The Weinstein case impacts companies: remedies

16 February 2018

T&P Magazine EN

The Weinstein case impacts companies: remedies

Edited by Salvatore Trifirò and Paolo Zucchinali

Media have extensively reported the Weinstein case and have triggered debates over the propriety and toleration of certain conducts in show business and at the workplace in general.

The question raised, however, is the following: what is to change at the workplace? Are looks to be banned, alongside flirtation? And how does that fit in with gender equality?

In America, companies are scrambling to draw up new rules of conduct at the workplace. The concern of companies is also that where the offence is subject to the statute of limitation, it is still actionable under civil law.

The prosecution of the State of New York indicted Harvey Weinstein (the brother) and his company “for not having protected the employees from the sexual conduct” of the heads of the company “in spite of the numerous claims addressed to the human resources department.”

The contractual clauses of confidentiality that prevent workers who leave the company to report on sexual misconduct are also at issue.

Some have suggested the creation of a toll free number to report sexual harassment. Others suggest to inform the public of the cases. Some Italian companies have introduced a “confidential advisor” for workers who want to report cases of sexual harassment.

In Italy, the recent publication of new protection for whistleblowers would also go to some length towards improving safety of conduct at the workplace.

Lastly, and beyond the fancy talks, the legal system must call on the most experienced judicial competence to help companies draw up new rules, based on case law on the issue at hand.

Only clear rules of conduct, shared by all, and designed to protect the working community (employers, female and male workers alike) may prevent conflicts, introduce a new culture, and improve performance and work quality.

Salvatore Trifiro

My professional history begins in 1955 joining the Firm of Prof. Cesare Grassetti, one of the biggest if not the greatest civil Attorney of the '900, Professor at the Civil Law Faculty at the University “Statale” of Milan, later Director of the same Faculty, and then also Professor of Employment Law at the Universities of Cagliari and Catania. I was admitted to his Firm after passing the Milan Public Prosecutor’s exams, being the first among the 3.000 participants and having passed the test proposed with the drafting of a respondent’s brief in appeal on unfair competition. Prof. Grassetti asked me if I wanted to follow him in the academic career or in the legal profession. At the time I chose to continue as an Attorney. So, I began to deal, first under his guidance and then more and more independently, with all the most important disputes that were being debated in Italy between major national and foreign companies and the famous families of the time: from civil law to inheritance and family law, from corporate law to commercial law, patent law and employment law. In 1973 came into force the Reform on the employment proceedings that imposed, with specific reference to the employment cases, the orality of the trial and so the constant presence at the hearing became challenging even for the “fiery” climate of those years. Against Prof. Grassetti's advice, according to which it would have been more productive for my professional future if I had overlooked employment law and continued to deal with civil law matters latu sensu (patents, unfair competition, appeals against shareholders' meeting resolutions of listed companies, etc.), since none of the attorneys in the Firm came forward to deal with employment litigations in those 'Years of Lead', I began to deal with them personally, attending court every day and obtaining victories, which were reported by the press and the media of the time. In Milan, I was the only attorney to assist companies and I had miraculously escaped two bombings of the “Red Brigades”. Although I mainly dealt with employment law issues, I continued to be interested in important civil law matters to which I added arbitration both as Attorney and as President. In 1986 I built the Trifirò & Partners Firm with my brave collaborators of that time - still Partners of the Firm - whose have continued the work I had undertaken in the past years, giving - by handling tens and tens of thousands of cases and always aiming at the settlement of disputes before reaching litigation - a crucial contribution to the creation of “living” employment law: affirming important principles of law on legitimate trade union agitation, right to strike, individual and collective dismissals, redundancy, mobbing, employment and non-subordinate relationship, conciliation procedures and trade union law. The Firm - in which I still practice - assists the most important national and foreign companies, their Managing Directors, General Managers and Employees to achieve their goals.

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