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.
Imagine that your company has 40 employees, one of whom is subject to hospitalization for a medical condition and requires surgery. He is out of work for several weeks and in his absence, the company realizes that it gets along fine without him. As a result, on his return to work, he is called into a meeting by HR and terminated.
Those of you familiar with the FMLA, know that this particular company would not be subject to its requirements. However, that changes if the company chooses to include FMLA language in its employee handbook.
An employee may be entitled to the protections of the FMLA if the employer publishes a policy providing FMLA leave, the employee reasonably relies upon the policy and then the employee is disciplined for their reliance. This is referred to as an equitable estoppel claim, because the employee is asking the court to prevent the company from taking an unfair action.
In a recent Pennsylvania federal court case, a similar situation occurred, with the company terminating the employee upon his return from work, despite the company’s FMLA policy in the handbook. The court, however, declined to offer the employee FMLA protection because he failed to prove that he relied upon the policy. He did not decide to undergo surgery or take leave because he thought he was protected, he did it simply to improve his health. In fact, he admitted that he did not receive the employee handbook or read the FMLA policy.
So what can you take away from this case?
First, if you fall under the minimum employee threshold for the FMLA (50 employees within 75 miles of one another), you may certainly include a medical leave policy, but do so with the knowledge of its administrative difficulties as well as the limitations it will place upon you.
Second, even though this company escaped liability, you shouldn’t count on the same. If you place a medical leave policy in your handbook, make sure you adhere to it and administer it in an equal manner for all employees. Otherwise, your employee (and their attorney) may learn from this case and I’ll be writing about your company…
Use this case as a lesson, and review your FMLA policy now (preferably with legal counsel’s assistance) to determine whether you need one, how to implement it and what, if any, limitations it places upon your company.
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…
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.
Well, we’ve already established that I’m a nerd and a big fan of comic book movies, so it was only a matter of time until I saw Guardians of the Galaxy and turned it into a blog post. For those of you that haven’t seen it, stop reading and go see it right now (just leave work, it’s okay, I won’t tell), because not only is it an excellent movie, but there will be spoilers ahead.
Here’s the summary, from IMDB, just in case you haven’t seen one of the millions of trailers:
After stealing a mysterious orb in the far reaches of outer space, Peter Quill is now the main target of a manhunt led by the villain known as Ronan the Accuser. To help fight Ronan and his team and save the galaxy from his power, Quill creates a team known as the ‘Guardians of the Galaxy’ to save the world.
Okay, so besides being one of my favorite movies this year, what can Guardians of the Galaxy teach us about the workplace?
What They Say (Part I)
Rocket is one of the of the ragtag group that calls themselves the Guardians of the Galaxy and he’s fairly hard to miss, since he’s a sarcastic, talking raccoon. Throughout the beginning of the movie, Rocket is referred to as “vermin” and a number of other derogatory names. It becomes clear, fairly quickly, that despite his hard (yet fluffy) exterior, Rocket is hurt by the name-calling. Upset and angry, Rocket lashes out at the rest of his team. Unbeknownst to the others, Rocket couldn’t help that he was experimented on, and turned into a talking raccoon.
In the workplace, it is important to make it clear that speech that is discriminatory or demeaning to fellow employees will not be tolerated. Until his outburst and confession regarding the effect of the derogatory names, Rocket didn’t truly feel like he was part of the team. Once the team stopped referring to him by derogatory names, he was willing to risk his life to save them. If employees are alienating another employee, or group of employees, you’re bound to run into problems.
First, you are at risk for a lawsuit based on discrimination. Current case law has made it clear that everyone is in a protected class, and with state laws generally providing more protection than federal laws, it is easier and easier to bring a discrimination suit. While an employee’s derogatory speech will not immediately give rise to liability, your company’s failure to properly address the derogatory speech will almost certainly place you on the losing end of a lawsuit.
In addition, the simple fact that an employee or group of employees feels alienated may have detrimental effects on your business. Many studies have shown that bullied or alienated employees are significantly less productive.
Movie Takeaway: You should have policies prohibiting discriminatory behavior, as well as provide training on acceptable and unacceptable behavior, or you could find yourself on the losing end of a lawsuit and with unproductive employees.
What They Say (Part II)
Another of the Guardians, Gamora, is something of a wildcard. Initially, she’s dispatched by the film’s bad guy, Ronan, to obtain the mysterious orb that Star Lord has stolen. We quickly find out that she took the assignment in order to betray Ronan, and sell the orb herself, to ensure that Ronan can’t get it. However, no one knows Gamora’s true intentions, particularly the other inmates when she’s imprisoned. Many of them talk about how she is Ronan’s unthinking and unfeeling henchwoman, and acting only to assist Ronan, which obviously hurts her credibility as a potential hero.
Similarly, its easy for rumor and innuendo to get out of control in the workplace, leading to damaged reputations and careers. As many of us know, workplaces can be worse than high schools when it comes to rumors. Rumors also have another name: defamation. Defamation is limited to only speech or writings that are false and published to third-parties, but quite frankly, that’s exactly what rumors are.
While not something that often comes up in the workplace, human resources or employment law, defamation is a very real possibility.
Employers also need to cognizant of what supervisors and other management personnel say about employees to third-parties, whether inside or outside the company. Additionally, employers should decline to provide references to former employees, to reduce the chances of being sued for defamation if they provide a negative reference. It is perfectly acceptable to provide the employee’s start and end date, as well as job title and final salary, when asked for a reference.
Statements, particularly those that are written, could come back to haunt your company if an employee or former employee brings a defamation suit. Even if you win in the end, defending such a suit could lead to significant attorney’s fees.
Movie Takeaway: Consider policies that prohibit spreading rumors about others and decline to provide references to former employees.
A hat-tip to Kate Bischoff for her suggestion of the movie and her help in writing this post! If you’re not following her on Twitter, you should be!
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.
Two recent cases, one from the plaintiff’s side and one from the defendant’s side, highlight the importance of following information retention requirements.
Recently, Heather Painter learned a difficult lesson about deleting. Ms. Painter claimed that her boss, a dentist, sexually harassed her. After filing her lawsuit, she deleted some Facebook comments that (allegedly) said she loved her job and working for the dentist. Ms. Painter claimed that she did not know it was improper to delete the comments, but the court disagreed. Deleting the posts was a deliberate act, and the court could not infer that she deleted comments, that were detrimental to her case, for an innocent reason. The judge decided that the jury should infer that the Facebook posts undermine Ms. Painter’s claims, which is a particularly rough sanction.
Even more seriously, Kurt Mix, a former high-level engineer for BP, is in trouble for deleting text messages from his employer-supplied iPhone in April 2010. A federal jury decided that Mr. Mix deliberately destroyed the messages because they would prove that BP lied about the amount of oil spilled into the Gulf of Mexico. Now he is facing a prison term of up to 20 years and a max fine of $250,000 in fines.
Back in the day, businesses only had to worry about retaining paper documents. Now, information is stored in so many places and forms. Important information is stored via hard drive, cloud drive, email, text message, social media and more. Corralling, and more importantly retaining, that information can be a herculean task, especially when employees have easy, and sometimes sole, access to the information.
So, how do you tackle this difficult issue? Develop a comprehensive information retention policy and provide your employees with training on implementing the policy.
Your information retention policy should address:
How long information should be retained
When information should be retained beyond the policy limits (for example, when litigation occurs)
Where information should be stored and in what format
Procedure for inquiries regarding implementation of the policy
Disciplinary procedures for violating the policy
Training, which is probably more important than the policy itself, should address not only the proper retention of information, but the reasons for doing so. Your employees will be much more likely to adhere to the policy if they know they could face fines or prison time, as well as subject the company to significant sanctions in court.
And most importantly, when it comes to information, never, ever, ever try to destroy something that hurts your case. It will almost always come back to haunt you, and it will be much worse when it does.
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.