What would your company (or you) do if an employee reports or alleges harassment or other similarly inappropriate behavior at a holiday party? What if that employee then tells you s/he’s been subjected to retaliatory behavior after complaining?
Would you tell the employee to transfer to another location? I hope not. Would you do nothing? Again, I hope not.
The right answer of course, should be, at a minimum, “Investigate and take prompt appropriate action”. All too often unfortunately, that does not happen – and the results, while avoidable, can be disastrous. Read on…
A former Taco Bell worker, who reported misconduct at a holiday party in her lawsuit alleges that and more. The case is Bechiom v Taco Bell Corp, filed in the Superior Court of California, Los Angeles County. Here, in a nutshell, is what went down:
At a holiday party the plaintiff allegedly witnessed co-workers getting drunk, vomiting and openly having sex. She reported what she saw to Human Resources and to the franchisee/owner that she understood to have co-employed her. (More on this point in a bit.)
To Taco Bell’s credit it fired the co-workers that were “misbehaving” at the party. Unfortunately, that wasn’t the end, though.
The employee alleges that following the complaint and the misbehaving co-workers’ terminations, her car window was broken at her home in the middle of the night and that she received violent, threatening text messages from other co-workers. One of them said “baby girl, I wanna break your face [I don’t give a f*** about your car”. Another said “…imma hurt you n***as cuz u hurt my pockets” (apparently referring to her and her boyfriend). These are just 2 of many such texts.
The employee reported these threats to HR, and the franchisee, and they allegedly did nothing in response other than to tell her to change locations. Hence the lawsuit in CA Superior Court alleging discrimination, harassment, hostile work environment, retaliation, constructive discharge and failure to investigate among other state claims.
I doubt you need me to remind you that you need to take all allegations of harassment/discrimination seriously, to promptly investigate and take appropriate action. There’s actually another aspect on which I want to focus, and that’s a statement made by the franchisor. Here it is:
“While we don’t own or manage this location, the franchisee who owns and operates this restaurant has shared that they take these claims very seriously.”
I am not sure if this statement would help Taco Bell in the lawsuit. As of now, however, this same statement by a similarly-situated franchisor in response to an unfair labor practice charge before the NLRB is unlikely to help. That’s because the NLRB in late October revived an Obama-era rule that makes a franchisor jointly liable with the franchisee and/or the specific store for labor practices by the specific location. That means that going forward, franchisors have to be more vigilant in ensuring that franchisees take appropriate steps to prevent this type of conduct at its franchisees’ locations.
Additionally, some courts are inclined to find joint control by a franchisor over a franchisee’s day-to-day-operations. When that happens, the franchisor is at least potentially on the hook for its franchisee’s practices, actions and omissions. In other words, a franchisor can be found liable if the franchisee is found to have responded inadequately toward complaints of discrimination, retaliation, harassment or hostile work environment complaints — at least under the right set of facts.
Either way, if your company is a franchisor — or otherwise found to be a joint employer or any kind of employer– it’s not enough to say you “take these claims seriously” or that you “don’t tolerate discrimination of any kind”. If you fail to respond and offer only excuses later, you are in fact tolerating discrimination — and risking lawsuits, high turnover and damage to your brand, regardless of your vehement statements to the contrary.
Taco Bell’s attempt to hide behind its status as franchisor may not save it from liability here. If you and/or your company are similarly situated, don’t make that same mistake. Instead of waiting to be sued to call employment counsel, call before there’s a lawsuit to determine how you can proactively protect yourself from liability, turnover and brand damage. The same of course applies to any employer — unless you’d rather roll the dice and not be bothered now.
Your choice.
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation.
Watch my television interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.
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