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Domestic Violence Leave Now Required In Massachusetts

[September 26, 2014]  As of August 8, 2014, Massachusetts employers with 50 or more employees must provide up to 15 days of unpaid leave in any 12-month period for employees’ activities related to being a victim of domestic violence, including seeking medical attention or legal services, securing housing, or attending court proceedings. Massachusetts thus joins more than 20 other states and municipalities requiring such leave. Employees of covered Massachusetts employers may take leave related to their own abuse or the abuse of a covered family member, including a spouse, child, parent, grandparent, grandchild, or sibling.

Employees must give advance notice of their need to use the leave, unless there is a threat of imminent danger to the health or safety of the employee or a member of the employee’s family. Employees must also first exhaust all personal, sick, annual, and vacation leave before receiving unpaid leave, unless the employer’s policy provides otherwise.

The law requires confidentiality for leave-related information. Employers must keep such information confidential and not disclose such information unless disclosure is requested in writing by the employee, ordered by a court, otherwise required by law or in the course of a law enforcement investigation, or necessary to protect the safety of the employee or others employed at the workplace.

Covered employers must notify employees of their rights and responsibilities under the law, including those related to notification requirements and confidentiality.

Similar to other types of job-protected leave, employees who take domestic violence leave are entitled to restoration to their original jobs, or equivalent positions, and are protected from retaliation after taking leave.

We recommend that employers familiarize themselves with the requirements of the law, including its confidentiality provisions, and consult with counsel to prepare a domestic violence leave policy and update their handbooks accordingly.

Getting Your Head In The Game: School Concussion Policies And Protocols

[August 21, 2014]  With the beginning of the academic year underway or imminent, many students are returning to campus for pre-season athletic training. This school year, however, many schools and student-athletes will be governed by new (and perhaps improved) concussion protocols.

Combatting concussions has become a forefront issue in school athletics. Across the nation, legislatures, student athletic associations, and schools are responding to the demand for more comprehensive concussion policies to better protect student-athletes. Indeed, as of January 2014, every state and the District of Columbia had passed legislation regulating the prevention and management of student-athlete traumatic head injuries. In March, the National Athletic Trainers’ Association (NATA) released a new position statement on the management of sports concussions and offered comprehensive guidelines. And just over the summer, California’s governor signed a law that not only limits the number of tackling practice sessions for young football players—to only two, 90-minute full-contact practices per season—but the law also requires one week on the bench for all student-athletes who suffer a concussion.

Although concussion management laws vary from state-to-state, they generally share three pillars—a return-to-play rule, an informed consent requirement, and an education and training obligation. The return-to-play rules regulate the circumstances in which a student-athlete suspected of having a concussion or head injury must be removed from play and when he or she can resume participating in athletics.

Baseline testing is another tool to help manage sports-related concussions. By requiring students to have a pre-season exam to measure balance and brain functioning, medical professionals can better identify and diagnose post-exam head injuries. While no states currently require baseline testing, Rhode Island strongly encourages all youth sports programs (including those operated by private schools) to adopt the practice; and Massachusetts requires public schools and schools that are members of the Massachusetts Interscholastic Athletic Association to mandate that student-athletes provide head injury medical histories.

At independent schools, administrators, coaches, medical support personnel, students, and parents all play a significant role in protecting student-athletes. To help achieve their goal, we recommend including the following components in a comprehensive head injury policy:

  • An action plan policy for all students participating in interscholastic athletics;
  • Protocols for head injuries, including Return to Activity guidelines;
  • Education for parents and students, coaches, medical support employees, and other relevant persons about recognizing and managing traumatic head injuries;
  • Requests for student-athlete head injury histories;
  • Mandatory baseline testing for all student-athletes;
  • Recordkeeping of all head injuries occurring on and off campus; and
  • Policies for students who are suffering from concussions.

In addition, we recommend updating Athletics Handbooks to address concussion management and other issues such as medical emergencies, practice guidelines, and academic policies related to participation in athletics.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for student-athlete head injury policies and protocols.

Some Closely Held For-Profits Exempt From ACA Contraceptive Mandate

[July 23, 2014]  On June 30, 2014, the Supreme Court held, 5-4, that closely held for-profit corporations whose owners have sincerely held religious beliefs opposing contraception need not comply with the contraception mandate of the Patient Protection and Affordable Care Act (“ACA”), which requires employers to provide coverage for all FDA-approved contraceptive methods.  Specifically, the Court ruled that the Religious Freedom Restoration Act of 1993 (“RFRA”) shields such for-profits from providing coverage for contraception methods they find objectionable.

The case was brought by family-owned Hobby Lobby Stores Inc. and another closely held corporation.  Hobby Lobby is controlled exclusively by a married couple and their adult children; each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries.

Hobby Lobby filed suit under RFRA, which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.  Hobby Lobby sought to enjoin application of the ACA’s contraceptive mandate with respect to four contraceptives:  two forms of “morning after” pills and two types of intrauterine devices.  (Hobby Lobby did not object to the other sixteen contraceptives required by the ACA’s contraceptive mandate, including birth control pills.)

The Supreme Court held that for-profit corporations are “persons” within the meaning of RFRA’s free exercise protections and that the challenged regulations substantially burden Hobby Lobby’s exercise of religion. (In support of finding substantial burden, the Court noted that the penalty on Hobby Lobby for providing a non-compliant health plan would equal about $475 million per year, and the penalty for failing to provide health coverage would equal about $26 million per year.)

The Court further concluded that the ACA contraceptive mandate was not the “least restrictive means” of furthering a compelling governmental interest.  The Court explained that the most straightforward way of ensuring coverage for all women “would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.”  Concurring with the majority opinion, Justice Kennedy noted that the government is already doing this for nonprofit religious organizations.  (However, that system has also been challenged in a separate pending litigation.)

The Court indicated that its decision should be read narrowly:  the ruling only extends to closely held companies whose owners have sincerely held religious beliefs opposing contraception, and does not apply to vaccinations, blood transfusions, etc.  However, Justice Ginsburg, dissenting, argued that corporations will inevitably use the decision to opt out of other laws with which they disagree.

In light of this decision, closely-held employers may wish to consider whether to object to the ACA’s contraception mandate, if their owners have sincerely held religious beliefs opposing contraception.  Publicly-traded companies could seek to expand the Supreme Court’s decision.

Updated COBRA Notices Provide Information About Obamacare Options

[June 9, 2014]  On May 2, 2014, the Department of Labor (“DOL”) released proposed regulations containing new model notices pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”).  The new notices inform workers that they may purchase coverage through the health insurance exchanges established pursuant to the Affordable Care Act (“ACA”) and that such coverage may be less expensive than COBRA continuation coverage.

In general, administrators for group health plans must issue two types of notices pursuant to COBRA:  1) a “general” notice when a participant initially becomes covered under the plan; and 2) an “election” notice when a participant experiences a COBRA qualifying event.  The new regulations revise both the model general notice and the model election notice by including information about the ACA.

The model general notice instructs employees that health coverage may be more affordable when purchased through an ACA exchange, and it directs them to the ACA health exchange website.  The model election notice contains detailed information, through a question and answer format, about the ACA, including where and when to enroll in coverage, whether an employee can switch between COBRA and ACA coverage, and factors to consider when choosing coverage, including severance provisions, access to current providers, and prescription coverage.

Even though the open enrollment period for ACA coverage has closed, people with COBRA insurance have a special enrollment period to obtain coverage through the federal ACA exchange:  they may enroll by July 1, 2014.  The Department of Health and Human Services established the special enrollment period because the former model COBRA notices did not sufficiently address ACA options.

Although plan administrators are not required to use the model notices, such use is considered good faith compliance with the notice requirements of COBRA.  Thus, we advise using the updated models immediately.

NLRB Is Emphatic: Employers Can’t Ban Negativity!

[April 14, 2014] Employers often think, quite reasonably, that they may lawfully require employees to be positive at work.  Indeed, why shouldn’t employees be required to be positive with colleagues and represent the company in a professional manner?  Unfortunately, the National Labor Relations Board (“NLRB”) disagrees.  Repeatedly, the NLRB has concluded that such “no negativity” policies violate workers’ rights, whether union or non-union.

For example, on April 1, 2014, the NLRB held that a Michigan hospital’s work rules banning negativity and gossip violated the National Labor Relations Act (“NLRA”).  (This was not an April fool’s joke.)  The work rules contained in the hospital’s Values and Standards of Behavior Policy required employees to:

  • avoid “negative comments about … fellow team members,” including managers;
  • “represent [the hospital] in the community in a positive and professional manner in every opportunity”; and
  • “not engage in or listen to negativity or gossip.”

The NLRB concluded that the rules were too broad and could be interpreted by employees as prohibiting activity protected by Section 7 of the NLRA, which gives employees the right to engage in concerted activity.  The NLRB also rejected the hospital’s argument that the rules were lawful because employees participated in drafting them.  As a remedy, the NLRB ordered the hospital to immediately cease and desist from maintaining the challenged rules, give all current employees policy inserts reflecting the revisions, and post and distribute a notice to all employees about the ruling.

The next day, on April 2, 2014, the NLRB struck down similar rules in the employee handbook of a nationwide transportation management company.  That company’s rules prohibited employees from:

  • “discourteous or inappropriate attitudes or behaviors to passengers, other employees, or members of the public;”
  • participating in “outside activities that are detrimental to the Company’s image or reputation”; and
  • “conducting oneself during nonworking hours in such a manner that the conduct would be detrimental to the interest or reputation of the Company.”

The NLRB explained that employees could reasonably construe the rules as limiting their communications concerning employment, despite the presence of another provision in the handbook that notified employees of their union rights.  Unfortunately, the NLRB noted that the “savings” clause was not sufficiently “prominent” in the employee handbook or located in close proximity to the challenged rules.  As with the hospital case above, the NLRB ordered the employer to rescind the policies, provide handbook inserts to current employees to replace the policies, and distribute a notice about the ruling to all employees.

Many employers maintain social media and other policies similar to the policies at issue in these cases.  In light of the NLRB’s continuing focus on such policies, employers (whether unionized or not) should consult with experienced counsel to review their policies and consider whether any changes may be appropriate.

EEOC Continues Assault On Severance Agreements

[March 28, 2014] Continuing its crusade against common provisions in severance agreements, the Equal Employment Opportunity Commission (“EEOC”) filed a suit in February against CVS Pharmacy, Inc. (“CVS”) in an Illinois federal district court.  The EEOC claims that a severance agreement used by CVS violates Title VII because it is “overly broad, misleading and unenforceable.”

Specifically, the EEOC claims that CVS’s severance agreement interferes with employees’ rights to file charges with the EEOC and other agencies or to cooperate with an investigation.  The EEOC seeks, among other relief, reformation of the agreement and additional time for employees who signed the agreement to file administrative charges.

The challenged provisions of CVS’s agreement include:  a notification clause (requiring the employee to notify CVS of any investigation by a state or federal agency); a non-disparagement clause (prohibiting the employee from disparaging CVS); a covenant not to sue clause (prohibiting the employee from filing any charge); and a confidentiality clause (prohibiting the employee from disclosing confidential information without CVS’s consent).

The EEOC is challenging the agreement despite language in the covenant not to sue paragraph stating that nothing in the provision shall interfere with an employee’s right to participate in a proceeding with any agency or to cooperate in any investigation.   Noting that the agreement is five pages long and that the reservation of employee rights is only one sentence, the EEOC contends that this language is not sufficient.

This action follows the EEOC’s filing of a lawsuit in May 2013 challenging severance agreements obtained by Baker & Taylor, Inc.  That suit was resolved by a consent decree in which the company agreed to specify, in future release agreements, that the release did not limit the employee’s right to file a charge with the EEOC or state agency, to participate in any such action, or notably, to recover any appropriate relief.  While the consent decree is not binding on other parties, it reveals the broad language the EEOC favors.

In light of the EEOC’s recent litigation activity, we recommend that employers review their severance agreements and consider whether to strengthen language concerning the employee’s right to file administrative charges and participate in agency investigations.  For example, employers may wish to clearly state, in a separate provision of the agreement, perhaps highlighted in bold, that nothing in the agreement interferes with the employee’s right to participate in or cooperate with any proceeding or investigation.

Emergency Medical Response: What’s Your Plan?

[March 18, 2014] Envision this scary scenario: the school community is gathered around the field for the season-ending lacrosse game between rivals, when an 11th grader collapses on the field, in need of emergency treatment.  If there is no medical professional on-site, are members of the faculty or administration prepared to rush in and respond appropriately? Should they?

Many states have so-called “good Samaritan” laws on their books which exempt lay people from liability for good faith attempts at cardiopulmonary resuscitation (CPR) and other methods (defibrillation) to save a person’s life.  Nonetheless, independent schools will want to ensure that their own policies around the rendering of emergency medical care—for example, in student, employee, and athletic handbooks—reflect applicable state law and best practices.  For example, at the end of February, the Massachusetts legislature amended the Commonwealth’s good Samaritan law to broaden its applicability, so that anyone other than paid medical or emergency responders, may avoid liability for their acts and omissions (absent gross negligence or willful misconduct) when attempting to save a life.

Specifically, Massachusetts S. Bill 1993, which will take effect May 21, 2014, extends liability protection in civil suit for damages to any person, who in good faith and not for a fee, attempts to render medical care. The law had previously excluded protection for persons “whose usual and regular duties” included the provision of emergency medical care—meaning physicians, off-duty firefighters and police officers, and other persons trained in CPR, automatic external defibrillators (AEDs), or basic cardiac life support. Now, however, in Massachusetts, anyone may make a good faith response to an individual in need of medical attention without fear of liability.

Massachusetts follows other states, such as New Jersey and North Carolina, that had already passed similar “good Samaritan” laws granting immunity from civil liability for the use of AEDs in good faith during an emergency.  In fact, New Jersey not only provides immunity to the individuals rendering emergency care by use of AEDs, but also extends this protection to the person or entity providing or maintaining the equipment, the person or entity who provided training in CPR and use of the defibrillator, and the prescribing licensed physician.

Recognizing the importance of early medical response and appreciating the additional protection this amendment affords, independent schools may want to develop or update existing policies for emergency medical responses during school events. These policies may include establishing a response team, installing AEDs on campus with maps illustrating their locations, or implementing AED, CPR, and first aid training for employees and coaching staff.

Please do not hesitate to contact us if you have any questions about this information or need our assistance regarding emergency response protocols or other school crisis readiness policies and practices.

Obamacare Delayed Again: Medium-Sized Employers Not Required To Provide Health Coverage Until 2016

[February 14, 2014]  Employers with 50 to 99 full-time workers now have an additional year to “play or pay” under the Patient Protection and Affordable Care Act (“ACA”), i.e., to offer health insurance to full-time workers or pay a fee.  Newly issued final rules require these mid-size employers to offer coverage by 2016, instead of 2015.  To be eligible, an employer must certify to the U.S. Treasury Department that it has not laid off employees in order to fall below the 100-employee threshold.  Although not required to provide coverage in 2015, mid-sized employers must still comply with reporting requirements in 2015.

Employers with 100 or more full-time equivalent employees are still required to provide coverage no later than January 1, 2015, or the start of their plan year in 2015 (for non-calendar year plans).  However, to avoid paying a penalty, such larger employers must offer coverage only to 70% of their full-time workers in 2015.  Beginning in 2016, employers must offer coverage to at least 95% of full-time workers.

In order to prepare for 2015, larger employers may use a look-back period during 2014 to determine whether an employee is a full-time employee under the ACA, i.e., works 30 hours or more per week.  (While there are bills pending in Congress that would change the ACA’s definition of full-time employee from the current 30-hour per week rule to a 40-hour rule, the bills have little Democratic support.)  Although it may be tempting to wait and see what further delays or changes may come, larger employers should begin now to prepare for 2015.

E-Cigarettes Reignite Questions About “Smoking” At Work

[January 30, 2014] In light of the increasing popularity of electronic cigarettes (“e-cigarettes”), employers must consider whether to allow employees to use e-cigarettes at work.

E-cigarettes contain liquid nicotine and are battery-powered.  When a user inhales on an e-cigarette, the nicotine is converted into a vapor that the user then breathes out, i.e., “vapes.”  While e-cigarettes are marketed as a healthier tobacco alternative, the potential harms are still unknown.  The Food and Drug Administration (FDA) has not yet regulated e-cigarettes, but is expected to issue rules on marketing, online sales, and minimum age for use soon.

Most states and cities have not addressed the use of e-cigarettes.  Only three states – New Jersey, Utah, and North Dakota – have banned the use of e-cigarettes in the workplace.  More than 100 cities, including New York City and Chicago, have banned the use of e-cigarettes indoors.  Massachusetts has a pending House bill, which has been referred to committee, that would classify e-cigarettes as nicotine products and ban their use in the workplace.

In the absence of statutory and other legal requirements, employers are free to decide whether to allow employees to use e-cigarettes at work.  Employers who permit use point to the positive effect on productivity (because employees can “vape” without taking breaks), the fact that using e-cigarettes may help employees quit smoking traditional cigarettes, and the absence of definitive research showing negative health effects of secondhand exposure to vapor.

On the other hand, some employers are prohibiting vaping at work, likely because some public health officials and health advocacy groups contend that secondhand vapor can cause negative health effects.  In this regard, the FDA’s much anticipated rules may provide important information about whether e-cigarettes are considered to be harmful or not.

While keeping an eye out for new laws regulating e-cigarette use at work, employers should determine whether to prohibit e-cigarettes in their workplace and revise existing smoking policies appropriately. Whether or not an employer decides to ban e-cigarettes from the workplace, any applicable policy should be clear, consistently applied, and communicated effectively to employees.

Senator Warren Introduces Bill Banning Credit Checks Of Job Applicants

[January 8, 2014]  At this time of year when visions of credit card bills dance in our heads, Senator Elizabeth Warren (D-Mass.) has introduced a bill that would ban employers from checking the credit of applicants during the hiring process.  The Equal Employment for All Act would prohibit employers from using credit reports for employment purposes, unless for a national security position or otherwise required by law.

In her floor speech supporting the bill, Senator Warren explained that a bad credit rating is often the result of a personal crisis, and she pointed to research demonstrating that a person’s credit rating has little to no correlation to his or her ability to succeed at work or likelihood to commit fraud.  Other supporters of the bill have argued that credit checks are discriminatory, pointing out that African Americans and Hispanics have considerably lower credit scores than non-Hispanic Whites.

Is this a solution without a problem?  A 2012 survey by the Society for Human Resource Management found that less than half of employers (47 %) conduct employment credit checks.  Only 13% of employers conduct credit checks on all job candidates.  The remaining 34% of employers conduct credit checks only on those candidates applying for sensitive positions, including positions with financial responsibilities, senior executive positions, and positions with access to highly confidential employee information.  For employers who conduct credit checks, most do so only after making a contingent job offer.

If you are in the minority of employers conducting credit checks, we recommend that you stay tuned to this bill, which appears to coincide with the Obama Administration’s renewed focus on income inequality.  We also recommend that you take this opportunity to review your credit-check policy and other background-check practices.

Massachusetts Employers Not Required To Offer Section 125 Plans

[November 25, 2013]  The Massachusetts Health Connector has announced that it will no longer enforce several of Massachusetts’ health reform requirements, including the law requiring employers to provide a Section 125 Cafeteria Plan or pay a surcharge.

According to the Connector, the Section 125 requirement is incompatible with recent guidance from the Department of Labor (“DOL”) about the Affordable Care Act.  Governor Deval Patrick will pursue legislation to repeal the state’s Section 125 requirement, the Employer Health Insurance Responsibility Disclosure (Employer HIRD) form, the Free Rider Surcharge, and the recently created Section 125 Notification Requirement.  In the interim, the Connector will not enforce these requirements.

Pursuant to the DOL’s guidance, Massachusetts employers may no longer offer Section 125 plans that allow non-benefits eligible employees to purchase their own non-group health insurance using pre-tax income.  Employers may, however, leave such plans in place until the expiration of the employees’ health plans in 2014.  Employers should discuss with benefits counsel any necessary amendments to their Section 125 plan documents.

This change does not affect Section 125 plans for benefits-eligible employees:  employers may continue to offer such plans and may continue to allow employees to pay their group health insurance premiums on a pre-tax basis.

Reminder: Obamacare Exchange Notices Due To Employees October 1

[September 16, 2013]  Employers must provide Obamacare “exchange notices” to current employees by October 1, 2013, and to new employees at the time of hire.  (For 2014, this means within 14 days of the start date.)  The DOL has made available on its website two versions of model notices:  one for employers who offer health coverage and one for employers who do not.

Although the employer mandate of the Affordable Care Act (“ACA”) has been postponed until 2015, the requirement to notify employees of health care coverage available on insurance exchanges by October 1, 2013, remains in effect.  The requirement applies to all employers who are covered by the Fair Labor Standards Act.

The exchanges are scheduled to begin accepting applications on October 1, 2013, for coverage that will begin on January 1, 2014.  However, recent polls have found that many Americans, including those who are currently uninsured and, thus, will face a penalty under the ACA as of January 1, 2014, do not understand the law’s requirements.

Thus, the Obama Administration has increased its efforts to promote the law, including enlisting former President Bill Clinton for a recent speech detailing the intricacies of the ACA.  The White House has also recruited athletes and entertainers to help spread the word about the upcoming enrollment period.

The required notice to employees must be provided in writing and in a manner calculated to be understood by the average employee.  It may be provided electronically if the DOL’s electronic disclosure safe harbor requirements are met.

Employers must provide a notice to every employee regardless of plan enrollment status or part-time or full-time status.  Employers need not provide a separate notice to the employees’ dependents.

Are Employers Penalizing Employees For Using Workplace Flexibility Policies?

[June 20, 2013]  A recent New York Times article provides some food for thought concerning whether workplace flexibility policies actually hurt employees instead of helping them.  The article reviews recent research studies examining negative effects on employees’ careers after they take parental leave, work reduced hours, or participate in other programs aimed at providing flexibility.

Is this happening in your workplace?  If so, how should your company handle this phenomenon?  Change the policy?  Change the culture?  Training?  … Or do nothing?

Of course, treating male employees differently as a result of their participation in such flex schedule programs, could result in a whole host of legal claims and employee relation problems, too.

If the attached article gets you thinking about your leave policies, please feel free to call us to discuss.

Obamacare Exchange Notices Due October 1 Per IRS Guidance

[May 22, 2013]  Employers must provide Obamacare “exchange notices” to current employees by October 1, 2013, and to new employees “at the time of hiring.”  (For 2014, this means within 14 days of the start date.)

Specifically, the IRS has finally provided temporary guidance to employers about their obligation, pursuant to the Affordable Care Act (“ACA”), to notify employees of health care coverage available on insurance exchanges.  The requirement applies to all employers who are covered by the Fair Labor Standards Act.

The DOL has made available two versions of model notices: one for employers who offer health coverage, and one for employers who do not.

The notice must be provided in writing and in a manner calculated to be understood by the average employee.  It may be provided electronically if the DOL’s electronic disclosure safe harbor requirements are met.
Employers must provide a notice to every employee regardless of plan enrollment status or part-time or full-time status.

Employers need not provide a separate notice to the employees’ dependents.

Facebook Evidence May Be Discoverable: Ask For It! (Preserve It!)

[May 13, 2013]  A federal judge in New Jersey recently sanctioned a plaintiff for deleting his Facebook account, which purportedly contained photographs and other information that contradicted his personal injury claims against the defendants.

The plaintiff had agreed, as part of discovery, to provide the contents of his Facebook account.  Instead, he deleted it.

As a sanction, the court agreed to provide a spoliation instruction at the trial, instructing the jury that it may draw an adverse inference from the plaintiff’s destruction of the evidence.

The decision serves as a reminder that employers should seek discovery of from the Facebook and other social media accounts of plaintiffs in employment litigation.  (Ask for it!)

It is also a reminder to businesses that they must ensure that their managers and other decision-makers do not destroy such evidence, if it exists.  (Preserve it!)

Effective Harassment Policies And Practices Can Be An Employer’s Best Defense

With all of the cautionary tales about what can happen when employers don’t comply with employment laws, it is nice to hear about an employer whose compliance was rewarded. In Wilson v. Moulison North Corp., a recent opinion by the United States Court of Appeals for the First Circuit, the Court affirmed summary judgment for an employer that took appropriate precautions to prevent harassment in the workplace. In Wilson, the Court found that the employer had an appropriate policy against harassment, followed its policy, and as such, could not be found liable for the harassment of an employee.  Read more.