work, for example, solutions could include accommodations to address this.  Maybe an agreement for different hours or duties, a change to reporting lines, a transfer, some time off, some form of apology or explanation, and a whole range of other options which an Employment Tribunal simply cannot provide.
  • Obviously this is a world away from being trapped alone on the witness stand facing relentless cross-examination in the glare of a public tribunal. Though there is clearly no need to have any form of mental health condition to appreciate that distinction, it will be more than usually valuable for an employee who does.

Two final points for the employer:

  • It is of course unnecessary to say that there is a world of difference between having a mental health condition on the one hand and being mentally incapable of contracting on the other. An agreement reached at mediation with an employee who has a mental health condition is usually every bit as enforceable as one with someone does not.
  • Because the mediator must be particularly careful to ensure that the employee understands what is happening and the ground rules applicable, he/she may appear superficially to favour the employee and hence potentially prejudice the appearance of neutrality. The sensible employer will appreciate the difference between empathy and sympathy, however, and will not take any such message from the mediators going out of his/her way for an employee who is known to be unwell.

California Supreme Court Clarifies State “Day of Rest” Law

On May 8, 2017, the California Supreme Court issued an important ruling interpreting California’s long-standing “day of rest” law. At issue was whether that law, which requires that employers provide employees one day of rest each week, applies on a work week basis, or if it applies on a rolling seven-day basis. In a unanimous decision, the court concluded that the statute is “most naturally read to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.” This means that employees can be scheduled to work as many as twelve consecutive days in a two-week period, so long as they have one day off in each work week (for example, off on Monday of the first week and on Sunday of the following week). The court’s ruling also clarified that the day of rest requirement can be waived by employees who are assigned to work less than six hours every day in a work week, and no more than 30 hours total per week. For those employees, “employers are only obligated to inform workers of their right to rest, and that workers can waive the right to rest and work extra hours if both parties agree. An employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.” The Court added that any waiver must be formally done to be in compliance with the law.

This week is Mental Health Awareness Week in the UK

What do we mean when we talk about “mental health”?

The World Health Organisation defines mental health as:

a state of well-being in which every individual realises his/her potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.

The key is the reference to “every individual“. Everyone has mental health – it just fluctuates from positive mental health through to mental illness.  We can all agree that promoting good mental health and better understanding of mental illness to help people with mental illnesses in the workplace is an important aim.  Indeed it is something with which most employers have engaged positively over the last few years.  However, there are a number of further barriers to be overcome.

One of these barriers is that when an employee is suffering from poor mental health, it is often a “hidden” illness. For example, if someone breaks a leg, their colleagues and line managers can: a) see it has happened; b) quickly and easily assess his mobility and effect on their work/day to day life; and c) talk to the employee about the issue – whether this is by making jokey comments or signing a cast, or offering him more tangible help, such as lifts to work.  By contrast, there are often few outward signs that an employee is struggling with poor mental health – there is no metaphorical ‘plaster cast’ to sign.  Further, recovery is hard to gauge and will depend on an individual’s circumstances – there is no set equivalent, for example to the complicated physiotherapy plan that my mother has to follow having just fallen down a flight of stairs (get better soon, Mum).  Finally, what outward signs there are of poor mental health often involve an individual withdrawing from their peers, rather than actively seeking them out, occasionally also becoming irritable and/or morose or over-friendly.  All of this means that it can hard for colleagues to interact effectively with someone if they know, or suspect that he has a mental health issue.

Secondly, employees are often afraid to disclose their mental health issues for fear of the stigma which can be associated with them. This can be particularly so in an environment like the City, which (outwardly at least) frequently places a premium on hard work, a ‘can do’ attitude and (in some cases) an all-consuming devotion to your job.  Certain professions within the City have historically been known for having a ‘macho’ ethos in which signs of alleged weakness are viewed as fair game for office jokes and teasing, or as evidence that someone ‘can’t cut it’.

Finally, regardless of how supportive the employer/colleagues would be in reality, the unfortunate fact is that a large number of employees are scared that owning up to a mental health issue may adversely impact their career, promotion or salary prospects, bonus or the like. Often the biggest battle for an employee is not against external stigma, i.e. what his colleagues may think if they find out that he has a mental health issue, but internal stigma, when an individual is so concerned that his disclosure of a mental health issue will adversely impact him (regardless of whether it is objectively likely to do so or not) that they refuse to disclose their issue, almost always just worsening the situation.

So what can businesses do to help? The key feature of the majority of campaigns on this issue is communication – whether it’s Heads Together (backed by the Royal Family), This is Me in the City (the Lord Mayor’s Appeal), Time to Change (backed by Ruby Wax and others), they all urge employers, colleagues and friends to ask just one simple question: “How are you?

This does not mean that line managers and colleagues need to become experts in mental health issues, but it does mean helping them understand the signs of potential mental health issues, knowing when and how to involve HR, and, ideally, the support networks offered by the employer – employee assistance programmes, medical insurance, occupational health, wellbeing and mindfulness training, etc. It is also important that employees know that any disclosures they make will be treated appropriately and that, within reason, their employer will look to help to assist them as this will hopefully help employees overcome their fear of stigma.

Testing times for employers in recruitment assessments

Hot on the heels of our post on indirect discrimination in employee tests for promotion   http://www.employmentlawworldview.com/indirect-discrimination-you-know-what-they-say-about-statistics/ comes another decision posing similar challenges for employers.

Government Legal Service –v- Brookes concerned the Situational Judgement Test (SJT) which forms part of the recruitment process for lawyers wanting to join the Service. Ms Brookes told the GLS in advance that she was likely to find the multiple-choice format of the SJT particularly difficult because of her Asperger’s Syndrome. She wanted to answer the same questions but in short narrative rather than multiple-choice form. That option was not provided by the GLS.  Brookes narrowly missed the SJT’s pass mark and so her candidature for the role fell at that stage.

Brookes claimed that the requirement to use a multiple-choice format represented both indirect disability discrimination and a failure by the GLS to make reasonable adjustments. It was accepted by the GLS that Asperger’s could make dealing with the multiple-choice format more difficult for sufferers than for those without it. However, an indirect discrimination claimant needs to show not just group but also individual disadvantage.

The principal question at issue in the EAT was therefore whether Brookes could show that she herself had been prejudiced in that way. The medical evidence was not definitive – even the GLS’s own expert conceded that some people with Asperger’s would find that format a problem while others would not. In addition, the SJT and other tests were a substantial part of the GLS’s process for winnowing several thousand applications down to about 35 successful candidates each year. Statistically there would therefore be perhaps several hundred non-disabled people who equally narrowly failed the SJT. How could Brookes show in those circumstances that it was the Asperger’s that had seen her miss the mark rather than something else?

Both the indirect discrimination and reasonable adjustment claims were upheld by the Employment Tribunal, Brookes representing herself and so potentially putting beyond argument that she was in fact up to the role.

In rejecting the Service’s appeal, the EAT set a standard of proof of individual disadvantage which some employers may regard as disconcertingly low. There was no direct evidence about whether the Asperger’s had caused her to fail but the ET essentially formed its own view from peripheral circumstances, not least Brookes’ cogent presentation of her own case, that she had had adjustments made for her at university, had obtained an ok degree and seemed outwardly committed and intelligent. Although it did not say so in terms, it then appeared to place the burden of explaining the failure on the GLS. Since the Service obviously had no better idea of why Brookes had ticked slightly too many of the wrong boxes than it had as to hundreds of others, it could put forward no counter-explanation.

In fact, the EAT went further. Not only was the ET entitled to reach a finding on that largely circumstantial evidence that Brookes had failed the test because of her disability but actually it had not needed even to go that far – it would have been enough for the ET to find merely that Brookes’ Asperger’s made the test substantially more difficult for her to pass, and not that it had actually been what caused her to fail.

On the reasonable adjustments front, both the ET and EAT accepted that multiple-choice as a format made good sense for the Service because answers could be marked by computer quickly, cheaply and without human subjectivity. Nonetheless, given the scale and duration of the recruitment process and the resources of the GLS, both agreed it would have been possible for a small number of people to have been marked manually on narrative-format answers without undue delay or expense. The Service’s refusal was found to be a matter of principle, not practicability, and so it went down on the reasonable adjustments claim too.

This case plus Essop seems to allow a substantial distance between being statutorily disabled on the one hand and establishing some consequent personal disadvantage from an employer’s PCP on the other. However, neither case means you need to make recruitment or promotion standards lower for disabled people. Neither one requires the employer to water down its tests to the point where they no longer act as a proper filter of good enough from not good enough. The GLS was fully entitled to insist on high-level decision making skills in its candidates, but there is nothing about that skill which requires it to be tested by multiple-choice only.  The skill and the test were different. You can not assess the ability to bang nails in straight by a written test, but you can assess decision-making by other formats which do not have an adverse impact on those with certain mental health conditions.

Lessons for employers

  • If on disability grounds someone asks you to make an adjustment to your assessment processes for promotion or recruitment which (i) does not prejudice its effectiveness as a test of whatever skill set you are testing; and (ii) is logistically doable, then you should probably make it.
  • But even if a request for adjustments is made which you believe cuts across (i) or (ii) above, you should still be seen to examine it with an open mind before rejecting it. Refusal as a matter of unthinking principle will almost always be fatal to your defence.

What Was Your Prior Salary? No Longer a Question You Can Ask When Hiring in New York City.

Last month, the New York City Council approved legislation that bars employers from asking prospective hires to disclose their past salary. In passing the measure, New York City joins Massachusetts (see our post here), Puerto Rico and the city of Philadelphia in banning the question from job interviews and on applications. (Also see our post here regarding a recent Ninth Circuit decision addressing pay history.) The law, known as Introduction 1253-A, makes it illegal for any employer or employment agency in New York City to ask about an applicant’s salary history, including benefits, or search any publicly available records to obtain any such information. The measure, aimed at tackling pay inequity, is intended to stop perpetuating any discrimination that women or people of color may have faced in the past and to end wage disparities between men and women. A study released earlier this month by the National Partnership for Women & Families, a Washington, DC-based advocacy group, shows that women in New York State earn 89 cents for every dollar that men are paid. The pay gap is wider among minority women, the study found. African American women in New York earn 66 cents for every dollar paid to non-Hispanic white men. Latina women earn 56 cents for every dollar.

The measure only applies to new hires, not to internal job candidates applying for a transfer or promotion given that their salary information may already be on file. It also excludes public employees whose salaries are determined by collective bargaining agreements. There are certain exceptions built into the bill whereby employers can consider salary history, including the hiring of internal candidates for different positions, workers who are covered by a collective bargaining agreement or employees who voluntarily give their salary history during an interview.

New York City Public Advocate Letitia James, who co-sponsored the bill last year, said the primary focus of the bill is to promote greater transparency in the hiring process. Although it doesn’t require employers to do so, James said the bill suggests to businesses that they post salaries for jobs instead of relying on workers’ past salary.

The City’s Commission on Human Rights will investigate and enforce the measure, imposing a civil penalty of no more than $125 for an unintentional violation or up to $250,000 for an intentional malicious violation. Those figures are in line with other forms of discrimination — including race, disability and sexual orientation bias — for which the commission issues fines.

Fatima Goss Graves, president-elect of the National Women’s Law Center, said in an email that the measure “stands to transform the way that companies operate around the country,” she said. “So many companies operate in multiple jurisdictions. If a company changes its practices in New York, it is likely to also make changes around the country.” I think what we’ll see is companies that do business in New York City just eliminate that from their applications entirely,” she said. “This will have wide-ranging influence.” Meanwhile, nearly 20 states, the District of Columbia and two cities (San Francisco and Pittsburgh) have introduced legislation that includes a provision against salary history information, according to data from the NWLC.

The new legislation is expected to go into effect later this year, or 180 days after Mayor de Blasio signs the bill.  Employers in New York City need to review their applications and standard job questions to ensure they remove any questions about past salaries.

SPB partner to address key Singapore compensation and benefits conference

Off to a flying start, or what? Not content with hosting the next in our series of international labour and employment law webinars http://www.squirepattonboggs.com/en/insights/events/2017/05/employment-law-worldview-webinar-series-focus-on-asia, our new L&E Asia hub partner Julia Yeo will shortly be treading the boards again with a starring role at the Tower Ballroom – but not dancing and, no doubt to her considerable chagrin, not in Blackpool.

Courtesy of leading Asian employee benefits publication humanresourcesonline.net, Julia is appearing as guest panellist and the only practising lawyer at the 2017 Employee Benefits conference in the Tower Ballroom at the Shangri La, Singapore on 18 May. Sharing a platform with high-profile regional employers including Deutsche Bank, Aon, Mitsubishi, Virgin and the Ministry of Health, she will tackle the vexed issue of how HR can square the particular demands of the gig (contingent) economy worker with best comp and bens practice.

This is apparently Asia’s largest Employee Benefits conference of 2017 and is absolutely not in Blackpool, so please do go along and say hello to Julia if you can.

Pay History: An Improper Factor for Employers To Consider In Starting Salaries? Not Necessarily, According To the Ninth Circuit

As we previously reported to you, pay history has recently become a topic of much discussion among federal, state and municipal legislatures. Many jurisdictions around the country are considering laws that would quell employer inquiries into candidate pay history. The underlying purpose of these laws is to level out the historical pay gap between men and women, which pay history ban proponents argue is perpetuated when employers base starting salaries on candidates’ prior earnings. In fact, many of these pay history bans are part of a larger scheme of pay equality laws. Amidst this movement, the Ninth Circuit announced last week that salary history alone can be used to determine new employee starting salary without violating federal equal pay law.

In Rizo v. Fresno County, Plaintiff Aileen Rizo, an educational consultant, filed suit against her employer, Fresno County, under the federal Equal Pay Act (EPA) after learning she made less than her male counterparts for the same work. The EPA, which prohibits pay disparity between men and women who perform the same work, has a strict liability standard, such that a plaintiff must only prove a pay disparity between men and women who perform the same work exists, and not that the disparity is an intentional act of discrimination by the employer. Because all of Rizo’s counterparts were male and made a higher salary than she did, the County conceded the pay disparity and defended itself by arguing that it fell under an exception to the EPA because it used “any other factor other than sex” to set Rizo’s and her co-workers’ starting salaries. Specifically, the County said it determined incoming salary for new employees by offering them a 5% pay increase above their most immediate prior salary. The County argued this was an objective formula entirely independent of gender.

In considering the County’s motion for summary judgment, which asked the Court to dismiss Rizo’s EPA claim based on this defense, the United States District Court for the Eastern District of California found that using salary history to set current salary was not “any other factor other than sex.” The trial court reasoned that such a practice “is so inherently fraught with the risk … that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.”  For this reason, the District Court concluded the practice could not be valid under the EPA.

On appeal, the Ninth Circuit declared the District Court’s outcome was in direct contradiction to Ninth Circuit precedent interpreting the EPA. The Ninth Circuit pointed to its prior decision in Kouba v. v. Allstate Insurance, Co., in which the plaintiff alleged Allstate violated the EPA. Allstate’s pay system at issue considered pay history, among other factors, in setting new employee salaries. The plaintiff in that case alleged that pay history was the sole cause of the alleged pay disparity. Allstate responded, stating that, to the extent its consideration of pay history did create a pay disparity between men and women, pay history was a “factor other than sex” and therefore the practice did not violate the EPA. The Ninth Circuit agreed. The Court of Appeals specifically found that employers can use pay history to set incoming salary as long as the practice was to effectuate a business policy, and was used reasonably in light of this policy and its other business practices. The Ninth Circuit determined that establishing these factors satisfies the affirmative defense that any resulting salary disparity was determined by a “factor other than sex.”

Based on Kouba, the Ninth Circuit reversed the District Court’s decision in Rizo and remanded the case so the trial court could analyze Fresno County’s business reasons offered to support the pay history practice and determine whether the County used prior salary “reasonably in light of these business reasons and other practices.”

Thus, while this outcome does not automatically green-light pay history-based salary systems, employers in the Ninth Circuit that can establish a business policy and reasonableness of the system may escape the EPA’s harsh penalties. But, as we previously cautioned, this outcome may be in conflict with other affirmative laws prohibiting pay history inquiries, which may end up providing more protection for pay equality than the federal scheme.

House passes bill to allow private employers to offer paid time off in lieu of overtime time pay

On May 2, 2017, the House passed H.R. 1180, The Working Families Flexibility Act of 2017, which would allow private employers to offer paid time off, also known as “comp time,” instead of time-and-a-half wages for overtime hours. Congress had previously amended the Fair Labor Standards Act in 1985 to allow public-sector employees to be given comp time instead of pay for overtime hours worked.

The bill would amend the Fair Labor Standards Act to allow private employers and eligible workers (those that have worked at least 1,000 in the preceding 12 months) to voluntarily agree to 1.5 hours of compensatory time for every hour of overtime worked, for up to 160 hours of compensatory time per year. The requested time would have to be approved by the employer.

The bill provides that no later than January 31st of each calendar year, the employer will provide monetary compensation for any unused compensatory time off accrued during the preceding calendar year that was not used prior to December 31. An employer may provide monetary compensation for an employee’s unused compensatory time in excess of 80 hours at any time after giving the employee at least 30 day notice. Compensation is provided at not less than the regular rate earned when the compensatory time was accrued, or the regular rate earned by such employee at the time such employee received payment of the compensation, whichever is higher. The proposed bill includes provisions that would allow workers to cash out their comp time if they leave the job.

The House passage of the bill for private industry also comes as the Obama administration rule to expand overtime eligibility is on hold nationwide, pending federal litigation in Texas. That rule would double the salary threshold—up to about $47,500—below which workers automatically qualify for time-and-a-half overtime pay.

The bill now heads to the Senate, where some Democratic support is needed to keep it from stalling as it has in past years.

When employee grievances go west: here’s how

In support of a good cause, here is a blatant plug on behalf of the Workplace and Employment sub-group of the Civil Mediation Counsel.

We are big fans of mediation in the employment context (see our Insider’s Guide Series, starting here http://www.employmentlawworldview.com/employment-mediations-an-insiders-guide-part-1/. As a result, we are delighted to have been invited to speak again by the CMC at its Save Time, Save Money, Save Stress conference on how you can use the offering of mediation as an effective and potentially hard-edged device in the resolution of many of the more typical internal grievances.  Even if the suggestion of mediation is rejected or if  a mediation takes place but reaches no resolution, this can still be actively useful in your handling of employee complaints about managers, peers or sub-ordinates.  Mediation does not have to succeed to be helpful to you.

After an inaugural sell-out session (no, really, it was standing room only) in London, the CMC is “getting the band back together” on the afternoon of 28 June 2017 at City Hall, College Green, Bristol.  This is not just another seminar on why workplace mediation is a Good Thing.  Instead it is aimed at helping organisations to bridge the gap between appreciation of it as an abstract concept and its practical implementation as a default part of their grievance and conduct management procedures.

We are sharing a platform with speakers with high-level experience of introducing mediation into sometimes sceptical employers and workforces with great success, including a dispute resolution specialist who is going to do something clever with technology to create an instance audience poll on key questions. It will be of direct practical relevance to any employer which wants to save time, save money, save stress.

One Racial Slur May Be Sufficient To Create a Hostile Work Environment, Says Second Circuit

The United States Court of Appeals for the Second Circuit held last week that a single racial slur might provide sufficient basis for a hostile work environment claim.  In the case, Daniel v. T&M Protection Resources, LLC,  Plaintiff Daniel, a black, gay man from the Caribbean, alleged he was harassed at work on the basis of his race, national origin, and sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (Title VII).  Among other race-based statements, Daniel alleged his supervisor yelled “you f–ing n—r” at Daniel on a single occasion.  The District Court disregarded this comment, holding that, according to the Second Circuit’s precedent in Schwapp v. Town of Avon, this single racial slur cannot, as a matter of law, by itself sustain a Title VII hostile work environment claim.  In a decision vacating the District Court’s order granting summary judgment to Defendant T&M, the Second Circuit disagreed that Schwapp held that as a matter of law a single racial slur can never support a hostile work environment claimThe Second Circuit did not, however, rule on the sufficiency of Daniels’ claim based on this comment, and further “declin[ed] to confront the issue of whether the one-time use of the slur “n–r” by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment,” holding merely that Schwapp “does not foreclose this possibility.”

The Second Circuit also held that the District Court incorrectly disregarded facially neutral harassing conduct toward Daniel that was not overtly based on a protected characteristic, and that such conduct by the same person alleged to be engaged in harassment based on protected characteristics can strengthen a Title VII hostile work environment claim.

Finally, with regard to Daniels’ sex discrimination claims, the Second Circuit reaffirmed its position, stated recently in Christiansen v. Omnicom, about which we reported to you here, that Title VII does not prohibit sexual orientation discrimination, but that it does prohibit discrimination based on gender stereotyping.  The Second Circuit panel further found that the District Court correctly construed Daniels’ claim that his supervisor told him to “man up,” “be a man,” and called him a “homo” as harassment based on Daniels’ failure to comply with gender norms.  Notably, Plaintiff Matt Christiansen of the Omnicom decision, petitioned the Second Circuit last Friday, asking it to revisit its holding that Title VII does not prohibit discrimination on the basis of sexual orientation.  No word as to whether the Second Circuit panel will accept this request.

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