By now, if you haven’t heard about Donald Trump’s statements on Muslims and his plan to prevent Muslims from entering the country, as well as the vehement support he is receiving from an astonishing number of people, you may be living under a rock. I think you may know where this is going, but bear with me for a moment.
I won’t be shy about this, I will not back down from it and I want this to be clear: Donald Trump’s anti-Muslim rhetoric disgusts me. It disgusts me as a person, as an American, and as a freedom-loving individual. There is no need to use hyperbole here, as some have chosen to do. People are scared and they are clinging to whoever and whatever makes them feel safe.
Given the widespread nature of Trump’s message, it is bound to permeate your workplace. In some it will simply be whispered about, whether in support or opposition. In others, there will be more spirited discussion. Make no mistake about it, danger lies in both situations.
Regardless of Trump’s rhetoric, making statements that could be construed as anti-Muslim or discriminatory in nature could land your company in serious hot water. While you do not necessarily have to forbid your employees from discussing Trump (and in fact, such a ban would likely be an exercise in futility), you may wish to remind your employees of your anti-harassment and anti-discrimination policy and ask them to exercise good judgment when discussing sensitive subjects in the workplace.
Also, remember that out of work statements made on social media can give rise to a hostile work environment claim, so it may be time to dust off your social media policy and remind your employees that your anti-harassment and anti-discrimination policies apply to social media as well.
Unlike Trump, you should use good judgment in approaching this and other sensitive subjects. Don’t approach race, national, religion, sex, or other factors with anger and fear; rather be inclusive and welcoming to prevent these issues before they arise.
HR Cinema is an ongoing feature here at The Employer’s Lawyer. It combines my love of movies with my passion for human resources and employment law. Please feel free to suggest movies in the comments and I will do my best to incorporate your suggestions.
It’s that time of year again, May 4th also known as Star Wars Day! And since I did a post about “A New Hope” last year, I thought it was only appropriate to move onto “The Empire Strikes Back.”
Empire has always been my favorite of the original trilogy, between the appearance of Lando, Luke’s training with Yoda, and the “Luke, I am your father” reveal, there’s just so much to love! For the three people out there who have never seen Empire, here’s the IMDB description:
After the rebels have been brutally overpowered by the Empire on their newly established base, Luke Skywalker takes advanced Jedi training with Master Yoda, while his friends are pursued by Darth Vader as part of his plan to capture Luke.
Now, onto the real reason you’re here, what can you learn from Empire?
Scruffy-Looking Nerf Herder
Oh, Han and Leia, they’re the ultimate dysfunctional couple. Certainly in the beginning they have what could best be described as a love-hate relationship. Its clear they both have feelings for one another, but they also particularly enjoy a dialogue that tends to be far from kind. Leia calls Han a “stuck-up, scruff-looking, Nerf-herder.” And Han constantly refers to Leia as “your worship” or “your highness” in a tone that suggests he is not affording her the respect she is used to.
When you’re the Rebel Alliance valiantly trying to fight off the evil Empire, a relationship between two of your leaders could certainly be trouble if it impacts their ability to perform their jobs. On the plus side, it seems likely that the whole war with the Empire made it unlikely that anyone would file any sexual harassment or discrimination claims based on Han and Leia’s behavior. Now, obviously Han and Leia’s relationship didn’t affect the Rebel Alliance too much, since they eventually defeat the Empire (I feel pretty safe not putting a spoiler alert on that one, and if that was a spoiler, shame on you…).
I’m guessing that your business is not in a war with the Empire (if you are, please contact me, I’ve always wanted to fly an X-Wing), so a workplace romance, whether dysfunctional or not, may cause you some difficulties. It bears noting that Leia is, ostensibly, Han’s superior, so that creates an added issue. When superiors date their subordinates, you’re almost begging for the other subordinates to start complaining about favorable treatment. And a superior-subordinate relationship opens the door to a quid pro quo sexual harassment claim, where the subordinate claims that the superior promised them some benefit or benefits in return for performing sexual favors.
Even if your office romance is between equals, it can still cause problems. Sexual harassment claims can be brought by other employees who feel the couple’s behavior is inappropriate and makes them uncomfortable. Even if lawsuits are not a danger, then you still need to think about the lost productivity when a couple is in a fight or worse, breaks up. Chances are, neither of them will be happy and neither of them will be performing at their optimal level.
Finally, the other danger with workplace relationships: the love triangle. We all know Han and Leia had a thing for one another, but then there was that (in hindsight awful) kiss between Leia and Luke. Han was clearly jealous, Luke was smug and Leia was right in the middle. Now you’re guaranteed to have at least one angry or upset employee, and quite possible you have three employees that unproductive.
Movie takeaway: Romantic relationships belong outside of the office, and even if you don’t end up getting sued, there’s a good chance your employees’ productivity will decrease.
Help You, I Can
I’ve said it before, I’ll say it again, being nice is an under-rated and conspicuously absent trait at times. Now, as Supreme Court Justice Scalia is fond of saying, the law is not a civility code. So there’s no statutory requirement for you to be nice, but just think how much better work, and the world, would be if more people were just nice.
When Luke crashes on Degobah, he is startled by a short, old alien, using a cane and wielding the strangest syntax anyone’s ever heard. He appears simple, foolish and of no threat to anyone. Luke, being headstrong, pushes and pushes this alien to help him find a “great warrior” Master Yoda. Of course, we all know now that the alien is Yoda and he’s testing Luke’s patience. Luke, however, doesn’t realize it until Obi-Wan Kenobi speaks to Yoda, at which point Luke begins begging Yoda to train him. Luke’s impatience and outright rudeness of Yoda is a difficult first impression to rehabilitate.
We can all apply this lesson to our work, and everyday, lives. No matter what a person’s position within your company (or in the restaurant you dine in or the hotel you stay in), they deserve, at the very least, some kindness. Sometimes you’ll find that you will benefit from showing someone some kindness, and other times you’ll just make someone’s day.
Movie takeaway: Be nice to everyone, no matter how unimportant they may appear.
Do or Do Not, There is No Try
I had to include this one, of course. Its simple and correct. Commit to doing something and believe you can do it, and you’ll be surprised what you can accomplish. And may the Force be with you…
A great deal has been written in the last week about whether you should monitor your employees’ social media activity. A lot of very smart folks fall on both sides of the debate, since it can be a rather murky issue involving a balancing act between protecting the company and respecting employees’ right to act as they wish in their time off work. Notice that I didn’t say employees’ privacy. Little, if anything, shared via social media is private, so monitoring social media can hardly be deemed an invasion of privacy.
So now I’ll offer my two cents on the subject: it probably isn’t worth it to actively monitor your employees’ social media accounts. Doing so would require a great deal of time and effort for only a small likelihood of a worthwhile result. And let’s face it, you’re probably already busy as it is, do you really need more on your plate?
Instead, just be prepared to take action if an employee posts something that could damage your business or reputation. Because the truth is, you’ll find out about it. Once you know about it, then you can decide on an appropriate response.
Monitoring doesn’t do much more than allow you to act a little bit quicker. After all, monitoring the account wouldn’t prevent an employee from saying or sharing something, it would only notify you if they did. Once the employee posts something, it will be seen and it will be cached, at which point it’s never truly gone anyway.
So maybe the biggest takeaway here is to make sure you hire employees you can trust to represent your business and your brand. Monitoring employees’ social media use probably isn’t worth the effort.
The Fair Labor Standards Act requires you to pay your employees for time they actually spend working, whether they’re working on your property, at a client’s property, at home or anywhere else. When evaluating whether wages are owed to your employees, the key inquiry is whether the employee is actually engaging in work.
Some businesses, particularly those in the medical field or other fields where emergencies arise, have employees “on call” for a certain period of time in addition to their actual work day. Under some circumstances, you may need to pay your on-call employees for their on-call time.
When determining whether your employees’ on call time is compensable requires a case-by-case analysis. For example, if your is required to remain on your premises or is unable to use their time for their own purposes, the on call time is likely compensable. Conversely, if you simply require your employee to provide contact information so they can be reached after hours, then on call time is likely not compensable.
While the above situations are fairly simple, most situations actually fall somewhere in the middle, which makes the on call pay issue much murkier. When evaluating the compensability of on call time, a court will primarily consider the amount of control you exercise of the employee while they are on call. A court will review your employee’s ability to use their time, including:
• Is your employee required to remain on the premises?
• If allowed off the premises, are there excessive geographic restrictions on your employee’s movements?
• Is more than merely leaving contact information required?
• How often is your employee actually contacted while on call?
• Is there a fixed time for your employee to respond while on call?
• If there is a fixed time to respond to calls, is the required response time unduly restrictive?
• Can your on-call employee easily trade on-call responsibilities with another employee?
• To what extent is your employee allowed to freely use time while on-call?
In short, a court will try to determine whether, and how much, your employee’s time is restricted during the period in which they are on call. If your employee isn’t permitted to reasonably use their own time as they wish, then you will be required to pay wages and, if applicable, overtime.
Alright, alright, alright… After a very entertaining and high-ly informative #nextchat about medical marijuana in the workplace, I started thinking about some of the points made today and decided that I’d like to expand on some of the ideas thrown around. And I’ll try to avoid more bad jokes and puns, but no promises…
The Sky Isn’t Falling
Even with the passage of bills in your state allowing medical marijuana, it isn’t the end of the world as we know it. After all, it’s not as if your employees are going to run out to get medical marijuana cards and start smoking up at work. For the most part, you won’t have any employees that need medical marijuana. And even if you do, it seems unlikely that they’re going to ask to start getting high at work. So take a toke deep breath, and relax.
Major Policy Overhauls Probably Not Required
Alcohol is a legal substance that affects a person’s ability to function. Marijuana is a (potentially) legal substance that affects a person’s ability to function. See where I’m going with this? You don’t allow your employees to come to work drunk, or drink at work (except for those in-office happy hours, right?), so you don’t want your employees working while high or smoking weed at work. It’s doubtful that you’re going to be required to allow Jeff Spicoli stoned employees to work and raid the vending machine.
Job Duties are a Factor
Speaking of performance, your tolerance of medical marijuana usage may depend on your employee’s job duties. If your employee is a desk jockey, then there’s less danger that being stoned will cause a dangerous incident. However, if the employee drives a forklift or a tractor-trailer, then medical marijuana use is not going to work. Allowing usage will need to be done on an individualized basis, and there likely won’t be a uniform approach that works.
Testing Could Be Difficult
Testing an employee that you believe is drunk isn’t all that hard. You give them a breathalyzer, and if its too high, then they are disciplined. Marijuana, and more particularly THC, remains detectable in the system for long after its effects wear off. In other words, giving your medical marijuana-using employee a drug test doesn’t really prove anything other than the fact that they used marijuana sometime over the last few weeks. As a result, it seems like you’ll need to evaluate an employee as to whether or not they’re able to complete their work. Such an evaluation will also necessitate independent evaluations by more than one supervisor as well, to avoid claims of a contact high bias or misunderstanding.
Federal Employment Laws May Not Apply
A great deal of discussions about medical marijuana use involve an employee’s ability to invoke the ADA or other federal employment laws. However, the ability of an employee to invoke federal law is questionable. The federal government still classifies marijuana as a Schedule 1 drug, and under federal law marijuana is illegal. It seems illogical for an employee to ask a federal court to allow him or her to engage in an activity that the federal government deems illegal. So, at this point, until the federal government changes its stance on marijuana, federal employment laws aren’t much of a concern. State laws, however, may apply.
Even if medical marijuana isn’t legal in your state, it seems like we’re heading toward legality in most states over the next few years. It won’t hurt to file some of this away, just in case your very own medical marijuana-using Wooderson employee comes into your office.
If your employees have access to sensitive or confidential information, it’s likely you required your employees to sign non-competition agreements. Pennsylvania courts don’t look favorably on non-competes and, as a result, they have placed certain limitations on the ways employers can limit their former employees. In the words of Pennsylvania courts, a non-compete must be reasonably limited in both temporal and geographic scope. In other words, your agreement may only last for a reasonable amount of time and it cannot cover a geographic area that is greater than necessary to protect your business interests.
The issue of temporal scope is not all
that complicated and courts won’t have a problem with limitations on employment lasting one or two years. However, the issue of proper geographic scope can be much more difficult to determine. So, instead of trying to determine your geographic footprint and/or the area in which your employee operates, let me suggest an alternative: don’t use a geographic scope.
Now I’m not suggesting that your non-compete should be unlimited in scope, because that will never pass judicial review. Rather, you should create a list of competitors and other employers that could benefit from the confidential information that your employee possesses and limit the former employee from joining those companies for a set period of time. Just be sure that your list of competitors is limited only to those who would truly benefit from your former employee’s knowledge, because if your agreement is challenged, you may be required to explain why each company is included on the list.
Additionally, your list should include a “catch-all” provision allowing you to supplement the list if a new competitor enters the market between the time that your employee signs the non-compete and the employee leaves your employ. Alternately, you could amend your non-competes and require employees to sign a new one when you amend it, provided you offer sufficient consideration each time you ask your employees to sign a new agreement. Of course, this approach requires you to keep an up-to-date list of competitors.
By limiting the former employee from joining your competitors, you can prevent the dissemination of your confidential information, while narrowly tailoring your restrictions in a way that will pass judicial muster. And, just as importantly, the agreement is fair to former employees, who can go work for an employer in the same area where your confidential information won’t be used against you.
Allowing, or turning a blind eye to, March Madness pools makes sense because it is extremely unlikely that the IRS or local authorities are going to come knocking just because your employees created an office pool. So instead of telling you all the possible negative consequences resulting from March Madness, let’s find some positives.
March Madness pools bring employees together. As long as you can avoid arguments and fights, employees can bond over a shared love of sports and good-natured competition. March Madness may provide a means to encourage different departments, and even office locations, to interact, particularly in larger companies.
While it is almost inevitable that March Madness will cause a dip in productivity, of some degree, the increase in employee bonding and engagement may lead to greater productivity overall. Employees that are allowed to have a little bit of fun at work will be happier employees. And happy employees will produce a better work product and will be less likely leave to look for other jobs.
The effect of March Madness on work productivity may actually bit a bit overstated, according to a 2013 study by OfficeTeam. The study found that only one in five workers were distracted at work by major sporting events, which is good news with the FIFA World Cup approaching in a few months as well. Even those workers who are somewhat distracted will simply just work harder once the tournament ends to catch up on work.
In short, a little March Madness may not be so bad and allowing your employees to indulge a bit could be beneficial. Maybe this year you can relax, put your feet up and join in the fun. Or, at the very least, you can limit your enforcement to large wagers, body paint and those clearly not getting any work done, whatever you feel comfortable with.
Two fairly new apps are receiving a lot of press lately: Confide and Secret. While you may have heard them mentioned before, you may not be familiar with what each app offers.
Confide is an iOS messaging app that its creators say will allow users to send messages without fear that those messages will be shared. Confide accomplishes this in several ways. Messages must be swiped to be read, preventing a simple screenshot. In addition, the app will alert you if a screenshot is attempted (because let’s be honest, someone will attempt it at some point). Finally, messages are not stored on Confide’s servers, so once they are read they’re supposed to be gone for good.
Secret isn’t a messaging app, its more of an anonymous sharing app. The app allows you to create a post, saying anything that you’d like, without attaching your name to it. They want users to “speak freely” in the hopes that others will share your thoughts.
Unfortunately, there’s no sure-fire way to ensure that the words you typed into Confide won’t be shared in some manner. There’s no alert to inform you that the recipient of your message had someone reading over their shoulder. There’s also no way to prevent the recipient from simply telling someone else about the message. Every day plaintiffs file lawsuits based on testimony that a fellow employee or supervisor said something derogatory or inappropriate. Confide and Secret only change things slightly. “I heard the boss say he’d never hire a pregnant woman” isn’t any worse or damaging than “I saw the boss’s message on Confide that said he’d never hire a pregnant woman.”
With any of these apps, you’re entirely dependant upon the trustworthiness of the recipient. Just because they don’t have an email or a screenshot of the message does not mean that it can’t be used, in some way, to damage the company.
I’ll leave you with this thought: If you wouldn’t feel comfortable saying it in front of a judge, then don’t say it, don’t type it and, maybe, don’t even think it.
I am a huge fan of do-it-yourself. I’ve changed the oil in my car since I turned 16. When our dining room table was too small for a family Thanksgiving and we couldn’t afford the ones we liked, I built a new table. In fact, just a few days ago, I had to grab a few tools to unclog a shower drain after a small floss container ended up there.
However, certain projects are beyond my knowledge or abilities. You won’t find me rewiring any rooms in my house. One mistake could land me in the hospital or burn down my house. In the same vein, one small mistake with regard to employees can have significant consequences.
When it comes to determining a worker’s classification, drafting employee handbooks or policies, or terminating an employee, it may seem like a good cost-saving measure to handle it on your own. After all, hiring an attorney will cost a bit of money, even if the advice only requires a few hours of your attorney’s time. And at first blush, many of these situations seem fairly simple, at least in the beginning.
Unfortunately, small mistakes during the process can lead to large problems down the road. If you classify a worker as an independent contractor, when they should be an employee, your company could face tax claims and wage claims. If the error isn’t discovered for several years, and particularly if it involves a number of workers, it could lead to a very large judgment against your company.
Similarly, if you include an unlawful provision in your employee handbook or employee policies, like forbidding employees from discussing salary information via social media, the NLRB may begin investigating your social media policies and possibly take other punitive action as well.
And last, but certainly not least, employee terminations. Pennsylvania is, after all, an at-will employment state, but federal and state law forbid terminations for certain reasons. If you terminate an employee for an unlawful reason, like violating an unlawful employee policy, you may find your company facing a lawsuit and an order from the NLRB to reinstate the employee. Or if you terminate an employee for a valid reason, but they are in a protected class or have a disability, you could be facing a long and difficult lawsuit.
In each of these three examples, a DIY approach that initially saved money will cost much, much more in the end. Lawsuits, in particular, can be expensive, even if you win.
The lesson here isn’t that you should be paranoid about making mistakes or jumping at shadows. It’s this: find a good attorney and use them. Don’t be afraid to pick up the phone or send an email asking a question. Ask for a review of the employee handbook periodically to ensure that its still in compliance with the law. Ask for guidance on terminating an employee. Ask for an interpretation of the law, particularly when you know that a new decision was released.
If you are proactive in seeking legal assistance, you’re going to have far fewer problems and much smaller legal bills.
I’ve written about technology and social media before, and how they are continually impacting your business. Social media, particularly, plays a huge role in your employees’ lives. And if you think they’re not accessing social media throughout the day, including work hours, I have a bridge in Brooklyn to sell you.
Over the last few years, the NLRB, whose rulings may cover both union and non-union workplaces, began targeting employer social media policies. Under the National Labor Relations Act, an employer may not prevent employees from discussing working conditions or engaging in protected, concerted activity and the NLRB has been applying those rules to employer social media policies. Where an employer’s social media policy directly infringes on those rights, or even if it includes vague terms or provisions without limitation, the policy may be unlawful.
The NLRB’s guidance for social media policies seems to change every day, but these are the important points to remember:
Don’t prohibit disclosure of “confidential” or “proprietary” information without specifically defining the terms. Even better, use examples.
Be careful with restricting employee’s use of your business’s name or trademark.
Don’t require employees to obtain permission before posting to social media, as it could appear that you’re trying to inhibit protected activity.
Narrowly tailor any prohibition on “offensive, demeaning, abusive or inappropriate remarks” because protected employee criticisms of labor policies or employee treatment could be prohibited.
Don’t prohibit employees from discussing legal matters or litigation, because employees must be allowed to discuss potential claims against your business.
Don’t include any language that may be read to prohibit or dissuade employees connecting on social media, because it could inhibit protected communications.
Include examples when requiring employee posts to be accurate.
Don’t prohibit employees from discussing salaries, working conditions or job satisfaction.
Unfortunately, while the NLRB’s rulings and guidance are helpful in crafting a lawful social media policy, the NLRB’s rulings may be reviewed by federal appellate courts, resulting in further changes.
In short, make sure your social media policy doesn’t affect your employees’ ability to communicate, specifically defines any terms that may have different meanings and includes examples of appropriate behavior wherever possible.