Monday, July 25, 2016

That is SO last week

Pokemon Go has taken the world by storm.  Last week, several blogs discussed what employers can do to limit the effect of the game on the workplace.  HR Morning advised looking at information technology and social media policies to make sure that they limit downloading games on company devices.  Among other recommendations, SHRM advised that a distracted driver policy might be useful.  Time asked if a manager would get mad because an employee was playing Pokemon Go in the office.  We assume so. 

In other developments:

Thursday, July 21, 2016

Managing Politics and Social Issues at Work

This is a time of intense politics and troubling news.  The headlines – and the strong feelings they generate – inevitably affect the workplace.  Managers and HR professionals often end up moderating political arguments and consoling employees distraught over national and world events, all in an effort to prevent conflict and make sure the work is getting done.

Although every workplace is different, we find that taking certain actions can help keep politics, social issues, and high emotion from putting an organization at risk.

Establish clear (and lawful) guidelines for workplace communications.  As we recently noted, there is no free speech in the workplace.  Private employers can limit and control political expression at work, just as they can control workplace violence, discriminatory speech and actions, and harassment. What employers cannot do, of course, is prevent employees from talking about working conditions or wages; those conversations are protected concerted activity under the National Labor Relations Act.  Guidelines for employee speech and behavior should be clearly expressed and consistently applied.  The run-up to an election and periods of social upheaval are appropriate times to reiterate those guidelines and remind employees what is expected of them.

Keep guidelines realistic.  It’s not possible to prevent every political discussion in the lunch room or every reaction to current events that takes place behind closed office doors.  Guidelines controlling political speech should focus on speech that imposes one employee’s views on others, disrupts employees’ ability to work, or becomes disrespectful.

Provide an appropriate outlet for strong feelings.  An employee who is disrupting the workplace with his or her political views or reaction to social issues may need a safe place to vent.  That could be an Employee Assistance Program, if one is available.  It may also be useful to remind the employee that there are political and social affinity groups available – outside the workplace.

Distinguish between expressing political views at work and private expression.  Political or social opinions expressed on social media only become the business of the employer when they directly impact the workplace.  For all the same reasons that it may not be wise for supervisors to “friend” their subordinates on social media, however, it’s probably not wise for supervisors and subordinates to argue politics on social media.

Require managers to model good behavior.  Nothing undermines a policy more quickly than violations by managers and supervisors.  Regardless of how strong a manager’s political opinions or views on social issues may be, he or she must stay in strict compliance with workplace policies and held immediately accountable for violations.

Treat all political opinions equally.  If an employer discourages political speech in the workplace, it must discourage the expression of all political views. It is human nature for business owners, managers, and HR professionals to find political views they agree with less intrusive or disruptive than opposing points of view, but applying different standards to the expression of certain political views can only lead to more conflict.

Focus on respect and civility.  Employers are in a position to create and maintain a respectful work environment, where civil expression of opposing viewpoints is required.  In times like these, doing so can make work a place of respite from angry disagreements and overheated rhetoric.

Posted by Judy Langevin 

Monday, July 18, 2016

That is SO last week

The combined topics of Facebook and race were in the news last week. A Pennsylvania judge ruled that an employee’s personal Facebook page laced with race-based stereotypes could be used to impeach her in her lawsuit, which alleged she was subjected to race discrimination and retaliation.   In addition, Facebook made statements claiming that it does not have a diverse workforce because of a “pipeline” problem, suggesting that the underrepresentation of minorities in tech is a reflection on the educational system.  Minority groups criticized Facebook and pointed to studies showing that even though minority graduation rates are low, their representation in the workplace is even lower.

Thursday, July 14, 2016

Busting Employment Law Myths

Employment lawyers get to hear lots of great stories and lots of client opinions.  That’s part of why we love our jobs.  Many of the stories describe goofy or inappropriate employee behavior – and some include goofy or inappropriate employer reaction to employee behavior.
Quite often, as we listen to our clients, we encounter myths about what the law requires of workers and management.  Some of these myths have persisted for decades, and some have their roots in some legal reality.  All of them put employers at risk, however, because they distract from best practices and may even encourage unlawful practices. Here are some of the employment law myths we regularly hear, and always try to debunk:
This is an at-will state, so employment laws don’t apply.” Federal and state anti-discrimination, wage and hour, whistleblower, and many other laws most definitely apply, regardless of whether employment is at-will.  Employment at-will means that an employer can terminate an employee with or without notice and for any reason as long as it’s not an unlawful reason. Employers can also face liability for unlawful actions short of termination, like failure to hire, failure to promote, or employee discipline, for breach of contract, or for negligence, fraud, defamation, and other employment-related torts.  
 “We have to give our employees due process.”  Employers and employees often think that employees get to tell their side of the story before they’re fired, and that employers have to listen and consider the employee’s explanations.  Not so.  Generally, private employers can terminate employees for any lawful reason without seeking or considering the employee’s explanation.  That said, it is usually advisable for employers to have a coherent and justifiable reason to terminate. Just like free speech in the workplace, discussed below, employee due process rights only exist when the government is the employer.
“We can’t stop employees from exercising their right to free speech in the workplace.” Over 71 percent of employees and a lot of employers believe that First Amendment free speech protection exists in the workplace. It doesn’t.  Unless employed by the government, employees have no free speech rights at work.  They can be fired for making silly statements, posting offensive pictures on social media, or having a political bumper sticker on their car.  It’s only when an employee complains about terms and conditions of employment, or otherwise engages in protected concerted activity, that an exception to this rule may apply.
“Discrimination laws are for women and minorities.”  Every employee has a race, a gender, a national origin, a creed or religion (including atheism and agnosticism), and fits into other protected classes.  There is no such thing as “reverse” discrimination under the law.  Anyone can be discriminated against, and everyone has a right to bring a complaint of workplace discrimination under federal or state anti-discrimination laws. 
“We don’t have to do anything until we receive an ‘official’ complaint.”  In employment law, there is no such thing as an unofficial complaint from an employee.  Once a member of management gets an anonymous or “confidential” report, hears a rumor, or has reason to suspect that unlawful behavior is occurring in the workplace, the law requires a response.  Failure to do so can lead to legal liability.  The nature of the response depends on the nature of the reported or suspected conduct, of course, but doing nothing and waiting for an official complaint is never sufficient.
“Employees who are paid a salary don’t get overtime.”  We hear this a lot, and it’s just wrong. The Fair Labor Standards Act sets out very specific requirements that establish an exemption to overtime payments, including salary level and duties tests.  If an employee’s position does not meet those requirements, the employee is entitled to overtime for any hours over 40 per workweek. 
“Requests for reasonable accommodations must be in writing.”  Nope.  We often see this requirement in employee handbooks or leave policies.  The EEOC is clear in its Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act:
            Do requests for reasonable accommodation need to be in writing?      
            No.  Requests for reasonable accommodation do not need to be in writing.
Your employment attorney might want you to create a record of the request at some point, but the initial request may be oral and does not need to consist of any particular words like “reasonable accommodation.” Once a manager has a suspicion that a reasonable accommodation request may be necessary, the interactive process required by the ADA must begin.
These and other myths can get employers into lots of trouble.  If you or your managers believe in any of them, it may be time to talk to your employment attorney. Who ya gonna call?
Posted by Judy Langevin and Kate Bischoff

Monday, July 11, 2016

That is SO last week

Last week, former FOX News anchor Gretchen Carlson filed a sexual harassment suit against her boss, Roger Ailes.  Ms. Carlson’s complaint makes a number of allegations, including quid pro quo harassment, and was filed against Mr. Ailes individually, rather than against FOX. Since Ms. Carlson’s suit was filed, six more women have made similar allegations against Mr. Ailes. In a related article, Time discussed how courts grapple with what is and isn’t sexual harassment.  Robin Shea also wrote about “he said/she said” in sexual harassment cases and pointed out that cases involving disputed facts still make it to a jury.
In other developments:

Friday, July 8, 2016

Employer Wellness Programs: ADA, ACA, and HIPAA Compliance

Employer wellness programs are a subject of much interest to employers and receive considerable scrutiny from the EEOC and Department of Labor.  Employers want to lower their health care costs by improving the health of workers, and multiple vendors offer programs designed to do just that.  Employment law enforcement agencies want to make sure that wellness programs are non-discriminatory. Before implementing a wellness program, whether designed in-house or purchased from an outside source, employers need to make certain that the program complies with the requirements of the Americans with Disabilities Act (and its state law counterparts), the Affordable Care Act, and the Health Insurance Portability and Accountability Act. Some small employers may not be covered by all of these laws, but most have some compliance responsibilities.
Although each law has its own focus and unique requirements, there are important similarities. A practical approach to compliance suggests that every employer wellness program should be implemented with the following requirements in mind:
Employee Notice. Wellness programs that collect information about employees’ medical conditions must provide for notice describing what information will be collected, who will receive the information, and how it will be kept confidential.  The EEOC has recently published a sample notice that meets these requirements, along with a question and answer publication addressing how the notice should be used.  The HIPAA Privacy Rule requires employers with health plans – whether or not the health plan includes a wellness program – to provide a notice that describes the plan’s privacy practices and explains employees’ rights related to their personal health information. In some circumstances, one notice can meet the requirements of both laws.  Employers should understand and be prepared to meet all notice requirements before implementing a wellness program.  For programs already in place, compliance with notice requirements should be an ongoing concern.
Protection of Health Information.  Employee health and medical information collected as part of a wellness program must be kept confidential.  Generally, employers can only receive aggregated health information in a form that does not reveal individual health information. Whether collected as part of a wellness program, for health insurance purposes, or for other reasons, health information must be kept in a manner that protects it from disclosure.  These protections are required by all three of the federal laws noted above, comparable state laws, and the Genetic Information Non-discrimination Act (GINA).
Voluntary Participation.  Participation in an employer wellness program must always be voluntary for employees.  The ADA and the ACA both require this.  Incentives for participation may be offered, but their value may not exceed 30% of the total cost of employee-only health coverage, and must be available to all similarly situated employees.  Reasonable accommodations must be available so that participants with disabilities have an opportunity to earn the full reward offered by the program.
Health-related Purpose.  Employer wellness programs must be reasonably designed to promote health or prevent disease.  Reducing employer cost is not a sufficient purpose.  In all cases, the program may not place an undue burden on employees.
Helpful publications from the EEOC, the Department of Labor, and the Department of Health and Human Services provide additional explanation and guidance. The ADA, the ACA, HIPAA, and related state laws and regulations are detailed and complex.  The overview presented here, though only a starting point for compliance, describes the basic concepts that all employer wellness programs must respect and reflect.
Posted by Judy Langevin

Tuesday, July 5, 2016

That is SO last week

What if employers could read employees’ minds? Cybersecurity firm Stroz Friedberg has developed technology that some might say can do just that.  The software, Scout, reads employee emails to determine if an employee is stealing trade secrets, embezzling money, or about to “lose it.”  Scout and other tools try to identify threats to employers, and particularly to their electronic information, before those threats become reality.
In other developments: