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Dnt Txt N Drv

17 May

While many states, including Pennsylvania, have implemented laws the ban texting while driving, the federal government has also thrown its hat into the ring. The Occupational Safety & Health Administration (OSHA) has implemented a Distracted Driving Initiative, which will focus on texting while driving.

OSHA calls upon all employers to ban texting while driving and remove any practice or policy that requires or encourages workers to text while driving. The first part of OSHA’s call to action is certainly easy to implement. Simply add a section in your employee handbook prohibiting texting while driving (and maybe take it a step further by prohibiting cell phone use in general while driving) and ensure that all of your employees are aware of the policy.

The second part, removing practices or policies that require or encourage texting while driving, is a little more confusing and, possibly, more difficult to implement. If your policies and practices require texting while driving, create incentives that encourage it or if work is structured so that texting is a practical necessity for workers to carry out their job, you may be subject to an OSHA fine.

For example, if your employee is required to make a certain number of deliveries each day and must stay in contact with other employees or customers via text message or email, you could be fined by OSHA And in this case, the employee would not even need to have an accident for you to be fined, OSHA could find the violation due to an employee complaint or an inspection.

If OSHA does find a violation, it will issue a General Duty Claus citation, which carries a maximum penalty of $70,000 per Willful or Repeat violation or $7,000 per Serious Violation. Given the announcement of this Initiative, expect OSHA to respond aggressively to any accident where distracted driving may have been a factor or if an employee complaint is lodged.

Employers should implement policies that clearly prohibit texting or emailing while driving any company vehicle or while driving on the job. The policies must be communicated to all employees. Any practice that requires or encourages employees to text or email while driving, even if the encouragement is indirect, should be removed or rewritten so that it clearly forbids texting while driving. Erring on the side of caution now may save you thousands of dollars, and potentially employee lives, in the future.

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Posted in Department of Labor, Employee Handbook, Employer Policies, OSHA, Technology

 

What Can They Say?

10 May

I think one area of law that is particularly confusing to employers and employees alike is that of free speech in the workplace. Almost everyone is aware that the First Amendment provides certain protections for speech. For the record, the First Amendment prohibits the government from abridging the freedom of speech. Therefore, the First Amendment does not apply to speech in a private-sector workplace. Of course, that does not mean that certain speech in the private-sector workplace is not protected, nor does it mean that a private-sector employee can anything they would like without consequence. The answer lies somewhere in between.

The National Labor Relations Act has long provided protection to employees to discuss wages, hours and working conditions. Recently the NLRB has extended that protection to discussions on social media sites like Facebook or Twitter. For example, the NLRB has found violations of the NLRA where an employee was fired for criticizing his or her boss on Facebook.

However, the NLRB’s protection does not necessarily extend to an employee posting a rant on his or her social media page, or making derogatory comments about customers on their own. The NLRB, so far, has only protected activity where two or more employees were discussing the workplace. Employee comments on social media that are mere complaints about or general dissatisfaction with the job would not be protected.

Another example of unprotected speech occurred when an employee listed his occupation on LinkedIn as “f*cktard.” Clearly, the employee was not engaging in any discussion of workplace, so he was not under the NLRA’s protection. The NLRA will also not protect patently untrue, egregiously disloyal, threatening or harassing speech.

The NLRB has also made it clear that it will be closely reviewing social media policies for violations of the NLRA. The NLRB indicated that employers should not draft broad social media policies that could prohibit, discourage or chill discussions about wages, hours or working conditions. An appropriate social media policy will specifically discuss the conduct prohibited (e.g. do not discuss trade secrets), specifically inform the employees that they retain their rights under the NLRA and should not use vague terms like “appropriate” or “professional” without providing clear definitions.

The NLRB has a great deal to say about employee conduct and social media policies (which I plant to discuss in a future post), and any social media policy should be discussed with legal counsel before implementation.

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Posted in Employee Handbook, Employer-employee relations, NLRB, Social Media

 

Asking for Trouble

30 Apr

Hiring a new employee is full of decisions with legal significance, like whether or not to conduct a background check or whether to review the applicant’s social media pages. While these are certainly important issues, it is also important to consider the questions you may or may not ask during the interview process.

It is fairly obvious that you should not ask an applicant what religion they practice, their nationality or age. After all, Title VII includes religion and national origin as a protected classes, and the ADEA forbids discrimination against workers older than 40. However, you may ask an applicant if there are any days, weeks or time period when he or she cannot work, to determine their availability, or you can ask an applicant if he or she speaks any other languages, if it is relevant to the job, if you’re concerned about English fluency. Age questions, on the other hand, are generally only allowed to determine if an applicant is legally old enough to work for your business. However, other areas become more complicated

You may not ask a candidate if she is pregnant, if she intends to become pregnant or if she would return to work after maternity leave. However, if you are concerned about this particular area, there are questions you may ask. Inquiring into the candidate’s ability to work overtime and travel (if relevant to the job) should alleviate any concerns about whether family obligations will cause a problem. Similarly, asking the candidate about long-term career goals is proper and will allow you to gauge her commitment level.

The hiring of smokers and obese workers has become something of a hot-button issue lately, but asking if a candidate smokes is not advisable. While it is likely a poor choice to deny employment based solely on smoking, you could ask if he or she was previously disciplined for violating company policies regarding the use of tobacco products. Similarly, while you should not ask a candidate’s weight or body-mass index, you may inquire about the candidate’s ability to perform the necessary job functions, like standing for certain periods or frequent bending and lifting.

Finally, and often most confusing for employers, you cannot ask a candidate about disabilities. However, you may ask the applicant whether or not they are able to carry out the necessary job functions and perform them in a safe manner. You should not ask the applicant about any accommodations he or she may need until you have determined that the candidate is qualified for the job and you are considering them for employment. At that point, you will have to determine whether you can make reasonable accommodations for the applicant’s limitations, preferably with the assistance of legal counsel.

Prior to interviewing, you should prepare a list of questions with your legal counsel. A prepared list of questions will help you avoid asking any illegal or inappropriate questions, and also ensure that none of the candidates receive treatment that could be deemed favorable.

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Posted in Employer Policies, Hiring and Recruitment

 

EEOC Offers Guidance on Using Arrests and Convictions in the Hiring Process

25 Apr

The EEOC voted 4-1 to release enforcement guidance regarding the use of arrest and conviction records in the hiring process. With the easy availability of criminal records today, and a population who is increasingly coming into contact with the criminal justice system, particularly African-American and Hispanic men, the EEOC determined that updated guidance was needed. While acknowledging that having a criminal history is not a protected class under Title VII, liability may lie where an employer’s reliance on a criminal record to deny employment treats an employee differently due to his or her protected status or disproportionately screens out a protected group without relation to the position and business necessity.

The issue of whether an employer’s policy disparately treats a protected group is usually much easier to determine. Essentially, if an employer’s background check process treats an applicant from a protected group differently than an applicant outside that group (regardless of whether the other applicant is also in a protected group), then a finding of disparate treatment is likely.

However, determining whether a facially neutral criminal background check policy disparately impacts applicants in a protected group requires significantly more analysis. If an applicant can show that the employer’s policy eliminates members of a protected group more than applicants that are not part of the protected group, which may be as simple as showing that members of the protected group are arrested and convicted at a higher rate, the policy likely has a disparate impact. The employer must then show that the policy is justified in light of the job requirements and the necessities of the business.

In determining whether the policy is job related and consistent with business necessity, the EEOC emphasizes that arrests and convictions must be treated differently. An arrest is not sufficient to deny employment, but an employer may make the employment decision based upon the conduct underlying the arrest, if the conduct makes the applicant unfit for the job. The important distinction is the focus on the conduct, not the arrest. In short, the conduct may be considered if it would be sufficient to deny employment if the applicant had not been arrested.

Conviction records tend to be more reliable, and therefore, may be acceptable grounds for denying employment. However, the Commission does recommend that employers refrain for asking about convictions on job applications and limit any inquiries to those related to the position. To show that the policy operates to deny employment only to those applicants whose criminal conduct, and the dangers it indicates, are linked to the risks of the position, employers should either:

  • create a screening process that is narrowly tailored, with the process validated per the Uniform Guidelines on Employment Selection Procedures or
  • develop a screening process where, upon screening out an applicant, an individualized assessment is conducted

The individualize assessment requires notifying the applicant and allowing him or her to demonstrate that they should not be excluded. The employer should consider a number of factors during the assessment, including: the circumstances of the conduct, the number of convictions, whether the same time of work was performed post-conviction, the employment history before and after the conviction, rehabilitation efforts and character references. While quite onerous, if the applicant does not cooperate with the employer’s efforts to gather information, a decision may be rendered with the information the employer was able to gather. While not mandatory, the Commission does note that a screening process with an individual review will be less likely to violate Title VII.

Where federal laws and regulations disqualify convicted applicants from certain occupations, the employer is entitled to deny employment based on applicable convictions. However, state and local laws that limit or prohibit the employment of applicants with certain criminal convictions are preempted by Title VII and are not a viable defense.

In light of this new guidance, employers would be wise to eliminate policies where applicants are excluded for any negative criminal history, in favor of a policy that is narrowly and specifically tailored to the open position, with an individual review process. In order to narrowly and specifically tailor the policy, the employer should consider the requirements of the job and the liability risks that the job entails, and then determine the specific offenses that indicate unfitness for performing job. Consideration must also be given to the duration of the exclusion based on the available evidence. Finally, and of great importance, managers and other hiring decision-makers must receive training regarding the new hiring procedure in order to ensure that the criminal background check policy is implemented as intended and in compliance with Title VII.

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Posted in Employer Policies, Hiring and Recruitment

 

Termination Time

23 Apr

No matter what, the time will come where you need to terminate an employee. The reason is generally immaterial, unless it is illegal or discriminatory, whether it is performance-related or simply a bad cultural fit, not every employee you hire will work out. The most important, and most often asked, question is: what do I need to do to fire this person?

Documentation is very important, and should begin when an employee is hired. Every employee should have a personnel file, and in that file you should document any warnings, discipline or efforts to improve employee performance. While many states have at will employment, it is still beneficial to have documentation of the reasons for the termination, preferably in advance. However, if your recordkeeping is lax, you should create a document outlining all of the incidents, problems and issues with the employee in as much detail as you can recall prior to termination.

Reviewing the employee’s personnel file prior to termination can also reveal some important details. For example, if the employee has filed sexual harassment complaints, filed a claim with OSHA or informed you of impending FMLA leave, you could face a claim for retaliation. Without a clear history of misconduct, your chances of prevailing in a retaliation lawsuit are much less likely.

As I have previously discussed, it is very helpful to have an employee handbook that clearly sets forth your policies. Particularly when the terminated employee is a member of a protected class, you are much more likely to prevail in a wrongful termination suit if you can show clearly written policies that the employee violated, rather than an informal set of unwritten rules.

You should always be truthful with the terminated employee regarding the reasons for termination, but avoid going into more detail than required. While providing a false reason for termination may seem to spare the terminated employee’s feelings, it can create significant issues if he or she files a lawsuit. A false reason for termination will likely be found out, and then your credibility will take an irreversible hit in the eyes of the jury.

Lastly, before informing the employee of the termination, you should have a plan in place regarding the employee’s access to the company computer system and other sensitive information. It is advisable to inform the IT department to revoke the employee’s access to the company computer system once the termination meeting is underway. Preventing access will prevent both the infamous angry departure email to the whole company and ensure that sensitive data is not transferred without your knowledge. Whether or not you realize it, your business may have trade secrets that a terminated employee could use against you. During the meeting you should also request the employee return any company equipment, keys, keycards and any other company property.

Each and every termination is unique, and retaining legal counsel to provide advice regarding terminations will help avoid many pitfalls, particularly with members of protected classes. Legal counsel can also help draft a termination letter, if you wish to utilize one, and a separation agreement, which can provide the employee financial support for a period of time after termination in return for releasing you from any liability.

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Posted in Employee Handbook, Employer Policies, Employer-employee relations

 

Anatomy of a Wage and Hour Complaint

20 Apr

When an employee believes that he or she has not been properly paid the minimum wage or overtime they may file a complaint for back wages under the Fair Labor Standards Act with the Department of Labor. The federal government set the minimum wage at $7.25 per hour. And when an employee works more than 40 hours in a week, he or she must be paid at a rate of 1 ½ times the regular rate of pay.

However, it is important to note that not all employees are subject to the wage and hour rules of the FLSA. The FLSA only applies to non-exempt employees. The FLSA exempts an employer from both minimum wage and overtime pay for certain categories of employees (executive, administrative, professional, computer and outside sales). In order to qualify for the exemption, the employee must meet certain requirements set forth by the FLSA and make a salary greater than $455 per week.

An employee exempted as a bona fide executive must primarily manage the enterprise or at least a department or subdivision of the enterprise, supervise and direct at least 2 or more full-time employees, and have the authority to hire and fire employees (or have their recommendations as to hiring and firing be given particular weight).

T o qualify for the administrative exemption the employee’s primary duty must be performing office or other non-manual work related to the management or business operations of the enterprise, and the employee must be allowed to utilize discretion and independent judgment with regard to significant work-related matters.

The FLSA recognizes two types of professional employees subject to the exemption. A learned professional must perform work requiring advanced knowledge in the field of science or learning which is acquired by attending a prolonged educational instruction. A creative professional must perform work requiring invention, imagination, originality or talent in a recognized filed of artistic or creative endeavor.

In addition, any employee who performs office or non-manual work and is paid total annual compensation of $100,000 or more is exempt if they regularly perform at least one of the duties of an exempt executive, administrative or professional employee.

A computer employee will be exempt if he or she is employed as a skilled worker in the computer field performing the application of systems analysis techniques and procedures or designing, analyzing, creating, documenting, modifying or testing computer systems, machine operating systems or programs.

The outside sales exemption requires the employee’s primary duty to be making sales or obtaining contracts or orders for services and the employee must be customarily and regularly working away from the employer’s place of business.

Once a complaint is filed with the DOL, the staff will review the complaint to determine if the employee was a non-exempt employee performing work covered by the FLSA and whether they were not properly paid in violation of the FLSA. If the DOL finds a reasonable belief that a potential violation occurred, an investigation of the employer will be conducted. In the event that the DOL is unable to find a violation, or if they cannot secure the back wages, the employee may then bring a lawsuit in federal court.

Once you have been notified of a wage and hour complaint, your first action should be alerting or securing legal counsel. Wage and hour lawsuits are often conducted collectively, allowing a number of employees to bring a suit together, which makes it easier for employees to bring the suit and can lead to a larger award of back pay overall. If legal counsel is brought in early, counsel can evaluate the employees’ claims and determine if settlement is your best option, particularly if settling will reduce costs and publicity.

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Posted in Anatomy Lessons, Department of Labor, Employer-employee relations

 

To Handbook or Not to Handbook

17 Apr

Terrible Shakespeare paraphrasing aside, the question of whether or not an employee handbook is necessary has been discussed, sometimes heatedly, on a number of occasions. It is easy to see why the employee handbook is ostracized, many are long, boring, heavy and complicated, to the point where an employee needs to hire his or her own legal counsel to parse through the legalese. This assumes, of course, that the employee is even reading the handbook.

I count myself as a proponent of employee handbooks, and not because I write them. If you have read any of my other blog posts, you will notice that I am a firm advocate of clear communication with employees.

Many employee handbooks forget the main purpose of a handbook, to communicate the policies to the employee. For example, your vacation policy should only require a few sentences: how many days they get, the way vacation is accrued, and the policy for requesting vacation.

The contents of an employee handbook will always differ from business to business. Most employers want policies regarding time off, discrimination, and harassment. Your business may want or need to have a dress code, or a computer/social media policy; and the bulk of a handbook’s content should be specifically tailored to your business. However, one rule should govern handbook drafting: keep it as simple as you can. And I would be happy to discuss your particular handbook at any time.

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Posted in Employee Handbook, Employer Policies, Hiring and Recruitment

 

NLRB Notice Poster Requirement Struck Down

13 Apr

The District Court of South Carolina struck down the NLRB requirement that employer’s post the “employee rights” notice poster in US Chamber of Commerce v. NLRB. The Chamber argued that the NLRB could not require employers to post the notice because it is not authorized by the National Labor Relations Act. The NLRB argued that Section 6 of the Act, which allows it to promulgate rules that are necessary to carry out its mission, provided the required authority.

The district judge ruled that Section 6 requires rules promulgated by the NLRB be necessary to carry out other provisions of the Act, and the NLRB failed to prove that the notice-posting rule was necessary. The judge noted in his opinion that with computers and the Internet, information is freely available to employees, further weakening the NLRB’s claim that the poster was necessary.

While this was certainly a step back for the NLRB, this will not be the last we hear of the “employee rights” notice poster. The NLRB will likely appeal the district court’s ruling, and both sides will argue their case before the court of appeals. However, the rules effective date will almost certainly be pushed back yet again, so stay tuned.

UPDATE: The District of Columbia Circuit Court has enjoined the NLRB from enforcing the regulation that would have required employers to post the employee rights notice poster pending further review. The issue is not over yet, but it will likely be at least several months before the NLRB’s appeal is ruled upon.

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Posted in NLRB

 

Anatomy of an EEOC Charge

11 Apr

When an employee believes he or she has been discriminated against at work because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information under a number of federal laws, they can file a Charge of Discrimination with the Equal Employment Opportunity Commission. All of the laws enforced by the EEOC, except the Equal Pay Act, require an employee to file a charge before filing a job discrimination lawsuit.

The employee must bring the charge within 180 days from the day the discrimination took place, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. With allegations of age discrimination, the filing deadline only extends to 300 days if there is a state agency enforcing the law. The filing deadline applies to each incident of alleged discrimination, unless continuing harassment is alleged, in which case the employee must file within 180 or 300 days of the last incident of harassment.

Once the employee files the charge with the EEOC, you will receive a notice and copy of the charge within 10 days. At this point, it is advisable to retain legal counsel to represent you. Make sure that you, and any other employees, do not take any adverse action against the employee filing the charge, as retaliation can lead to additional liability. The EEOC will encourage you and the employee to attend a mediation session, where a mediator will try to help you reach a voluntary statement.

If mediation is not used or is unsuccessful, then the EEOC will investigate the employee’s allegations. The length of the investigation depends on the allegations and the amount of information needed. Depending on the charge, the EEOC may visit you in order to interview employees and gather documents. If you refuse to cooperate (which is not recommended), the EEOC can obtain a subpoena to require you to provide access to company property, obtain documents and compel testimony.

After the investigation is completed, if the EEOC finds a violation, it will attempt to reach a voluntary settlement with you. In the event that the settlement negotiations are unsuccessful, the agency will refer the case to its legal staff to file a lawsuit. The EEOC has limited resources, and only tends to file lawsuits in very serious cases. If the EEOC’s legal staff decides not to file a lawsuit or if the EEOC does not found a violation, it will send the employee a Notice-of-Right-to-Sue, which gives permission to file a lawsuit on their own. Once the employee receives a Notice-of-Right-to-Sue, they will have 90 days to file a lawsuit, which will begin the normal civil litigation process.

Where a violation is found, the employee may be entitled to reinstatement, promotion or back pay, and you will be required to remedy the discriminatory practices and take steps to prevent discrimination in the future. Employees are also eligible to recover attorney’s fees, expert witness fees and court costs. However, there are limits on the compensatory and punitive damages that an employee may recover depending on the size of your business:

  • 15-100 employees = $50,000
  • 101-200 employees = $100,000
  • 201-500 employees = $200,000
  • More than 500 employees = $300,000

And for intentional age discrimination or intentional sex-based wage discrimination, while compensatory and punitive damages are not available, the employee may be entitled to liquidated damages equal to the amount of back pay awarded.

The most important thing to remember is to seek legal counsel as soon as you receive the EEOC Charge. You may be able to have the charge dismissed quickly with an attorney’s assistance, which can discourage an employee (and more importantly the employee’s potential attorney) from filing a lawsuit in court.

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Posted in Anatomy Lessons, Department of Labor, Employer-employee relations

 

Got Trade Secrets?

09 Apr

Whether you realize it or not, there’s a good chance that your business has trade secrets that are protected under the law. The Uniform Trade Secrets Act, adopted by the majority of states, defines a trade secret as information, including a formula, drawing, pattern, compilation including customer list, program, device, method, technique or process which derives independent economic value from not being generally known or available, and is subject to reasonable efforts to maintain its secrecy. Essentially, the information is considered a trade secret if it provides competitive value to its owner and the owner takes substantial steps to keep it secret.

While most businesses do not possess trade secrets on the same level as the formula for Coke, it is still fairly common for most to possess trade secrets in some form or another. If your business has customer lists, a special method for performing a task or process for making a product, you could have a trade secret. Of course, for information to be considered a trade secret, the business must treat it as such.

Generally, the first step in protecting trade secrets is including a confidentiality policy in your employee handbook that sets forth the employees’ confidentiality obligations. The policy should that any trade secret information should be returned upon termination or retirement, and it should never be communicated to a third party without authorization.

Next, it is important that only employees who need to know the information have access to it. Any documents or other information stored electronically should require a password to access them. Password protection will limit the number of people with access and, if information is stolen, can help to determine the person that last accessed the information.

When employees have access to information that is extremely sensitive, it would be prudent to require a confidentiality agreement coupled with a non-competition agreement. It is important to remember that every state has different requirements for covenants not to compete, particularly with regard to the temporal period and the geographic scope. And a covenant not to compete, like any contract, requires some form of consideration. For example, an employee agrees to sign the covenant not to compete in exchange for the opportunity to work for the employer. The situation is more complicated if you are asking an employee to sign a non-compete after the hire date; in that case it is generally sufficient to offer a bonus payment or extra vacation days in return for signing the agreement.

If an employee leaves the company, particularly when they have regular access to trade secrets, it is a good practice to obtain records of their computer activity leading up to their departure. If you are forced to file a lawsuit, any suspicious activity prior to departure will work heavily in your favor.

The level of protection required for your trade secrets will vary depending on the type of trade secret, its usage and the size of your business, so its wise to seek legal counsel when developing or updating your confidentiality policy.

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Posted in Employee Handbook, Employer Policies, Employer-employee relations, Employment Agreements, Hiring and Recruitment

 
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