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