WIRTW #56

The Employee Free Choice Act remains the hot labor and employment law topic. The stat of the week comes courtesy of the Delaware Employment Law Blog. During the first half of 2008, labor unions won an astounding 66.8% percent of secret ballot elections conducted by the National Labor Relations Board, as compared to 58.5% during the same period in 2007. At this clip, do unions really need help from the EFCA? It seems like they are doing just fine all on their own.

This rest of this week’s review touches on four themes important in today’s workplace – layoffs, bullying, technology, and discrimination:

1. Layoffs

Downsizing is a popular topic these days. The ABA Journal correctly points out that more layoffs equates to more employment lawsuits. Meanwhile, Bob Sutton plays some word games in trying to find the right nomenclature for a workforce reduction.

2. Bullying

The Laconic Law Blog discusses some possible common law remedies for employees who are bullied at work. George’s Employment Blawg asks if we really need anti-bullying laws at all. Case in Point talks about the workplace dangers of salty language. On Point reports on a real live case of bullying at work – a case in which a jury found that a manager’s staring at a subordinate’s breasts did not constitute sexual harassment. He claimed that he could not help himself because of an eye disorder.

3. Technology

The Connecticut Employment Law Blog opines on the use of social networking sites (such as Facebook) to uncover facts in discovery. If you need a good example of how this might play out, The HR Capitalist gives us an interesting case study on 13 flight attendants fired by Virgin Airways for inappropriate comments on their Facebook pages. Electronic Discovery Law reports on a case in which an employee was found to have no expectation of privacy on a workplace computer, even for personal information stored there.

4. Discrimination

World of Work brings us news of a settlement of case challenging an English-only workplace policy. Workplace Horizons talks about what “passive discrimination” means and why plaintiffs’ lawyers might target some of your workplace policies because of it. BLR’s HR Daily Advisor discusses rules for employee medical exams under the ADA.

8 common employee handbook mistakes, and how to avoid them

HR Legal News provides a list of its top common mistakes in employee handbooks. The following discusses some of the list, offers some tips on how to avoid common trouble spots, and adds a few more mistakes that should be avoided.

1. Illegal overtime policies: For example – “All overtime must be authorized by a manager or supervisor and the company will only pay authorized overtime.” Such is policy is illegal if it is applied as written. All overtime, whether its authorized or not, should be paid. A better rule to control unauthorized overtime is to prohibit unauthorized overtime and discipline those employees who violate the rule.

2. Vague FMLA language: The FMLA is rife with traps for employers who do not specify certain eligibility requirements. Otherwise, a company leaves itself open to be sued by otherwise ineligible employees. A handbook should also be clear on the interplay between FMLA leave and other paid leave policies, and to make sure that employees cannot double-dip by first exhausting paid leave before turning to unpaid FMLA leave.

3. Bans on salary discussions: The National Labor Relations Act makes it unlawful for any employer, whether union or non-union, to interfere with, restrain, or coerce employees exercising their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. One such protected activity is discussing terms and conditions of employment, such as wages. A policy that could be construed to prohibit discussions of wages or other terms and conditions of employment would violate the NLRA. A safer rule would limit confidentiality to information about corporate information and customers, and would not interfere with disclosure of information about employees’ terms and conditions of employment.

4. Unnecessary probationary periods: Probationary periods are typical in union contracts, but have no place in a non-union setting. Such a policy is counter-intuitive to the at-will nature of the employment, and could set an unreasonable expectation of continued employment after the 90 days expire. A better policy would simply re-affirm that employees are at-will and can be terminated at any time for any reason, and that all new employees’ performance will be evaluated after 90 days.

5. Too many details: A handbook should be a set of guidelines for the company to follow. It should not be intended to account for every situation that could arise, not should it be written in stone. Companies should write handbooks to leave enough flexibility to change policies when the situation dictates.

6. Missing no-solicitation policies: These policies are necessary to try to limit union solicitations in the workplace, but cannot be specifically directed at union activities. Instead, companies can draw any reasonable line, so long as the line drawn is not specifically tied to union solicitations. Moreover, the rule should include the use of bulletin boards and corporate computer systems (e-mail, intranets, etc.).

7. Lack of an at-will disclaimer and signed receipt: In litigation, a handbook is only as good as being able to prove that an employee received it on a certain date. The best proof is a signed, dated receipt in all employees’ personnel files, with enough information in the receipt itself to link it to the handbook (such as a date for the issuance of the handbook). Also, handbooks should clearly state that employees are at-will, that the handbook is not a contract, and that employees should not rely on any statements in the handbook. These simple measures will help protect against breach of contract and promissory estoppel claims.

8. Missing Harassment Policy: An anti-harassment policy is necessary to take advantage of the Faragher/Ellerth affirmative defense. It is one of the most important policies a handbook should contain, and no handbook is complete without having such a policy.

Handbooks are a necessary evil in today’s workplace, but present myriad dangers for employers if they are not carefully drafted with a keen eye to legal compliance.

“Laying the smackdown” is not an adverse employment action

An adverse employment action in a discrimination case is an action by an employer that effects a significant change in one’s employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

In Mathirampuzha v. Potter (2nd Cir. 11/3/08), the 2nd Circuit decided that an employee who had been physically assaulted by a supervisor had not suffered an adverse employment action. Ron Sacco, a supervisor but not Mathirampuzha’s direct supervisor, grabbed his arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Mathirampuzha’s direct supervisor immediately intervened to separate the parties. After a union official filed a complaint on Mathirampuzha’s behalf, the employer issued Sacco a formal written warning a transferred him to a different facility.

The court held that Sacco’s physical assault of Mathirampuzha did not rise to the level of an adverse employment action:

Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action. In the context of hostile work environment claims, we have stated that a single event, if “extraordinarily severe,” could alter the conditions of a working environment…. A “single incident of rape,” for example, “sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of 29 Title VII liability for sex-based discrimination.

Sacco’s aggressive conduct toward the plaintiff … was not an adverse employment action. After the incident took place, the plaintiff continued to work at the Wallingford plant in the same position, at the same pay, and with the same responsibilities. Indeed, there is no evidence that the assault brought lasting harm to the plaintiff’s ability to do his job. The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions -- unlike, for example, a rape, … or an obscene and humiliating verbal tirade that undermines the victim’s authority in the workplace…. The Postal Service’s response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff’s working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year.

Nobody is a bigger proponent than me of not turning our anti-discrimination laws into a general workplace civility code. But, do we want to draw a bright line in the sand, with grabbing, punching, poking, and spitting on one side, and rape on the other? Do we want African-American employees who are targeted with violence to be scuttled out of court on a summary judgment motion? Do we want women browbeaten by their male co-workers to have to raped before they can file a claim? The line drawn by the court in this case simply seems unreasonable.

Do you know? Preservation of personnel files

Do you know? In Ohio, employers should preserve personnel files for six years after an employee leaves an organization. Under Ohio Revised Code section 4112.99, an employee has six years to file a discrimination lawsuit for all types of discrimination other than age (which, for some unknown anomalous reason is only 180 days). Because of this long statute of limitations, companies should not alter, destroy, dispose of any employee files or records until that time period expires. Moreover, all employees should be instructed pursuant to a written record retention policy of this requirement.

The potential penalties for the premature alteration, destruction, or disposal of any employee’s files or records are severe. For example, if an employee files a lawsuit related to his or her termination, and the employee’s personnel file cannot be located, a court may bar the employer from presenting evidence of the employee’s poor performance that led to the termination. A court might also create an inference, binding for the case, that the employee was, in fact, a good employee and that the performance problems did not exist. If a court believes that the disposal was done willfully to hide evidence, it may even go so far as to enter judgment in the employee’s favor. Courts take these obligations seriously, and so should you.

Risks abound for businesses considering unpaid time off to save costs

Workforce Management and SlashGear both report that Dell is encouraging its employees to take an unpaid week off as a means to cut costs and avoid layoffs. Dell is not the only company considering such measures. Companies are going to four-day work weeks, or weeks off, to save enough cash to avoid having to cut staff. Times are getting scary, and many businesses are considering these drastic measures to meet their bottom lines while keeping as many people employed as possible. They assume, probably correctly, that employees would rather work less and keep their jobs than face layoffs.

These measures, however, must be carefully considered and implemented to avoid any wage and hour complications. One of the cornerstones of the FLSA’s exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employees’ pay for hours or days missed from work. If an employer reduces an employee’s pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime.

Thus, paying an employee four-fifth’s of his or her salary for a four-day work week might jeopardize that employee’s exemption. The employee is no longer receiving a static amount for all work performed during the week. The Department of Labor would probably take the position that the employer is treating the employee as hourly by reducing the salary by the hours missed during the week.

If, however, an employee is taking an entire week off, the employer can withhold an employee’s salary for that entire week without putting an exemption at risk. In that case, the employee is still receiving the same static weekly amount for all weeks in which any work is performed.

The bottom line – if your organization is considering reducing work hours to cut costs, consider doing so on a weekly basis, and not on a smaller increment. Also, discuss these measures with counsel to ensure that all legal implications are covered.

WIRTW #55

It only seems fitting to begin this week with a small roundup of some of the blog posts I’ve tagged about the election:

• Pennsylvania Labor & Employment Blog
• Workplace Prof Blog
• Wall Street Journal Law Blog 
• The Word on Employment Law with John Phillips
• Delaware Employment Law Blog

The Connecticut Employment Law Blog also points out that President-elect Obama’s Change.gov has gone live, and highlights the labor and employment initiatives his new administration will put forward.

This week also brings some other notable posts about issues other than the election.

Rush on Business (courtesy of an article on IowaBiz) reminds companies of the importance of EPL (Employment Practices Liability) insurance.

HRWorld discusses ways to protect your business when firing an employee.

The Word on Employment Law with John Phillips talks about the wave of layoffs that is likely during this down economy.

Human Rights in the Workplace brings a story from north of the border about a 44-year-old exotic dancer who is claiming age discrimination.

The Non-Compete and Restrictive Covenants Blog discusses IBM’s efforts to halt employee migration to Apple via non-competition agreements.

Trading Secrets, meanwhile, discusses the general trends related to non-compete litigation in the financial services sector.

World of Work reports on the latest case-handling trends at the NLRB.

Finally, Overlawyered brings us the bizarre story of the week, about a sham arbitration agreed to as part of sexual harassment settlement. All hell is breaking lose now that the plaintiff and the arbitrator are refusing to participate.

Religious accommodation for prayer becomes hot issue

As I've written before, Title VII requires employers to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Recently, the issue of accommodating employee’s prayer at work has gotten a lot attention. Articles in both the USA Today and the Wall Street Journal recount stories of Muslim employees whose employers refused to permit time at work to accommodate daily prayer.

The following table, courtesy of the EEOC and the USA Today, illustrates the rise of religious discrimination claims brought by Muslims, in the last 10 years, and especially after Sept. 11:

Year	Muslim	Jewish	Catholic	Protestant
1998	285	276	118	159
1999	282	287	101	171
2000	284	282	134	178
2001	330	294	143	210
2002	720	317	118	204
2003	598	260	145	241
2004	504	275	135	228
2005	507	281	122	206
2006	594	282	118	233
2007	607	287	177	258

 

Two facts stick out from this table: religious bias claims are way up across the board, and claims brought by Muslim employees lead the pack by an eye-popping margin. Before you knee-jerk prohibit Muslim (or other) employees from praying at work, consider these numbers, what real effect five minutes of prayer will have on your organization, and whether you want to be defending the bona fides of that effect at the EEOC or in court.