Employment Law Bits

What you need to know about sick employees, time off, and paying them

Imagine that you sit down at your desk first thing in the morning and hear a most unwelcome sound - coughing. Healthy employees then start coming into your office, wild-eyed, whispering words like “outbreak” and “epidemic,” and demanding the day off. Cautiously, you call the sick employee in. He explains that he’s not contagious” or that he’s been very careful to keep any germs under control. He also reminds you that he’d love to go home, but he’s all out of PTO, and can’t afford to give up the pay. What are your options and what laws do you have to watch out for?

• The Family and Medical Leave Act (FMLA)
  Your employee is probably eligible for mandatory medical leave under the FMLA - eligible for up to three months of noncontinuous time off in any given year, continued insurance benefits during that period, and a guaranteed return to his position or a similar one once he’s been rehabilitated. Importantly, the FMLA requires employers to substitute vacation time or other paid time off for an employee’s requested medical leave (or at least to give employees the option of requesting that substitution,) but if all PTO is exhausted, then the FMLA does not require that you pay the sick employee.
  
  
• The Americans with Disabilities Act (ADA)
  Your employee might be able to seek protection under the ADA, especially if he is chronically ill. Protected employees generally must be provided reasonable accommodations for their particular disability, with certain exceptions. The most applicable exception for this situation is that the ADA will not force an employer to put any employee, (including the sick employee,) in harm’s way. You also don’t need to take on any undue hardship in accommodating a protected employee. So it’s usually a safe bet to send home an employee who is feverish or appears otherwise contagious, and to even require a doctor’s note explaining that that employee is okay to return to work.
  
  
• The Civil Rights Act (Title VII)
  Any time you single out a particular employee, even if you think you have a very justifiable business reason for doing so, you should make doubly sure that you’re adhering to a universal, nondiscriminatory employment practice or procedure. For example, it could be age discrimination to send home a forty-year-old feverish employee, while permitting a younger employee with the same ailment to stay for the rest of the day. It’s recommended that you have clear procedures in place, and that you strictly adhere to them unless you have a very good reason for a reasonable deviation.

You must also follow any policies and procedures in your employee handbook.

What does this all add up to? An employer is generally free to send an employee home if that employee is unable to work, even with reasonable accommodations or for general safety reasons. While you might not be required to pay employees who go home sick, you might consider accommodating them by letting them bring work home, or incentivizing them by letting them make up the hours at some later date. 

It is important to keep your priorities straight. While the rest of your employees probably won’t be able to pursue you in court for catching the flu from a coworker, (it would be very difficult to prove that,) you certainly don’t want a sick or unmotivated team. So long as you stay within the restrictions of the three laws discussed above, and your employee handbook, you should not hesitate to send sick employees home to protect them and everyone else.  

Employee rights: Are employer threats against the law?

According to the Massachusetts Civil Rights Act, your employer can’t threaten, intimidate, or coerce you if it interferes with one of your state or constitutional rights. But if you’re an at-will employee, you don’t have a right to your job.

For example, in a recent Massachusetts case, two at-will employees started dating. The woman lost her job and found work at a rival firm. When the worker’s employer found out the two had become engaged, the worker received an ultimatum: either the worker force his fiancée to quit her job, or resign within twenty-four hours. Otherwise he’d be fired.

In the event of his firing, the worker couldn’t maintain a clear right to his employment because he was an at-will employee. Nevertheless, the husband-to-be left his employment, and filed a lawsuit he was destined to lose.

That’s right, as long as your employer does not actually threaten your state or constitutional rights, then you may be subjected to similar ultimatums.

Fortunately, most employers realize that threatening at-will employees is a poor way to maintain morale, and many employee handbooks either protect employees from this by providing human resource avenues for internal complaints. It is important to be aware, however, that the state prohibits certain kinds of discrimination, so if you think that a threat to employment might really be about your race, religion, age, sexual orientation, nationality, gender, or another protected class, then you should consider contacting an employment law attorney. 

 

Photo credit: Microsoft 

 

Office politics: tips on surviving the election season

Its election time again, and nothing gets people more heated up than politics, and addressing politics in the office could be asking for trouble. But what are the rules of politics in the office?

Can your boss move you to the far side of the office just because your bumper sticker is different from hers? Could you find yourself left out of meetings, looked over for promotions, or even fired for rooting for the other team?

Well, the answer depends on your employee handbook and on the nature of your employment. Federal law says that you can sue for political discrimination just as you can sue for racial or gender discrimination. However, that political discrimination law only applies to public employees. While a few states also ban political discrimination, Massachusetts is not one of them.

When you’re at work you are at the mercy of your boss and subject to your company’s handbook. From the boss’s point of view, he has the right to run his business the way he sees fit, unless there’s a law against it. There’s simply no law against political discrimination in Massachusetts, and hostile work environment lawsuits have to be based on recognized discrimination.

So what can you do?

Try to stay out of it. There are only a few questions that your employer can force you to answer, and your political stance isn’t one of them. So you could relax, let the political talk happen, and keep quiet. If a co-worker tries to set you off by raising a particularly debatable issue, it might be a good idea to leave him hanging and move on with your work.

Don’t take it too seriously. Your employer probably doesn’t want to replace you, so don’t give her a reason to. If you can hold back the urge to spar with your co-workers, and just roll with the punches, and you’ll be that much less likely to have a problem.

Follow the employee handbook. Most handbooks ban any activity that stops work from getting done. So just try to keep from distracting your co-workers, and if they are causing a distraction, then it’s usually in your employer’s best interest to put an end to it. You should watch out for rules in your handbook that say you can’t express certain ideas. Again, these are usually legal, and it’s important to follow the rules your employer makes for you.  

 

Photo credit: Microsoft  

Office love contract policy: What does this mean to you?

Danny Zuko and Sandy Olsen of the box office musical hit, Grease, teach us that summer lovin’ may happen so fast. But if, unlike these high school sweethearts, you find yourself falling for an office co-worker, you may need to declare your love to your employer before you ever utter those three little words to your significant other.

Many offices have “love contract” policies aimed at limiting sexual harassment liability, should an interoffice romance go south. These policies require disclosure, where two co-workers are involved in a consensual romantic relationship. Love contracts may regulate acceptable displays of affection within the workplace. They also frequently require arbitration of any potential sexual harassment claims, and also eliminate the employer’s liability for any sexual harassment claims related to the relationship.

In addition to making office love birds squirm, love contracts may not be as effective as strict sexual harassment policies when it comes to limiting employer liability. After all, it may be difficult to determine when interoffice dating rises to the level of disclosure. Also, some couples may fear the consequences of disclosing their relationship – for example, same sex couples may worry that disclosure would lead to discrimination or retaliation.

The shortcomings of love contracts may be solved by alternative measures. While policies prohibiting inter-office relationships altogether are on the downslide, they are being replaced by clear guidelines in the employee handbook regarding conflicts of interest and sexual harassment claims that may arise from an office romance. These policies often draw stricter guidelines for relationships between managers and staff members, requiring managers to transfer positions to avoid allegations of differential treatment.

Well-drafted policies will protect the interests of employers and employees alike, limiting the employer’s liability exposure, and allowing summer lovin’ to span the seasons. 

 

Photo credit: Microsoft 

 

Employees should beware verbal commitments to extend maternity benefits under MMLA

The Massachusetts Maternity Leave Act (MMLA) guarantees eligible employees 8 weeks of unpaid leave for giving birth, adopting a child under the age of 18, or adopting a child under the age of 23, if the child is mentally or physically disabled. The bounds of this legislation and maternity rights in general were recently challenged in the case of Global NAPs v. Awiszus.

In Awiszus, an employee-plaintiff became pregnant and informed her supervisor of her intention to utilize her guaranteed 8 weeks of unpaid maternity leave. Her employer promised her an additional 3 weeks of unpaid leave if she required a Cesarean section. The employee required a Cesarean section and tried to return to work after taking 11 weeks of unpaid leave. The employer reneged on its promise and informed the employee that she no longer had a job. The employee sued and was awarded compensatory and punitive damages. 

The decision was appealed to the Supreme Judicial Court (SJC) where they overturned the lower court’s decision. Specifically, the SJC held that the employee "was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks." The SJC noted, however, that the employer's broken promise may give rise to a claim "for breach of contract." 

In light of the Awiszus decision, employees need to be sure that they understand their rights under the MMLA. Employees should not assume that verbal commitments from employers that claim to extend their rights under MMLA actually give the employee any addition rights beyond those that would exist in an ordinary contract. The SJC has clearly stated that employees who rely solely on the word of an employer that promises more maternity leave than the MMLA guarantees can only seek a breach of contract remedy.

 

Photo credit: Microsoft

What an employer risks when it accesses employee information on a social media website

In a recent case out of the United States District Court for the District of New Jersey, a jury found that the employer violated the Stored Communications Act and a parallel New Jersey state law, which makes “it an offense to intentionally access stored communications without authorization or in excess of authorization,” by accessing a password-protected online discussion group maintained by its employees through MySpace.

In the case, a group of employees created a password-protected discussion site, which included sexual remarks about management and customers, references to violence and illegal drug use, and confidential employer information. Although one of the employee members of the group voluntarily presented a manager with some of the discussions, another manager later asked the same employee for the group’s password so that he could review the various postings. Subsequently, the two employees who moderated the discussion group were fired. 

Based on testimony that the employee member gave management the password out of fear of retaliation, a jury concluded that the employer, through its managers, accessed the discussion group without authorization, in violation of the Stored Communications Act and parallel New Jersey state law. The jury ordered the employer to pay both compensatory and punitive damages.

The lessons of this New Jersey case are important for employers seeking to gain more information about potential hires through social media websites and for employers attempting to find discovery materials from adverse parties or non-party witnesses in the course of litigation. Not only might material obtained from social media sites be inadmissible in a future legal action, but it could actually create employer liability under the Stored Communications Act or similar state laws. 

Hiring Decisions

User profiles on social media sites are filled with information that could form the basis of discriminatory hiring decisions. Federal and state statutes prohibit employers from making employment decisions based on race, religion, sex, age, and national origin, just to name a few. This kind of information is readily available on most users’ profiles and could form the basis of a failure to hire action if an employer cannot provide a legitimate business reason for declining an applicant.

To circumvent any missteps, employers should establish a policy removing all decision makers from performing social media background checks and from examining the information background checks produce. As part of this policy, employers should also require that searches be performed in a consistent manner for every applicant in order to avoid disparate treatment liability.

Limit Use to Publicly Available Information

Employers must limit their searches to publicly available user information, and should not fraudulently gain access to users’ profiles – such as by posing as a long lost friend – or else risk violating the end-user licensing agreements of social media sites, the Stored Communications Act, and possibly common law privacy laws as well. Regardless of the reasons why an employer might want to access a current or former employee’s social media profile, it is absolutely necessary that an employer not attempt to do so through any type of fraud or misdeed.

Workplace Policy and Practice Implementation

Another issue for employers to undertake is their current employees’ use of social media sites. It is crucial that employers implement sound policies regarding social media and other Internet use in order to protect against liability. Employees should be cautioned that the company can and will monitor its e-mail and computer systems, and that employees should have no expectation of privacy when using company systems. With respect to blogging, employees should be told that they cannot attach company logos to their postings, or attribute to the company any views expressed in their writing, without prior permission. Employers should also have a policy detailing how the company will deal with lawful but inappropriate comments or material made publicly available by employees through social media sites.

Disciplining Employees

Employers must be especially careful when taking adverse employment actions based on information found on social media sites, including employee rants against their supervisors. Furthermore, in light of the “off-duty conduct” statutes prohibiting employers from taking action against employees for engaging in certain lawful activities outside of work that many states have enacted, employers should be cautious when considering taking adverse employment actions based on information it learns of through employees’ social media user profiles. 

 

Photo credit: Microsoft

Tattoos in the workplace

Since the Paleolithic era, tattoos and other body art have been a recognized aspect of human culture. Tattoos were the art form of choice among sailors, bikers, soldiers, and prison inmates for decades. Today, tattoos have made the transition to mainstream, showing up on the bodies of celebrities, athletes, television news anchors, architects. and office receptionists. 

According to a 2006 study by the Journal of American Academy of Dermatology, 25 percent of adults ages 18-50 in the US currently have a tattoo. In 2003, just 15 percent of US adults had a tattoo. Based on the number of new tattoo parlors and the number of people getting tattooed, this trend does not appear to be slowing any time soon. Body art is becoming easier and safer to apply and the percentage of employees showing up to work with a tattoo is increasing. Because of that, human resources has recently gotten involved in deciding what is appropriate to display on your skin in the workplace. 

Tattoos do not become an employment issue unless they are visible. Many workers realize this, and those with body art on their torsos, arms, ankles, or necks cover their exposed tattoos with work-appropriate clothing. But if - and how - you need to be covered up depends on the industry. 

For example, Walt Disney World, SeaWorld Orlando and Wal-Mart Stores Inc. all have written policies that apply to visible tattoos. Disney does not permit its employees to use bandages to cover their tattoos, but they can use opaque makeup. SeaWorld specifies "non-conservative, large or offensive tattoos" and that tattoos will be evaluated on a case-by-case basis. Wal-Mart specifies tattoos 'that are offensive or distractive are to be covered by clothing or other means." 

Law enforcement agencies are more restrictive about visible tattoos. A college graduate who dreamed of becoming a police officer was prohibited from getting a job in law enforcement with the New York State Police because of his tattoos. A 2006 department rule prevents hiring anyone who has a tattoo that is visible when an open-necked short-sleeved shirt is worn. 

At the other end of the spectrum, some companies are embracing visibly tattooed employees who they believe may help them project a hipper atmosphere, as well as attract younger workers who may not feel welcome in more conservative environments. Whole Foods Market, based in Austin, Texas, allows its individual store team leaders to write their own dress codes. For example, one store allows its employees to have tattoos, providing that the images are not offensive. 

David Barron, a labor and employment attorney and partner at Epstein, Becker, Green, Wickliff & Hall, P.C. in Houston, said that there is nothing wrong with limiting visible tattoos in the workplace, as long as the dress code is enforced consistently and equally across all employee groups. Barron advises HR managers to, "have a policy in writing and in practice that if there's an offensive tattoo, like a Confederate flag, for instance, then that has to be dealt with the same way an offensive picture, e-mail or poster would be dealt with. If it's offensive ... it should not be allowed in the company." He also recommends to companies drafting their dress-code policy that it must be justifiable to the Equal Employment Opportunity Commission (EEOC) in case a discrimination complaint is filed by either a prospective or current employee whose body art falls just outside the parameters of the company's dress code.

According to the EEOC, employers can impose dress codes and appearance policies so long as they do not discriminate or hinder a person's race, color, religion, age, national origin or gender. Peter Ronza, a spokesman for the Society for Human Resource Management, said that from an employer's view, some customers might be understanding of your body art, but there will be a lot that will not. Employers "can't afford to lose business because a guy has something [tattooed] crawling up his neck," he said. "Perception is reality, and people make decisions based on image." Ronza said that trends come and go and perceptions do change, citing the increasing number of high-powered corporate men with pierced ears. If more people with tattoos move into positions of responsibility, tattoos will become more accepted. 

Employers who can't find workers with the right skills are becoming more accepting of body art, according to global outplacement firm Challenger, Gary & Christmas. Additionally, those making the hiring decisions are getting younger and are not as stringent about holding on to traditional ideas about workplace appearance. 
The bottom line is that yes, you can have a tattoo and a great career, but you do need to be aware of the company's policies regarding body art. You need to judge whether the employer with whom you are interviewing or for whom you are currently working is going to accept your body art. If they will not, but it is someplace you want to work, you will need to make an effort to conceal your tattoos.

 

 Photo credit: Microsoft

Social media law: When the “at will” employee doctrine clashes with unfair labor practice

Employees are permitted to discuss the conditions of their employment with co-workers - in the break room, in the parking lot or on Facebook. That was the National Labor Relations Board's basic position involving an unfair labor practices case the agency brought against an employer.

The backstory: A worker, at home, on Facebook, posted derogatory comments about a supervisor. Co-workers read the post, liked it, and added barbs. The employer fired the original author for violating a company policy that barred employees from depicting the company "in any way" on social media. But the labor relations board said that the policy was too broad and that it infringed on the rights of workers - union and non-union - to engage in "protected concerted activities."

In settling the case, the employer agreed to narrow its policy so it did not restrict employees from discussing wages, hours, and working conditions with co-workers and others while not at work. Employment law attorney Shelly Freeman recently warned people at the Heartland Labor and Employment Law Conference in Overland Park, Kansas, that case law and regulatory opinions are building more slowly than the social media use they are trying to control.

In most workplaces, employees are “at will." Therefore, texting or tweeting workers can be fired simply because the boss does not think a post reflects well on the company or the individual.

Lawyers and government agencies will successfully object if the firings violate laws governing discrimination, harassment, or other legal protections, such as the "concerted activities" cited in the above Facebook case.

But if and until the law catches up with social media use, any worker concerned with job security, and any employer concerned with protecting an image online, should make sure they're on the same page. Organizations need a social media policy that is specific and updated, and employees should know exactly what it says.

 

Photo credit: Microsoft

Investigating employee theft – how to protect your company from liability

Investigating employees for potential theft might seem like a cut and dry task, however, following the wrong procedures may land an employer in hot water. A few simple rules regarding this protocol may prove to cool an employer’s potential liability. 

To begin, during the investigation it is wise to follow any written protocol that your company has regarding employee theft. Following the letter of your own law will make your company look consistent in the eyes of a future jury. 

Further, it is important to assign two investigators to the task. One must not know the accused in order to prevent any allegations of bias on behalf of your company. 

Finally, during the investigation, inquire broadly about the circumstances of any potential theft, do not just ask the accuser. 

When trying to catch your employee-thief red-handed, an employer does not have unlimited choices. For example, placing a baby monitor in the break room is against the anti-wire tapping statute. Digging through an employee’s belongings can lead to an invasion of privacy suit. Not allowing an employee to leave an interrogation under their own free will may lead to a claim of false imprisonment. 

Perhaps most significantly, it is important for your company to be proactive in order to protect itself. You may have employees sign waivers to relinquish their privacy rights to any items they bring to the work place. You may also have employees consent to being on surveillance while at work. It is equally important to let the employees know that violating any company rules, (such as those regarding protection of company assets,) can lead to their termination. 

Finally, during the termination itself, your company should link the termination to a violation of the company’s policies, and not to an impending crime. Using language like “lack of trust” as opposed to “thief” will make it harder for the accused employee to bring a defamation suit in the future. If it is your first interview with the accused, do not discuss an actual termination, set a second interview time, and if the employee skips out, they can be terminated as having abandoned their job.   

 

Photo credit: Microsoft

'Tis the season for online shopping (at work)

With the benefits come the burdens: requisite technological access necessarily increases employee productivity. Alternatively, however; it can decrease productivity, along with bogging down workplace networks and leaving those networks vulnerable to attack. This time of year, many employees bundle their productivity - both the work and shopping variety. 

So, how should employers handle employees who shop online at work? 

Employer responses range from terminating an employee, blocking internet shopping sites entirely, monitoring employee internet usage, or simply trusting that their employees are working hard. 
No matter what response an employer chooses, they must choose wisely. Considerations such as employee morale, contractual terms of employment, and network/internet access agreements, for example, should be at the top of the list. 

Ultimately, if an employee signs an agreement preventing or restricting personal use of company equipment or the use of the internet, an employer may legally enforce the provisions of that agreement, likely protecting them from wrongful termination lawsuits. Conversely, however; for the benefit of morale, no employer wants to be a Scrooge. Clearly articulating expectations and policies to employees at this time of the year sends a clear message of expected and accepted workplace conduct.

 

Photo credit: Microsoft