In the latest Weekly Wright Report:
- An Important Lesson from Les Moonves and the #MeToo Movement – read now
- Failure to File a Claim Bars Defense – read now
Reserve your spot for part 2 of Advanced Concepts in Sexual Harassment to be held on Sept. 5th. Employment Attorneys, Laura Rubenstein and Greg Currey, will take a deeper dive into recent developments and the changing landscape of sexual harassment in the workplace. Register here.
By Greg Currey
Les Moonves, the CEO of CBS Corporation, has been a high-ranking executive at CBS since the mid-1990s and is one of the most powerful men in television. Mr. Moonves has also been a prominent voice supporting victims of the #MeToo movement and participated in the founding of the Commission on Eliminating Sexual Harassment and Advancing Equality in the Workplace.
Despite these outward appearances, the most recent issue of The New Yorker contains an expose detailing six women’s accusations of sexual harassment against Mr. Moonves. The allegations against Mr. Moonves describe forcible sexual advances during business meetings, physical intimidation and threats against women’s careers when they refused his advances. In addition, the article contains reports from dozens of other women complaining of abuse by others at CBS. As the article explains, despite the lip service paid to a culture of respect and opportunity, men who sexually harassed women were shielded from the consequences of their own behavior and, in many cases, were promoted in spite of allegations against them. This report reinforces a key lesson from the #MeToo movement that employers should study closely: talk is cheap. Studies have shown that the greatest predictor of harassment in the workforce is a toxic culture, particularly cultures where harassers’ misconduct is not adequately punished. Your human resources department can draft the most eloquently-worded sexual harassment policy and management can extol the virtues of inclusion and respect, but if these principles are not actually reflected in management’s conduct, the words are useless.
In the Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workforce, the EEOC identified leadership as the main determinant in whether harassment would be effectively prevented. Harassment is far more widespread in workplaces where leaders engage in harassment, tolerate harassment, or fail to adequately support anti-harassment measures. Conversely, leaders who ensure that workplace policies prohibiting harassment are effectively enforced have far fewer complaints of harassment. Given the costs created by charges of discrimination, lawsuits, employee turnover and poor morale, all employers should take a close look at whether management is abiding by and enforcing the company’s sexual harassment policies.
They say that “time is money.” But, if you fail to follow the claim rules on federal projects, such failure can cost you money, so is “failure to follow the rules also money”? If you have a federal project and you have been delayed, but the government is also assessing liquidated damages, you must be careful to protect your delay claim as a set off to the liquidated damages. In a recent case before the Armed Services Board of Contract Appeals (“ASBCA”), Appeal of — OCCI, Inc., 2018 WL 2986563 (May 29, 2018) the contractor contended that it was delayed on two separate aspects of the project and it submitted requests for equitable adjustment (“REA”). Both REA’s were rejected by the contracting officer, but the contractor did not file certified claims under the Contract Disputes Act (“CDA”). The government ultimately assessed liquidated damages against the contractor and the contractor contested that assessment in a claim and appealed the contracting officer’s final decision to the ASBCA.
At the ASBCA, the contractor attempted to argue that the government was not entitled to assess liquidated damages because the delays on the project were excusable. The contractor argued that the government was responsible for the delay. The ASBCA refused to consider the excusable delay arguments. The Board held that the contractor was precluded from raising these issues as defenses against the government’s liquidated damages claim because the contractor had not filed proper CDA claims asserting entitlement to time extensions. The ASBCA relied on the Federal Circuit’s decision in M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010) in reaching its decision. In Maropakis, the contractor argued that the CDA requirements did not apply because it was asserting the “defense” of excusable delay to the government’s claim for liquidated damages as opposed to an affirmative claim for recovery or time extensions. The Federal Circuit rejected that argument and concluded that even when used as a defense to a government claim, a contractor’s claim for contract modification (i.e.: time extension in this case) must adhere to the jurisdictional requirements of the CDA and file a formal claim.
Following the CDA claim rules is critical for defenses as well as affirmative claims.
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