NLRB signs off on employer social media policy as legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

Consider, then, Landry’s Inc., decided last week by the NLRB, as newsworthy.

In that case, the NLRB considered the following social media policy:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

The Board concluded that the policy was lawful:

Employees reading the Respondent’s social media policy could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the Respondent or each other regarding job-related matters.… There is no restriction in the social media policy against posting “personnel” information or “payroll information,” or “wage-related information”; and obviously, posting information that in common parlance is generally understood to be personal such as, for example, matters regarding social relationships and similar private matters, could result not only in morale problems but could also constitute “harassment” to which the Respondent’s social media policy refers. It is readily apparent that such postings would likely create enmity among employees in the workplace which could, in turn, adversely affect the Respondent’s business.

Why is this newsworthy? Because, for years, the NLRB has urged for an expansive reading of employer policies, suggesting that a hypothetical parade-of-horribles that could lead to union-related, or other protected concerted, activity renders any facially neutral workplace policy unlawful. In Landry’s, the Board is adopting (at least in this case) a more reasonable, real-world reading of a social media policy to conclude that because no employee could reasonably read the policy, in context, to unreasonably infringe on employees’ rights.

This case provides a good illustration of the fine distinctions the NLRB is drawing between lawful and unlawful social media policies, and provides a good reminder of the need for all employers to routinely review your own social media and other workplace policies for compliance.

When English-only policies and federal labor law collide

It’s been nearly 8(!) years since I first wrote about the legality of English-only workplace rules. If you scan the archives, all of my coverage of this issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII.

Now the NLRB is attempting to interject itself into this debate.

Last month, in Valley Health System [pdf], an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe [the] English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for your business?

1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land. However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.

2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.

NLRB judge’s analysis of T-Mobile’s handbook is of note for the provisions she concluded to be lawful

Yesterday, I examined, in detail, the NLRB’s General Counsel’s memo on employer policies. Today, I’m going to examine a recent decision by an NLRB judge putting those principles to use.

The opinion [pdf] consolidated seven different unfair labor practice complaints against T-Mobile, challenging 17 different provisions in T-Mobile’s employee handbook, Restrictive Covenant and Confidentiality Agreement, and Code of Business Conduct.

More interesting than the work rules that the ALJ concluded violated employees’ section 7 rights are the work rules that the ALJ concluded did not.

Recording in the Workplace

Recall, yesterday, the NLRB-approved clause in the Wendy’s employee handbook, which provided employees a roadmap to their local NLRB regional office. In the T-Mobile case, the ALJ confirmed as legal the same type of policy—a workplace recording policy—without the NLRB boosterism.

Here’s the policy the ALJ approved in T-Mobile:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recording of work-related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

Apart from customer calls that are recorded for quality purposes, do not tape or otherwise make sound recordings of work-related or workplace discussions without the permission of all participants and Human Resources or the approval of the Legal Department. Failure to request and receive such permission violates Company policy and may violate the law.

Because of the risk presented by employee’s surreptitiously recording the workplace, the ALJ concluded that this policy did not impinge in employees’ section 7 rights:

The policy explicitly sets forth valid, nondiscriminatory, rationales for its existence. Concerns for safety, maintenance of a harassment free work environment, protection of trade secrets, and a workplace free from unnecessary distractions are all valid reasons for promulgating the rule. The policy expresses a rationale narrowly tailored to address these concerns; and there is no evidence of it being applied in a discriminatory manner.  It is not unreasonable for the Employer to fear that a workplace with surreptitiously recorded conversations would foster hostility, suspicions, low morale, and impede free and open discussion among members of its work force.  It would certainly hinder the open lines of communication between supervisors and employees because of fears that discussions could be secretly recorded for use against them at a later date.

Workplace Conduct

The ALJ also concluded that the following “Workplace Conduct” Policy was lawful:

Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

Why?

Within the context of the policy, all employees would understand a prohibition against fighting to mean a physical altercation and by any standard, including the Act, fighting would be inappropriate in the workplace. I do not believe that the rule can reasonably be read as pertaining to Section 7 activity. In the words of the Board, “To ascribe such a meaning to these words is, quite simply, farfetched. Employees reasonably would believe that this rule was intended to reach serious misconduct, not conduct protected by the Act.”

Conclusion

Reading this decision in conjunction with the NLRB General Counsel’s Report confirms what I have believed for a long time—the NLRB is splitting hairs in drawing fine distinctions between employment policies that violate employees’ section 7 rights and those that don’t. Regardless of whether the Board and its judges are splitting hairs, you need to have these issues on your corporate radar. The T-Mobile issues got to the Board through efforts by the Communications Workers of America, which has been pushing for years for T-Mobile’s employees to join its union.

Don’t assume that a) your policies are good enough, or b) a labor union will not target your company. Unions are using the current pro-employee regulatory environment to ramp up their organizing efforts. If your company becomes a target, a union will use overly broad work rules as an inroad to the NLRB and to your employees. Act now to make sure your handbook and other policies pass NLRB muster, before someone (or something) else makes that decision for you.

Analysis of the NLRB’s guidance on employer rules (or, meet the new boss … same as the old boss)

It’s been nearly two years since then-acting NLRB General Counsel Lafe Solomon issued his office’s guidance on social media policies under Section 7 of the NLRA. At the time, I called the Board’s position “a bungled mess.”

Last Wednesday, current NLRB General Counsel Richard Griffin issued his 30-page missive on employer policies under Section 7 of the NLRA [pdf]. I’m sad (but not surprised) to report that not much has changed in the NLRB’s misguided approach to facially neutral employment policies. The NLRB continues to take facially neutral policies, spin a parade of non-existent anti-union horribles, and conclude that because some hypothetical employee could under the exact proper set of circumstances, that the policy could restrict an employee’s right to communicate with a labor union or complain about work, said policy violates all employees’ section 7 rights.

Notably, the Board seems to be splitting hairs between what is a lawful policy and what is an unlawful policy. Consider the following (non)distinctions the NLRB is drawing:

 

Confidentiality

Unlawful: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”

– vs –

Lawful: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

 

Conduct Towards the Company and Supervisors

Unlawful: “[B]e respectful to the company, other employees, customers, partners, and competitors.”

– vs –

Lawful: “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company,” and “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.”

 

Conduct Towards Fellow Employees

Unlawful: “Do not send unwanted, offensive, or inappropriate emails.”

– vs –

Lawful: “No harassment,” and no “use of racial slurs, derogatory comments, or insults.”

 

Interaction with Third Parties

Unlawful: “Associates are not authorized to answer questions from the news media…. When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”

– vs –

Lawful: “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry…. Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.’”

 

Use of Company Logos, Copyrights, and Trademarks

Unlawful: “Company logos and trademarks may not be used without written consent.”

– vs –

Lawful: “[I]t is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”

 

Restricting Photography and Recording

Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

– vs –

Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.”

 

Restricting Employees from Leaving Work

Unlawful: “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.

– vs –

Lawful: “Entering or leaving Company property without permission may result in discharge.”

 

Conflict-of-Interest

Unlawful: “Employees may not engage in any action that is not in the best interest of [the Employer].”

– vs –

Lawful: Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from ‘activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.”

How does the NLRB spell splitting hairs? Wow, the Board’s GC is drawing some very narrow distinctions, based on little more than the use of few different words.

 

One More Thing

If you’ve seen any of the recent Marvel movies, you know to stick around though the credits, because there’s always an extra scene hinting at what will happen next in movies to come. Is General Counsel Griffin is taking his cue from Marvel? If you stick around to the end of his report, you’ll find revised policies that the NLRB approved as part of a settlement with Wendy’s. The devil, however, is in the details. Consider this policy on Phones, Cameras, and Recording Devices, given the NLRB’s seal of approval:

Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment /discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

How do you feel about policies that provide employees with a roadmap to your local NLRB regional office? Guess what? I’m not a huge fan either.

Regardless, this report confirms that employee handbooks and other workplace policies will continue to remain in the middle of the NLRB’s radar for the foreseeable future. If you haven’t recently updated your employee handbook and other policies, now would be a good time to have your friendly neighborhood employment lawyer do so.

Come back tomorrow for a real-world example of how NLRB judges are applying these rules.

BREAKING: NLRB Office of General Counsel issues report on employer rules

Today, the NLRB Office of General Counsel issued its report on employer handbook rules under section 7 of the NLRA. It’s a meaty 30-page report that will take some time to digest. I’ll have my thoughts and analysis early next week.

In the meantime, you can download the report here:  http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.

Love has no boundaries—except at work

Some of you may recall that I serve on the editorial advisory board of Workforce Magazine. I also pen a monthly column for the mag. Since we are approaching Valentine’s Day, I’m sharing this month’s timely column. Enjoy.

	Look inside >
Love Has No Boundaries — Except at Work

Five for ’15: The legal issues that need to be on your radar

Personally, December is my favorite time of the year. I love the joy and togetherness of the holiday season. Professionally, however, I love January. After we’ve decked the halls and sung the last bars of Auld Lang Syne, companies get back to work, including the work of managing their most important asset—their employees.

Now that business is back in session, employers need to figure out the issues that will keep them up at night over the next 12 months. And that’s where I come in. My phone will start to ring as employers realize that they haven’t updated their handbook since the (first) Bush administration, of haven’t conducted harassment training since before Anita Hill made sexual harassment a household phrase.

What are the hot-button employment law issues that will keep your HR department busy over the next year? Let me offer five suggestions.

     1. Cyber-Security. No business is safe from the risk of a cyber-breach. The question of whether your business will suffer a breach is one of “when” and not “if.” Those looking to exploit your business and its information will attack your weakest point—your employees. A misplaced iPhone or laptop is a hacker’s key to your cyber-kingdom. Do your employees know what to do if their device is lost or stolen? Do they know to avoid unsecure Wi-Fi? Do they understand the risks associated with a loss of trade secrets or other confidential information? Are key employees locked down with confidentiality and non-competition agreements? Unless you can answer “yes” to each of these questions, you are taking a huge risk with your data. Be proactive in 2015 with your cyber-security by investing in prophylaxes to limit the risk of a breach. Creating a culture of security in your business will be the best money your company spends this year.

     2. Vaping. “Vape” was the Oxford Dictionary’s word of the year for 2014. For the uninitiated, vaping is the practice of using e-cigarettes to deliver tobacco through a heating element to vaporize a liquid solution that includes a concentration of nicotine. Because these vaporizing devices do not contain tobacco, most state workplace smoking laws do not regulate them. Thus, it is up to individual employers to determine the pros and cons of e-cigarettes for their workplaces and to adopt a policy that reflects that position. Yet, laws that prohibit smoking in the workplace are a floor, not a ceiling. You are free to ban these devices in your workplace, and should consider doing so, as the associated health risks are undetermined.

     3. Same-sex relationships. Congress has been slow to amend Title VII to expressly prohibit LGBT discrimination. With the Republicans now controlling both houses of Congress, this trend is unlikely to change any time soon. It is offensive that, in 2015, it is still legal to discriminate against any class of people. Employers should not wait for Title VII expressly to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII, on its face, still permits discrimination against some.

     4. Overly active federal agencies. Social media. Wellness programs. Criminal background checks. These are just a few of the issues that the feds have on their radar. President Obama’s labor and employment legislative agenda may have been a big dud, but that has not stopped the EEOC, the NLRB, and the DOL from picking up the torch and running with it. Employers, be afraid.

     5. Pregnancy leave rights. In 2015, the U.S. Supreme Court will decide Young v. United Parcel Service, which will address the issue of whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with medical limitations to provide similar accommodations to pregnant employees who are similar in their (in)ability to work. UPS, which had previously refused to provide these accommodations to pregnant workers, has already amended its policies to make light duty available to pregnant employees with lifting or other restrictions to the same extent such work is available to employees with on-the-job injuries. This policy change is consistent with EEOC guidance published on this issue last summer. Stay tuned, as this issue promises to help shape the national debate over work/life balance and working parents.

Happy 2015! Cheers to a litigation free year.

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This post originally appeared in the January 2015 issue of Workforce.

Even Santa needs an employee handbook

The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Pole’s buildings preparing gifts to load onto Santa’s sleight for his Yuletide trip around the globe. Pop culture, such as Rudolph the Red-Nosed Reindeer and Elf, portrays Santa’s workshop as a happy, jolly place, where the elves gleefully craft toys all hours of the day and night, with not even a whisper of discontent.

Someone (or, more accurately, some elf), has squealed.

The North Pole Employee Handbook: A Guide to Policies, Rules, Regulations and Daily Operations for the Worker at North Pole Industries was allegedly found in “the vast confines of a Newark warehouse used to store elf clothing for Christmas displays.” It appears that all is not candy and carols at the North Pole.

For example:

• Employees are called “cogs.”
• Humans are not discriminated against in employment, as long as they are nimble, quick, and speak in high-pitched voices.
• Cogs receive unpaid holidays for most of January, all of February – September, and half of October. With no other industry to speak of in the North Pole, however, other income-earning opportunities must be scarce.
• Human employees must wear fake elf ears “as a gesture of solidarity with” their “fellow employees.”
• Cogs must sign a non-competition agreement as a condition of employment. (I guess that job at Mattel is going to have to wait.)
• Discipline can include weeks of work without pay.
• Cogs receive the generous allotment of one five minute break and one 11.5 minute lunch break for every 11 hours worked.

Other topics covered include the dental plan (administered by Herbie), how to participate in reindeer games, and what the 12 days of Christmas mean to you. Needless to say, Santa does not appear to be one to be trifled with. Then again, if he knows when all of the world’s kids have been naughty or nice, it stands to reason that he keeps a pretty tight grip on his employees. And, if you think Santa is a pain, the handbook makes it clear that the HR Director, Mrs. Claus, goes without physical attention from Santa during peak production times and can get a tad prickly as a result.

If you’re looking for a good holiday gift for that special HR person in your life, I strongly recommend The North Pole Employee Handbook.

Also, don’t forget after January 1 to take a look at your own employee handbook, to determine if any policies need to be updated or added.

Let’s all strive to be a little more flexible

Two weeks ago I had no choice but to take my 8-year-old daughter to a hearing. My wife was out of town for work, and Norah was home from school sick with a fever. So, we packed up her iPod and a Harry Potter book, and we drove down to the Industrial Commission. We had a great morning. We stopped for breakfast at Starbucks and talked—about school, her friends, and life in general. In the back of my mind, however, I was a bit on edge, as I had no idea how the hearing officer would react to an unplanned bring-your-daughter-to-work day.

As it turns out, my edge was for naught. The hearing officer could not have been cooler. She welcomed Norah to the hearing room with open arms, and complimented her on our way out on how well she behaved (as if there was any doubt). In fact, she was so cool that she noted “Miss Hyman” as having made an appearance for the Employer in her written opinion.

Compare my story to that of an attorney, who, having given birth, asked a Department of Justice Immigration Judge to continue a hearing. Amazingly, that judge refused. Or, consider this example from my past of a lawyer who refused to agree to a continuance while my son was in the hospital.

What’s the lesson here? Career and life don’t always get along. Yet, the meaning of “working time” in this country is changing. Technology has made it much easier for employees to work anywhere at any time. The law, however, is traditionally slow to react. Last month, the 7th Circuit held that regular attendance at work is an essential function of most jobs (even in the face of the defendant-employer’s “Work at Home” policy), and, next year, the 6th Circuit will decide the issue of telecommuting as an ADA reasonable accommodation.

Just because the law is slow to react to this paradigm shift in the definition of “work” does not mean that you should avoid flexible work policies for your employees. Employers that can adapt to the shifting needs of their employees, and their ability to work outside the four walls of the office and the traditional 9-to-5 hours, will have a leg up on attracting and retaining talent. Isn’t that the best reason to be flexible with your workers?

Oh, and in case you’re curious, Norah’s legal career is off to a rousing start. She’s 1-0. She’ll have a tough when she grows up between lawyer or rock star.

Don’t forget the photo authorizations for your holiday party

Are you having a holiday party for your company? Are you planning on sharing the cheer by posting photos of said party on your corporate Facebook page or other social media? If so, don’t forget to have your employees sign authorizations before you post those photos.

Like many states, Ohio has a statute that protects an individual’s name, voice, signature, photograph, image, or likeness. This “right of publicity” prohibits one from using another’s persona for a commercial purpose without written consent.

It may be sufficient to have statement in your employee handbook advising employees that, from time to time, the company may post pictures of employees on the company’s website, Facebook page, etc., and employees who wish to opt out should advise HR in writing. The overly cautious employer, though, will want this to be an opt-in process, with employees providing specific written consent for the use of their likeness in photos.

Regardless, employers should do something to ensure that they are not infringing on employees’ right of publicity with photos of employer-sponsored events. Otherwise, your holiday lump of coal might come in the form of a lawsuit by a shy, and overly litigious, employee.

Add “no loitering” to the list of potentially unlawful work rules, per the #NLRB

It’s no secret that the NLRB is waging a war against facially neutral employment policies. You can add “no loitering” rules to its list of victims.

In EYM King of Michigan, an NLRB administrative law judge considered the following policy, implemented by a Burger King franchise:

Loitering and soliciting either inside or outside on Company premises is strictly prohibited. You should arrive some minutes before your entry hour and leave the as soon as you finish your shift. Employees are not authorized to remain in the restaurant after work. If you are not working or eating in a store, your conduct may be construed as loitering. If you are off-duty and return to the store to speak with employees who are working, your conduct may be considered loitering. Former employees who return to the store to speak with employees who are working are loitering. This policy is designed to prevent the disruption of company business due to unnecessary interaction with non-working employees or non-employees. Employees who violate this policy may be subject to discipline, up to and including termination.

The ALJ concluded that this policy unlawfully restricted employees’ rights to engage in protected concerted activity because it impeded employees’ ability to gather, and, by implication, discuss wages, hours, and other terms and conditions of employment. The judge also was not persuaded by the employer’s professed “safety” concerns for its employees:

Respondent’s justification for its rules is that its restaurants are located in high-crime areas.  To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights….

Respondent’s professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious. The company has made no showing as to how this rule enhances safety. In this regard, it does not prohibit customers from eating food purchased at its restaurants while sitting in their cars in the restaurant parking lot. Moreover, people are just as likely to be the victims of violent crime at Respondent’s drive thru windows as anywhere else on the exterior of the restaurant.

No employment policy that could potentially impact employees’ ability to discuss work is safe from the NLRB’s scrutiny. If you have not had a labor and employment lawyer review your handbook and other policies, you are doing your business a severe disservice, and taking a huge risk, in this hyperactive regulatory environment.

Should you limit bathroom breaks for employees?

Teamsters local 743 has filed a complaint with the National Labor Relations Board claiming that an Illinois faucet manufacture unfairly disciplined 19 workers for “excessive use” of washrooms. What’s excessive, according to the company? Sixty minutes over the last 10 days, or a mere six minutes per day. 

The company reports that it had to limit bathroom use because employees were spending too much potty time outside their scheduled breaks. According to CNN, the company claims employees lost 120 hours of lost production per month as a result. The Daily Mail reports that the company supposes that employees are spending the time texting instead of taking care of bathroom business. According to the employees’ union rep:

The company has spreadsheets on every union employee on how long they were in the bathroom. There have been meetings with workers and human resources where the workers had to explain what they were doing in the bathroom.

Take note that this issue was brought to a head by a labor union. Do you know how to keep your workplace union-free? 

DON’T IMPLEMENT RULES LIMITING BATHROOM TIME. 

Employees don’t organize over issues like wage or benefits. They organize because they don’t feel like they have a voice with management. Maintain channels of communication. Have an open door through which employees can pass to discuss concerns and air grievances. And, for Pete’s sake, don’t implement Orwellian work rules. What are you supposed to do if an employee is spending too much time in the bathroom texting? Discipline that employee for slacking off. Trust me, your other employees will get the message without you having to limit all of their toilet time to six minutes per day. 

For more on workplace bathroom breaks, including how to implement reasonable bathroom rules in your workplace, read When you gotta go, you gotta go: The right to workplace bathroom breaks.

Two cups, one termination

Cause for a termination is often in the eye of beholder. Or, to put it another way, what might seem trivial to one can be a big enough deal to another for a termination.

Case in point? Stine v. Central Ohio Gaming Ventures (Ohio Ct. App. 5/20/14) [pdf], in which the court concluded that an employee caught stealing two inexpensive plastic cups was fired for cause, and therefore not entitled to collect unemployment. 

Stan Stine worked for one of Ohio’s new casinos. During his employee orientation, he was given an inexpensive plastic drinking cup (with lid and straw!), bearing the casino’s logo. When his cup broke, he asked an employee in the HR department for a replacement. After HR advised Stine that it’s policy is one cup per new hire, he took matters into his own hands. He removed two cups from the training room and stashed them in his locker. Security discovered the theft, and the casino terminated him following an investigation.

The casino, and the court, relied on the following policy to support the termination:

Theft (unauthorized removal) or misappropriation (unauthorized storage, transfer, or utilization) of the property of guests, Team Members or Hollywood Casino Columbus.… Any unauthorized property found in a Team Member’s possession will be considered theft and grounds for immediate separation.

You might think that the taking of few plastic cups is trivial. To this employer, a casino, I can assure you it is not. To a casino, a no-theft rule is its lifeblood. This employer cannot set a precedent that it is acceptable to take anything without permission, no matter how small. If a casino is going to overlook this offense, how can it enforce a no-theft rule when a dealer pockets a $1 chip? What work rules do you have that are specific or unique to your business? Think about it next time you are considering firing someone. What’s trivial to someone else might be life-or-death to your business. 

How flexible are our modern workplaces?

As I type, I’m 30,000 feet above Pennsylvania, flying to see my dad, who’s waiting in the hospital for surgery. As you read, i’m probably sitting somewhere on the campus of the Hosptial of the University of Pennsylvania. I share these facts not for well wishes, but because today’s post happens to be about workplace flexibility. 

Last week the Families and Work Institute and the Society for Human Resource Management published the results of their National Study of Employers, which revealed three interesting facts about the role of flexibility in the modern workplace.

1. The smaller the employer, the greater the flexibility. Employers with between 50 and 99 employees are more likely than employers with 1,000 or more employees to offer the following work-flex benefits:

• Change starting and quitting times within an accepted range of hours (33% versus 20%)
• Work regular paid hours at home occasionally (11% versus 4%)
• Control over when to take breaks (66% versus 52%)
• Return to work gradually after childbirth or adoption (53% versus 37%)
• Take time off during the workday to attend to important family or personal needs without loss of pay (52% versus 36%)

2. Telecommuting is on the rise. More employers are providing occasional telecommuting (67%) for at least some employees than in 2008 (50%).

3. Flexibility, child care, and elder care lead to increased employee retention. Thirty-five percent of employers cite “retention” as the key reason for providing flexibility, along with child and elder care assistance. 

Two weeks ago, I wrote on telecommuting as a reasonable accommodation under the ADA. The more I think about the impact of mobile technology on the workplace, the more I am convinced that the 6th Circuit got it right. There is no excuse for an employer to be inflexible with those of its employees for whom it is feasible to work remotely. If an employee is performing, then it doesn’t matter where the employee performs. If the employee isn’t performing, treat it as an indictment of that employee, not an indictment on telecommuting as a practice or standard. 

Hypothetical violations doom employer confidentiality policy

A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy. Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere.

At issue in Flex Frac Logistics v. NLRB was the following workplace confidentiality policy:

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to … our financial information …; [and] personnel information and documents…. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

The appellate court affirmed the NLRB’s decision that this policy infringed on the rights of employees to engage in protected concerted activity:

A “workplace rule that forb[ids] the discussion of confidential wage information between employees … patently violate[s] section 8(a)(1).” … As the NLRB noted, the list of confidential information encompasses “financial information, including costs[, which] necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The confidentiality clause gives no indication that some personnel information, such as wages, is not included within its scope.

Particularly troubling is the NLRB’s summary rejection of the employer’s argument that the policy should survive because it had never interpreted or applied it to restrict employees’ Section 7 rights, such as the right to discuss wages. As the court noted, “the actual practice of employees is not determinative,” as long as one could reasonably interpret the policy as a restriction on Section 7 rights.

In other words, employers need to safeguard their policies against what-ifs and hypotheticals, a daunting task. In a passing notation, the court does note that Flex Frac’s policy failed, in part, because it did not expressly exclude “personnel information, such as wages.” Going forward, employers should consider including this carve-out in their confidentiality policies to help avoid NLRB scrutiny.

Eliminating Mad-Men workplace policies #SOTU

During Tuesday’s State of the Union Address, President Obama handed down the following edict:

It’s time to do away with workplace policies that belong in a “Mad Men” episode.

He’s correct. His comment was directed at a commitment to expanding equal-wage and family-leave laws. However, this statement is as much about workplace culture as it is about workplace laws. After all, the FMLA is a floor, not a ceiling.

Coincidentally, the morning after the SOTU, I came across the following post, written by Mary Wright at Blogging4Jobs.com: Build a Culture of Workplace Flexibility. In that post, Mary makes the argument for creating a culture of workplace flexibility, built around these seven tent-poles:

1. Choices in managing time
2. Flex time and flex place
3. Reduced time
4. Time off
5. Flex careers
6. Dealing with overwork
7. Supervisor and coworker support

I’ve been thinking a lot about this issue this week, as my wife has been out of town on a business trip, making me a single dad, solely responsible to get kids to and from school and to attend to two snow days. The practice of law isn’t always conducive to parenthood. Yet, this week I’ve been in the office less than I would otherwise like to be, taking advantage of remote network access from home and the comforts of shifting some work until after the kids are asleep. It’s not easy, and it’s not ideal, but for me, it works, and I appreciate the flexibility. Do the same for your workers, if and when you can. Trust me, they will they appreciate it. Even better, you will keep quality workers engaged and employed, which is a win-win for everyone.

The workplace ethics of class-segregated bathrooms—the results

Two weeks ago I posed this question: Is it acceptable for a company to prohibit warehouse workers from using office bathrooms?

The results? By a margin of two to one, my readers expressed that it is not acceptable for a business to segregate its restrooms by class of workers.

This issue is not one of management rights versus worker rights. Or one of employer versus employee. Instead, this issue is about setting the correct tone for your workplace to send the right message to your employees. Do you want to be workplace of harmony and teamwork, or secularism and division? Do you want everyone to work towards a common goal, or fight amongst themselves based on their perceived station?

Yes, there are certain situations in which separate restrooms will be necessary (safety and cleanliness come to mind). But, telling certain employees, for no good reason, that certain bathrooms are off limits plants seeds of disharmony and segregation that will not help your business achieve its best. Openness and inclusion breed teamwork and dedication. You want your employees to perceive management as part of the team, not as feudal overlords. your policies should reflect this goal.

As for me, I’m off to use my golden key to use our executive washroom. Enjoy your day.

Why I don't like most non-disparagement clauses (and 3 tips to fix them)

Will Blythe recently penned an op-ed in the New York Times entitled, Fired? Speak No Evil. In this piece, Mr. Blythe chronicled his recent job loss, and why he refused to sign a separation agreement that included a non-disparagement clause.

Like Mr. Blythe, I don’t like most non-disparagement clauses. Theses causes are exceedingly common in separation and settlement agreements. But, familiarity does not breed sensibility. These clauses are hard to control, hard to enforce, and encourage more litigation, not less.

Yet, most employers will insist on including these clauses in their agreements to hedge against the dead speaking ill of them. For your consideration, here are a three drafting points for your next non-disparagement clause:

     1. Hard to control? Who does a non-disparagement clause bind? If it just says, “Employer,” how does the agreement define “employer?” Even if you’re a small organization, can you control what Joe-coworker says about your departing employee, and do you want to have to advise every employee in your organization about potential non-disparagement obligations, and control what they say? I have two suggestions to help ease the pain of this issue. First, define who, specifically, the clause covers; don’t leave it open-ended to bind your entire organization. Second, at least as job references are concerned, put some controls in place. Define who is to be contacted, and what that contact-person is permitted to say. Even consider a predetermined script to limit any potential violations.

     2. Hard to enforce? Most non-disparagement clauses say something like, “Employer [and Employer] agree not to disparage, or make any negative comments about, the other,” which simply begs the question, what do “disparage” and “negative comments” mean? If you are serious about including this clause, define the terms. For example, your state will have a well-developed body of case law discussing and defining the meaning of defamation. This case law is a great starting point (and, maybe, end point) for this definition.

     3. Encouraging litigation? If a separation leaves bad blood between the parties, a non-disparagement clause is an easy way for a spiteful ex-employee or ex-employer to drag the other back into court. Separation and settlement agreements are supposed to end the parties’ relationship and cease litigation, not act as a breeding ground for more. To cure this ill, tie a loser-pays clause to this provision. If a losing parties has to pay the other’s attorneys’ fees, one will think long and hard before exercising the right to sue for a breach of a non-disparagement clause.

Non-disparagement clauses are ripe for sloppy and vague drafting, which can result in parties ending up where they wanted to avoid—the courthouse. Following these three tips will help you shore up your language to create non-disparagement clauses that you can actually rely upon, and, if necessary, enforce.

Tread lightly if banning workplace gossip, says NLRB Judge

I recently came across a blog post that answered the question of how to deal with workplace gossip. One solution you might want to avoid is a policy banning it outright, at least according to the recent opinion of an NLRB Administrative Law Judge in Laurus Technical Institute [pdf].

Laurus distributed a no-gossip policy to its employees. Among other non-work-related prohibitions, the policy prohibited employees from “talking about a person’s professional life without his/her supervisor present.” It also bans any discussion of one’s personal life outside of one’s presence, any disparaging comments or criticism of another, or the creating, sharing, or repeating of rumors about another or of information that could damage another’s reputation or credibility.

The ALJ concluded that this policy was vague and overly-broad, and therefore illegal under Section 7 of the National Labor Relations Act.

It narrowly prohibits virtually all communications about anyone, including the company or its managers. In fact, read literally, this rule would preclude both negative and positive comments about a person’s personal or professional life unless that person and/or his/her supervisor are present. Such an overly broad, vague rule or policy on its face chills the exercise of Section 7 activity, and violates Section 8(a)(1).

It’s been argued that the private workplace is where free speech goes to die. And it’s true that employees in the private sector do not have free-speech rights. Yet, the NLRB, through its activist interpretation of Section 7’s protected concerted activity rights are trying to change the rules. 

The no-gossip rule in Laurus Technical Institute was innocuous. On its face, it was attempting to cure the corruption, distraction, and moral-sapping caused by gossip among employees. No employee could reasonably read that policy to affect discussions about wages, hours, and other terms and condition of employment. Yet, the ALJ still used Section 7’s reach to invalidate the rule.

Until the NLRB reaches a more reasonable stance on this issue, employers need to tread carefully, and consult with counsel, about any policy that reaches workplace speech. In the meantime, if gossip among employees is a pervasive problem harming your workplace, but you are wary about being in the NLRB’s crosshairs, consider training your employees about the evils of gossip and the meaning of a respectful workplace. This training will likely pay a better dividend than a policy statement in a handbook that most employees probably ignore, or never read in the first place.

It’s time to update your severe-weather policy

How bad is the weather going to be in Cleveland today? It’s so cold that even the Horseshoe Casino is closed. You can’t even get hot at the tables.

In light of these historically frigid temperatures, I’m re-sharing a post I ran all the way back in 2010 on workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

1. Communication. How will your business communicate to its employees and the public whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes? Phone chains, email blasts, text messages, and even social media updates are all effective tools to communicate this essential information.
2. Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?
3. Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?
4. Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?
5. Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

Please be safe and stay warm.