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Office Holiday Party

Picture of trees that have been decorated for Christmas. The scene is dark and looks like it could have been leading to an office holiday party.
Photo by Roberto Nickson (@g) on Unsplash

Happy Holidays! It is that time of the year again, when the office holiday parties are held, and merriment abounds. Or maybe it is when HR has the dreadful task of dealing with employee shenanigans. It might depend on how much alcohol you serve at your office holiday party or whether you have a giant ice luge that you pour shots down.

I mean, obviously HR is the least favorite department (E.g. Toby from the Office-he’s the WORST),but in the event you want to be nice (not naughty) to your HR team- let’s talk about some things to consider when planning your office holiday party.

Set Some Ground Rules

Make sure employees know that your employee handbook rules are still in effect. Prohibit any off-color jokes and especially any sexual banter. I’d avoid having mistletoe as a part of any of your decorations. There is always someone that will make a joke or comment about “being under the mistletoe.”  

Unless the company is a religious employer (like a church or religious school) you should not have religious themed holiday decorations.  You should also be hyper aware of ensuring you are not acting against anyone’s religious beliefs. Just look at this company that lost a lawsuit because it forced an employee to wear a Santa hat and apron while working at the furniture store.The company fired the employee after she said that her religion prohibited her from wearing the Santa hat and apron.

Finally, management and HR should know their role at the office holiday party. They are still in charge and need to monitor the party and quickly handle any situations that may arise especially those related to alcohol and sexual harassment.

Attendance Should Be Voluntary

Do not require employees to attend your party or you will be required to pay them.

Invite Spouses and Significant Others

I may be in the minority here, but I think you should allow your employees to bring their spouse or a significant other to the office holiday party (if it is not held during working hours). Work is a major part of people’s lives that many spouses never see. By allowing spouses to come you enable them to meet their significant other’s coworkers and help fill in the question marks about their 8-5 workplace environment. Not only that, you show your employees that you value who they are and who they value outside of the workplace, which increases workplace satisfaction and ultimately employee retention.

And let’s be honest, if someone is coming after working hours or on a weekend, then they probably feel that they have an obligation to come even if it is not mandatory. What that ultimately means is that the employee has to make the decision to spend even more time away from their significant others, which most people do not want to do .

Make Special Arrangements if Alcohol Will be Available

Your staff is probably not trained to serve alcohol and recognize the signs of impairment. No company wants that kind of liability, so the best thing that to do is get a professional to serve the alcohol. Also, HR should set some drink limits. Do not have an open bar. That is a great way to get into a lot of trouble.

Do not allow employees to take shots. The company should only provide beer and wine. Some companies even provide rides to employees to reduce the risk of drunk driving and the legal liability that comes with it.The company should also limit the hours that the bar is open and the length of the party. A good party is probably 3-4 hours. That is enough time for people to mingle and get home at a decent time while minimizing the risk of someone drinking too much.

Also, the company needs to provide some food. Food reduces the risk of someone getting drunk, which again leads to a host of problems.

Holiday Parties are Great for Bonding and Morale

A well-done office holiday party makes employees feel appreciated.It shows them that the company cares. It allows them to relax and interact with each other outside of work. It is a great way to have different parts of the company speak with each other and not just about work.

To help with bonding, many companies have games, or some activities for the employees to do. A game or some activity is a great icebreaker and way to encourage people to interact with those that they may not meet on a daily basis, but some people hate them, so use them sparingly.

After the Party

Investigate any complaints quickly. If any employees report that something inappropriate occurred, then HR needs to act fast to handle the problem just like for any other investigation.

Conclusion

Throw an amazing party that allows your employees to feel valued, but don’t do it at the expense of your HR team. By following the steps above, you can have a great party and reduce your risk of employee related problems.  Wishing you all a very happy holiday season!

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

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Inclement Weather, Natural Disasters, and the Workplace

People walking over a snow covered street to show that the weather affects employees ability to travel
Photo by Emanuel Hahn on Unsplash

It is that time of the year again. Winter. When every employee acts like a few inches of snow (or if you’re in Texas—frost) is a chance for a day off of work. When dealing with inclement weather related issues there are a number of things to consider.

Employee Safety Comes First

The main focus for every company is safety. No one wants their reputation to be destroyed over social media because they required nonessential workers to report after a hurricane or other major disaster. However, some companies with nonessential personnel know what to do. Just look at Waffle House. FEMA even uses the Waffle House Index to measure how severe a storm is:

“If a Waffle House is closed because there’s a disaster, it’s bad,” [FEMA administrator Craig] Fugate told NPR in 2016. “We call it red. If they’re open but have a limited menu, that’s yellow. If the Waffle House is open, everything’s good.”

 “They [(Waffle House)] try to pre-position supplies in storage somewhere relatively safe. Priority one is, ‘Who are our people? How will this storm affect their lives?’ Then you prepare how to move them. You may reserve hotel rooms, so they can sleep near stores that are going to be open.”

You’ll notice that Waffle House takes care of their employees and does not put them in danger.

Compare that to what one Pizza Hut did last year right before Hurricane Irma: 

“To all Team members,” the memo begins, before laying out a policy that dictates that employees cannot evacuate more than 24 hours before the storm and must return within 72 hours. “Failure to show for these shifts, regardless of reason, will be considered a no call/no show and documentation will be issued,”it reads. “After the storm, we need all [teammates] available to get the store up and running and serve our communities as needed.”

Do you notice the difference? Waffle House ensures the safety of its employees by planning arrangements so that employees will not need to travel far if the store will remain open. They also shut down stores if need be. Waffle House even activates its own storm center before a storm hits. They know how to treat their employees before a storm or natural disaster.

What Should Companies Do in A Natural Disaster

Show that you care about your employees.

As a Houstonian, I remember the effects of Hurricane Harvey and what businesses did to respond to it. A lot of these businesses stepped up to help employees recover by opening their own businesses and homes to employees, organizing work teams that help rebuild homes that were devastated, and doing other helpful things to show employees and the community that they care. Mattress Mack, a famous mattress store owner in Houston, even opened up his stores and allowed people that were fleeing their homes to sleep in the beds on the showroom floor.

  1. Here are a few things that companies should do to be ready for a disaster. Have an inclement weather policy. That policy should describe what happens in a situation where the employee cannot make it to work because of a natural disaster. It should tell the employee how to report that they will be absent from work and how the employee will be contacted if the company will be closed.
  2. Plan ahead. Some natural disasters, like hurricanes and blizzards, will give you a few days to prepare. Act quickly once you learn of these storms. Assess the situation to determine whether you need to shut your business down. If you do not have an evacuation order, then you should consider asking exempt employees (salaried employees that are exempt from overtime. You can view this past post for more information) to take their computers home to complete any necessary work.
  3. If you are a company or public entity that employs essential personnel, then you should start informing these employees about the plan before the disaster strikes. Many police officers, firefighters, and medical personnel may have family that evacuates, but they may be required to stay. These companies and entities should help workers prepare their families to leave. A worker that is worried about her family won’t be as efficient as one that knows that they are safe.

Inclement Weather/Snow Days

In a minor storm, some employees may not be able to make it into work even though the company is open. If the employee is unable to work, then the best thing to do is to allow them to use some of their paid time off to cover that day. The same applies if the employee is an exempt employee that takes the day off. They can be required to use paid time off.

Some employees may also arrive late to work if the weather is bad. Even if you have policies on attendance (if you don’t then you really should), you do not have to always enforce them. You can choose to waive attendance requirements if there is a good reason to do so. You just need to be consistent. 

Let’s be honest. If half of your workforce is late because the snow added 20 minutes or an hour to their commute, then you probably want to waive your attendance requirement for that day. That is unless you want to have half of your workforce upset because they feel that you were not fair.

Conclusion

Take care of your employees. They are what makes any business profitable and they should be part of your “family.” No business can succeed without them. Make sure that your policy is fair and ensures that employees are safe. That is what they expect and deserve from any company that they work for.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

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How Do I Pay Employees or Why is Paying Employees So Hard?

Image of money to demonstrate that employers need to be concerned about how to pay employees

Photo by Sharon McCutcheon on Unsplash

It should be easy to pay employees. A company writes a check or does a direct deposit and then the company does it again a couple of weeks later. Unfortunately, paying employees is one of the most difficult tasks that employers do. Lawsuits alleging violations of the Fair Labor Standards Act (wage and hour lawsuits) are up by 415% since 1997. “The top 10 employment-related settlements in 2017 totaled $2.72 billion—up from $1.75 billion in 2016.” These lawsuits are expensive! Let’s also remember that companies not only need to follow the law at the federal level under the Fair Labor Standards Act, but they also need to follow laws at the state, city, and county level. So what should employers do? Answer: They should pay their employees correctly.

Here are the Various Ways that You Can Pay Employees

1. Hourly

This is (seemingly) one of the easiest ways to pay employees. An employer pays employees the same rate for every hour that they work. Companies use this method when employees do not qualify for an exemption from overtime, their hours vary from week to week, or they are primarily part time employees.

With hourly employees there are number of things that employers need to remember to minimize potential lawsuits:

  • Make sure that the timeclock captures all the time that the employee spends working. Starbucks recently lost a case (in California which is not friendly to employers) for time spent off the clock “activating the store alarm, locking the front door and walking co-workers to their cars,” which took one employee 4-10 additional minutes per shift. Employers need to be careful about time that is spent off the clock. Regularly occurring off-the-clock work may be considered compensable time (paid time) in some situations.

One final note. While employers have to pay employees for working off-the-clock even if their policy forbids employees from working overtime without approval, the company may still discipline employees for violating their policy against working overtime without getting proper authorization.

2. Salary Exempt

Some employees are exempt from being paid overtime. There are a variety of exemptions, but the most common exemptions are:

  1. The Executive Exemption
  2. Administrative Exemption
  3. Professional Exemption
  4. Computer Professional Exemption
  5. Outside Sales

If an employee meets the required salary for the exemption (usually $455 per week) and the employee meets the duties for the exemption, then employers do not need to pay them overtime.

The issue for most employers becomes whether or not the employee actually meets the required duties to be exempt. For example, Taco Bell has been sued because they allegedly classified employees as managers that did not have the authority to hire, fire, or discipline employees or recommend that employees be hired, fired, or disciplined. The managers were essentially doing the same work as other staff: cleaning, cooking, bussing  tables, etc.

3. Salary Nonexempt

Employees can be paid a salary even if they are not exempt from overtime. Employers must pay these employees overtime for any hours that they work over 40 hours a week (or more than 8 hours in a day if required by state law). The reason that some companies use this method is that many employees feel that getting paid a salary is a status symbol and it makes them feel more like a professional. Many workers are paid a salary even though they are not exempt from overtime. The employers just limit their hours to 40 hours a week to avoid paying them overtime.

4. Commission

Employees may be paid a commission. Employees will typically be paid a straight commission (they only earn money when they make a sale) or a draw against commission. A draw is essentially an advance that the company pays an employee before they make any sales. For example, the company may give an employee a draw of $500 a week. At the end of the month or the relevant time period, the company would pay the employee any excess commissions that they earned. If the employee earned $5000 in commissions by the end of the month, then the employee would be paid the remaining $3000. If an employee earns less than they were paid in advance (less than the draw: i.e. they earned $1000, but were paid $2000), then the employee will owe their employer money.

The advantage of the draw against commissions is that it balances out the employee’s earnings. They get consistency in their pay every week (assuming that they always meet their sales goals).

5. Tipped Wages

An employer may take advantage of the tipped credit and only pay on employee $2.13 an hour (if not prohibited in their state or city) provided that the employee makes at least $7.25 an hour or the state or local minimum wage with tips. Essentially, the employer pays $2.13 and the employee earns at least $5.12 in tips. If an employee does not make at least the minimum wage with their tips, then the employer has to pay the employee the difference.

An opinion letter from the Department of Labor released earlier this month also eliminated the 80/20 rule, which barred employers from using the tip credit for employees that spent more than 20% of their time doing non-tipped activities.

Employers can now use the tip credit as long as the duties are related to the tipped activities. For example, employers can utilize the tipped credit for servers that clean up and set tables and other tasks related to working as a waiter or waitress.

6. Piece Rate

This is not a recommended approach. It is basically the equivalent of when you were a kid and were paid for every can that you brought to the recycling center. You are paid a set rate for how much you produce. For example, a farmhand may be paid a set amount for the strawberries that they bring in from the fields.

The most important point to remember with a piece rate is to be sure that employees still make a minimum wage and to properly determine the employee’s regular rate so that companies pay employees the right amount for any overtime.

Here is a helpful explanation from the Department of Labor:

The regular rate of pay for an employee paid on a piecework basis is obtained by dividing the total weekly earnings by the total number of hours worked in that week. The employee is entitled to an additional one-half times this regular rate for each hour over 40, plus the full piecework earnings.

Example: An employee paid on a piecework basis works 45 hours in a week and earns $405. The regular rate of pay for that week is $405 divided by 45, or $9.00 an hour. In addition to the straight-time pay, the employee is also entitled to $4.50 (half the regular rate) for each hour over 40 – an additional $22.50 for the 5 overtime hours – for a total of $427.50.

Another way to compensate pieceworkers for overtime, if agreed to before the work is performed, is to pay one and one-half times the piece rate for each piece produced during the overtime hours. The piece rate must be the one actually paid during nonovertime hours and must be enough to yield at least the minimum wage per hour.

7. Stock Options

This cannot be your only form of payment, but it is a way to encourage employees to work for a company. For employees, they have the option of taking less in salary for the chance to make more in stock when the company goes public or at some later point. Of course, employees may end up making less money by taking stock options in lieu of a larger salary. It is a bit of a gamble.

8. Bitcoin or Cryptocurrency

Bitcoin has fallen dramatically in price since it rose to record highs last year. Jon Hyman breaks down why it is probably not permissible to pay employees directly in Bitcoin under the Fair Labor Standards Act:

The IRS treats bitcoin and other virtual or cryptocurrencies as property, not as currency.

And, the Fair Labor Standards Act requires that employers pay employees in “cash or negotiable instruments payable at par.”

Because the IRS treats bitcoin as property, it’s very likely that the DOL will not consider it “cash” or a “negotiable instrument” (i.e., a paycheck) for purposes of wage payments.

Thus, if you are not properly paying your employees under the FLSA, you have failed to pay them a minimum wage (a big FLSA no-no), no matter how valuable the Bitcoins you’re providing may be.

Conclusion

There are a lot of ways to pay employees, but the key is to do it properly. No matter how companies pay employees they need to ensure that the company has good records so that it can adequately respond to any wage and hour claim that may be filed against the company.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

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Why Employers Should be Thankful for Employees

Photo of turkeys for Thanksgiving and to show that companies should be thankful for employees this year

Photo by Mikkel Bergmann on Unsplash

It is the week of Thanksgiving. What does this mean for employees? Does it just mean 2 extra days off this week? During this week all employers should consider thanking their employees. All employers from the giant corporations with tens of thousands of employees to the mom & pop shop should be thankful for their employees not just this week, but throughout each week every year.

Employees want to feel that what they do actually matters. Most people will spend 90,000 hours or 1/3 of their life at work. Whether we like it or not, whether we would prefer to spend more time with our family, helping the community, or just watching TV, we are destined to spend a large portion of our time at work and commuting to work. Many employees feel that their work does not matter. All companies need to change that for their employees.

Let’s look at 5 reasons that employers should be thankful for employees and 5 ways that employers can express their thanks.

5 Reasons that you Should be Thankful for Employees

Employees help ensure that your company is a success

No company can succeed without employees. Even companies in the gig economy like Uber have actual employees (even though they may have lots of workers that are independent contractors). A good employee adds value to the company. They make the company more profitable. Forbes has a great example of this:

In early 1994, Continental Airlines’ culture was toxic. Employee morale was virtually dead and the company went through ten CEOs in ten years’ time. The low morale translated into being ranked last in every measurable airline performance category, and the airline was on the verge of its third bankruptcy. Then Gordon Bethune took over as President in October of 1994.

And further:

By looking inside, at the core of Continental’s culture, and starting with themselves, he transformed the airline from ranking dead last in every customer service ranking to winning more J.D. Powers and Associates awards for Customer Service than any other airline in the world. The stock price rose from $2 a share to over $50 a share and the company was ranked as one of the top 100 companies to work for by Fortune.

Companies succeed in large part because of their employees.

They serve as your ambassadors in the real world

A good employee serves to promote the company and draw more people to the company. They help increase sales, employee retention, and performance even if that is not what they are responsible for. Good employees talk positively about their work and what they do. They are brand ambassadors.

They help you grow and learn

Employees, even the ones that need improvement, help companies learn how to succeed. When an employee fails it is an opportunity for the company to determine whether the policy needs adjusted or if the worker needs more help. By helping employees grow in their skills the company grows too because it has better employees.

New employees bring new ideas to your company

New employees bring new ideas to a company. They come without understanding that things “have always been done this way” at your company, which is a good thing. New employees may question why things are run the  way they are which may lead to improvements and changes. They also bring ideas from the prior places that they worked.

Good employees share your mission and want you to succeed

A good employee is invested in your mission and helps you to succeed. Nearly 70% of employees are not engaged at work. According to one report, 76% of workers cited a “positive corporate culture as the single most important quality in an employer.” By hiring the right people (see my earlier post) and engaging them in your mission early on (you should really have a company mission) you have something that most workplaces don’t: employees that care and want you to succeed because they are invested and believe in the company.

Here are 5 Ways that you Can Show Thanks to Your Employees

Reach out when they do not expect it with a note or other word of encouragement

Many employees are only spoken with (formally) when they make a mistake. A good manager will let employees know when they are doing something right.

Do not just meet with them when they are not performing well. Do actual quarterly updates with them.

Quarterly updates are a great way to let employees know when they are succeeding and what they can do to improve. An employee that does not know how they are succeeding and whether they can make improvements is flying blind.  Telling an employee what you like allows them to do it consistently for you, and telling them what you dislike allows them the opportunity to reroute their habits.

Give them more responsibility

Give employees the opportunity to do more when they are successful, and not just the work nobody else wants to do. Employees enjoy the opportunity to have ownership over what they are doing, and they appreciate being given a voice in their work- saying what skills they would like to grow and having you (the employer) give them the opportunities needed to grow them. No one wants to be stagnant.

Ask employees for their opinion/help

A good employee is a resource. Ask for their advice on important issues especially something that they had success with. If one employee landed a big client, then you should ask them what they did to do that. See if they are willing to share what makes them successful with other employees.

Step in to help an employee

Many employees put in long hours with little thanks. If you are a manager, then a great way to show thanks to employees and to get a better understanding of what they do is to get your hands dirty and spend some time working directly with them. I’m not talking Undercover Boss, although that’s one way to do it. Go with your employee on a sales call. If an employee is staying late and seems to be overloaded with work, then ask the employee if there is something that you can do to help them. The fact that you noticed their hard work will mean a lot to the employee.

Conclusion

No company can succeed without their employees. Now (and all the time)  is a great time to let them know why you appreciate them. It is almost the end of the year. Soon many employees will be thinking about their goals for next year. By showing appreciation now, you can help employees figure out what they want to do for their careers in the coming year.

Oh and obviously all employees like bonuses… but even if that’s not an option, genuine appreciation still goes a long way.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Prevent Sexual Harassment in the Workplace

Woman holding a #Metoo sign to show support with the #Metoo movement's goal to end sexual harassment

Photo by Mihai Surdu on Unsplash

Sexual harassment is not going away. It’s on the news daily. You hear it whispered about in the walls of many offices. At the one-year anniversary of the #MeToo movement 425 prominent people have been accused of sexual misconduct. Most recently, Google employees led  a workplace strike on November 1 to protest a multimillion-dollar settlement offer to a high ranking executive.

Sexual harassment seems so pervasive in society. Movies often portray “funny” or “romantic” scenes (like chasing after a love interest that wants nothing to do with the main character) that in real life would simply be creepy. Ever seen the movie 9 to 5 with Dolly Parton? Yeah… that’s what we are talking about- creepy bosses exploiting their employees. It is hard to turn on the news without hearing about another victim of sexual harassment or a discussion of the #MeToo movement. So, what are some steps that companies and employees can take to combat sexual harassment when it seems to be everywhere?

Have a Policy in Place to Address Appropriate Workplace Behavior.

All companies need workplace rules. When the employee handbook has clear rules for the employees, then they understand what they can and cannot do. You can take a look at Facebook’s policy as an example. The anti-harassment policy should explain that the company does not tolerate discrimination based on any protected characteristic, list the characteristics (sex, race, etc.), and give examples of what would be a violation of the policy (slurs, sexual innuendos, etc.). When the rules are public and well drafted, employees have no excuse for not following them.

Have a Procedure to Report Sexual Harassment and Ensure that there is More than One Person that People can Report to

The policy should have a procedure that people can follow to report incidents of sexual harassment. It should give multiple people that the person can report to (human resources, manger, etc.) and how they can make their reports (in person, email, etc.). People should be made to feel as comfortable as possible when they are making these reports. These are tough subjects to discuss much less bring up when sometimes the person who harassed you is in a position of power.

Train your Staff about Sexual Harassment

Some states require employers to train their staff regarding sexual harassment. California, Connecticut, Delaware, Maine, and New York require some form of sexual harassment training to either all employees and/or supervisors. There are important reasons to train your staff on this issue even if you are not required to do so. It can help reduce your liability by decreasing the likelihood that an incident will occur, which is especially important if you work in an industry where sexual banter or other misbehavior is more likely to occur (like restaurants). When you talk about sexual harassment at work you are making it known that the company will not tolerate this kind of behavior. People will be more likely to speak up.

Train your Managers

Companies need to train managers separate from their staff. The training is not the same for managers as it is for staff. Not everyone that is subject to inappropriate workplace behavior will speak up. Managers must be appropriately trained to recognize harassment, how to respond to it, and the procedures that must be followed. They are a company’s frontline of defense against sexual harassment claims.

Ensure that Upper Management Does Not Tolerate Sexual Harassment

Upper management sets the tone for the rest of the company. For example, Under Armour’s practice of allowing employees to charge strip club visits and other adult entertainment to the company was a bad policy. It is incredible that this ended just this year. If employees are allowed to do this, and if the CEO’s and other C-suite officers are allowed to expense this sort of “entertainment”, then the company’s management is not leading by example (and is likely exposing itself to sexual harassment lawsuits).

Upper management should care about sexual harassment because the average cost of a sexual harassment lawsuit runs from $75,000-$125,000, but can often result in multimillion dollar losses for a company.

Beware of Instances Where Sexual Harassment is More Likely to Occur

If the company has a party where alcohol is present, then a problem is more likely to arise. Some workplace studies have shown a link between drinking and harassment. If you are going to have an office party, then you need to ensure that you provide drink limits to the people that will be there (2 drinks per person is a good limit).

Speak Up

I’m not addressing this to the victims of sexual harassment. There are a number of reasons why they do not always report an incident. Those that do report sexual harassment or inappropriate behavior deserve to be applauded.

I’m talking about the other people. The people that witness something, but do not say anything. The people that hear about an incident, but don’t do anything about it.  Everyone is responsible for creating a positive and safe workplace where people want to work. It is people (like this) that do the right thing by taking action to make their workplace a better place that deserve to be held up as an example. Bystanders can help stop sexual harassment. They can run interference, get a manager, intervene and do a number of different things to prevent sexual harassment. We all need to do our part.

Conclusion

Sexual harassment can be severely reduced, but it will take everyone working together. If there is one thing that is evident from the past year and the #MeToo movement, it is that a lot of people have been hurt by people that they worked with.  Hopefully, we can work together to end sexual harassment.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Immigration, the Midterm Elections, and DACA

Image of the US Capitol Building to show that Congress may decide the fate of DACA

Photo by Louis Velazquez on Unsplash

Immigrants are an important part of the workforce. “In 2017, there were 27.4 million foreign-born persons in the US labor force,” which is 17.1% of the total workforce. In the recent midterm election, according to the exit polls, immigration was the 2nd most important issue in the country with 23% of respondents believing that it was the most important issue in the country. This should come as no surprise given the number of different immigration issues that have happened during the Trump administration.

In recent weeks, two major immigration changes have occurred. On Monday, the Department of Justice petitioned the Supreme Court to determine whether President Trump can end the DACA program. The TN (NAFTA) visa survived unscathed in the new trade agreement between the US, Mexico and Canada. This visa had previously been on President Trump’s hit list.

The Supreme Court and DACA

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today the Ninth Circuit ruled  that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The sister program of DACA, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents program) was ended by the Supreme Court in 2016 in a 4-4 decision. It would have allowed the parents of certain US citizens and permanent residents to continue to work and continue to live in the US. Unlike DACA, it was never put into effect. DACA’s fate at the Supreme Court will be determined by the 2 most recent Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.

It is unclear what will happen with DACA. Trump has expressed support for continuing the program but wants Congress to act. With the new Democratic Congress this may be something that both parties are willing to work on. If they cannot agree, then eventually Supreme Court will likely review the issue and over 700,000 people will be affected by the decision.

Trump and Immigration Visas

The TN visa was saved in the trade agreement between the US, Mexico, and Canada even though Trump and high-ranking senators opposed the visa. The visa allows certain professionals from Canada and Mexico to work in the US. The fact that the visa was not changed is a surprise because the current administration has been aggressive in attempting to reduce the number of visas through its Buy American and Hire American executive order.

This executive order calls for changing the H-1B visa, which is given to workers in specialty occupations that require theoretical or technical expertise. Most workers on this visa are in the tech industry or work with technology. Reforming the H-1B program has support on both sides of the aisle with Democratic Senator Dick Durbin, Sherrod Brown, and other Democrats supporting a change to the program. Some form of comprehensive immigration reform between the Democratically controlled House, the Republican Senate, and President Trump may address both the H-1B visa and the DACA program. It is an area where there seems to be some agreement on both sides of the political spectrum and the issue is important enough to be addressed.

Conclusion

Immigration issues are constantly changing in this administration and will continue to evolve. Both Democrats and Republicans have called for reforming certain visas and continuing the DACA program. The administration, the new Democratically controlled House, and the Republican Senate will eventually need to resolve DACA and may enact a comprehensive immigration reform that fixes DACA, certain visas, and perhaps the permanent residency process. DACA and other immigration problems are quickly coming to a head and require Congress to act to set some clear parameters around the issues. Surprisingly, there does seem to be some agreement between the Democrats and Republicans on the issue. The only question is whether they can work together to find a solution.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Talking Politics at Work (AKA How to Make Everyone Mad)

Picture of a finger with an "I voted" sticker on it. It aligns with the theme of politics at work because people will often wear I voted stickers.

Photo by Parker Johnson on Unsplash

It is election time. which is an interesting time to be working with people of all political persuasions.

Many workplaces have employee evangelists explaining how America as we know it is over if <insert their favorite politician here> is not elected. Others are saying that it may already be too late, and America is doomed.

Many people feel frustrated by this and fall into the “please stop talking about this at work” crowd. But does anyone HAVE to stop talking about it at work?

What Can Be Done About Employees Discussing Politics at Work?

Employees do not have free speech rights in the workplace. The first amendment only applies to the  government and not to private employers. This means that companies can have policies in place that restrict employees from soliciting employees to vote for a particular candidate and can even discipline employees in some situations.

However, the National Labor Relations Act allows employees to work together to improve their wages and working conditions. What this means in practice is that an employee can discuss issues that may be related to improving their working conditions. Thus, employees have the right to ask fellow employees to support a candidate because they will raise the minimum wage, change some standards related to OSHA, or improve their workplace in some other way.

So, what can employers do when an employee wants to talk about politics at work. There are a number of things that you should consider.

Let’s look at some situations:

The Campaign Desk/Cubicle

What should you do if an employee has turned their desk into a campaign advertisement for a particular candidate? Again, your employee has the right to engage in concerted protected activity, which means that some banners may be permitted in the workplace. What you are allowed to do would primarily depend on your office’s policy. Certain types of objects may be protected under the law (like some religious objects), but generally political items would not fall into this category. Some may be protected if they are suggesting that an employee vote for a candidate because they will improve wages or working conditions. Regardless, posting political posters in an office is not something that an employee should do because it creates unneeded tension in the office.

The Office Canvasser

A non-solicitation policy will generally prohibit employees from soliciting employees during working time and in working areas. This means that an employee cannot go from desk to desk requesting that the employee vote for a particular candidate. If your company has a non-solicitation policy, then you are able to restrict employees from soliciting others while they are working. Employees can still solicit employees when they are on break, during lunch, or before or after work. Nevertheless, a non-solicitation policy is something that all companies should have.

The After Work Social Media Poster

A company may be able to fire or discipline an employee if they post on social media about their political activities. Don’t forget about the woman that was fired for flipping off Trump’s motorcade. She was fired for having obscene things on her social media, which was against company policy. It did not help that she worked for a federal contractor. While companies can generally fire employees for any reason, as long as it is not an unlawful reason, almost every company will not fire employees for political postings on social media. If they did, then a lot of people would lose their jobs each election year.

Employers Can Ask Employees to Support a Particular Candidate

Generally, a company can encourage their employees to vote in a certain way. In 2012, one CEO emailed the 7,000 employees in his company to tell them that if Obama was elected he would probably have to let people go because of Obama’s tax proposals. He stated that rather than raising taxes, the government should lower the tax rate, which would “let me spend it on growing the company, hire more employees, and generate substantial economic growth.” Companies can and do encourage their employees to vote a certain way, which is not likely to stop as our two major political parties continue to grow more polarized each year.

Can an Employer Fire Someone Because They Support a Particular Candidate?

There are some states that prohibit employers from discriminating against an employee’s political beliefs, but not all of them do. Some states also offer protection to employees who engage in legal off-duty conduct. While this usually means that employees cannot be fired for smoking or drinking alcohol, it may also apply to supporting a particular candidate, going to campaign rallies, and engaging in other activities.

Even though many states do not offer any kind of protection to employees, most employers do not want to fire an employee unless there is a good reason to do so. Remember, hiring is expensive and time consuming. Employers do not want to do it more than they have to.

Conclusion

Fortunately for all of us, there are only a few days left until the election is behind us, which will allow all of us to remember what commercials used to play before we were inundated with political campaign ads: fast food and auto insurance commercials.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Should Halloween Give Employers Nightmares?

Picture of a lighted jack-o'-lantern to show that Halloween is scary.

Photo by NeONBRAND on Unsplash

It is that time of the year again. The time when some companies will have Halloween celebrations that involve employees dressing up in costumes or engaging in office antics. Halloween is one of the most dangerous times for employers because of the possibility of various forms of liability that they may face. The celebrations can cause issues related to religious discrimination, racial discrimination, sexual harassment, and other office problems.

Halloween May Contribute to Religious Discrimination

Halloween is one of the most interesting holidays for religious discrimination claims. Some groups may view Halloween as involving demons and claim that they cannot participate in any Halloween parties because they are Christian. On the other hand, Wiccans (of which there are approximately more than 700,000 in the US) may feel that any office celebration is a way to make fun of their religious beliefs.

Some Christians may Refuse to Participate

Some, not all Christians, may view Halloween as a demonic activity that is completely against their beliefs. If the employee is a Jehovah’s Witness or some other religion that does not celebrate Halloween, then you should not force an employee to participate. Forcing an employee to participate could cause a religious discrimination case. While Title VII, the law protecting employees from discrimination, only applies to companies with 15 or more employees, many state laws have a lower employee threshold. However, even if a company’s employees are not protected under the act, does any company really want to be known for engaging in religious discrimination?

Wiccans may View Some Office Banter as Discrimination Against Them Based on Their Religion

Some groups may view the holiday as an important day for their religion and request the day off. If an employee is Wiccan, then you should allow them to have October 31 off. You also need to be careful and sensitive to how other employees treat Wiccans around Halloween. It is important to be sensitive to the needs of these employees. If anyone makes fun of an employee for their beliefs, then you need to react and protect those employees. Many people are not familiar with the Wiccan religion, which can cause other employees to make fun of them. It does not help that Wiccans use the pentagram/pentacle as a holy symbol and the inverted pentagram/pentacle is associated with Satan by Christians. The similarity between the two makes it easy for Christians and others to feel attacked because they misunderstand the beliefs of the Wiccans. It is imperative to act quickly to defuse a situation regarding this or other misunderstood Wiccan beliefs. There is at least one instance where this has caused a lawsuit against a company.

Halloween, Racial Discrimination, and Megyn Kelly

Many people are not aware of what is and what is not appropriate to wear during Halloween. Take Megyn Kelly’s comments about blackface. Here is what Megyn Kelly said:

But what is racist? You truly do get in trouble if you are a white person who puts on blackface at Halloween or a black person who puts on whiteface for Halloween. That was OK when I was a kid, as long as you were dressing like a character.

Don’t listen to Megyn Kelly. It’s not ok. No employee should use blackface for their costume or otherwise purposefully dress themselves up to look like another race for a Halloween party.

There is one case (Nichols v. Grand Trunk W. R.R., 1999 BL 5415 (Mich. Ct. App. Dec. 21, 1999)) that used employees dressing up in blackface and chains to support the plaintiffs’ claims of racial discrimination. The plaintiffs were ultimately not successful because their claim had passed the statute of limitations (it was too late for them to sue). However, both the case and the incident involving Megyn Kelly clearly demonstrate the danger of allowing employees to dress with blackface to look like a member of another race for Halloween. They could seriously offend someone and subject them to an environment where they would experience racial discrimination.

What to Do If Your Office Has A Halloween Party

Can you still have an office Halloween party if someone could be offended and sue? Yes, you can have a party, but you should take certain steps to minimize the risks of a lawsuit or offending employees

  • If the company allows employees to dress up, then you should prohibit employees from wearing anything that has naughty or slutty in the title. No one needs to come dressed to work in anything inappropriate. Participation in dressing up or the party should always be voluntary. The normal workplace dress code that employees are expected to dress professionally and avoid anything that can be deemed offensive should still apply. In today’s current environment, I would also prohibit employees from bringing plastic guns or other items that could appear threatening to an employee. Employees should also be prohibited from dressing as anything political as this will cause office problems. Halloween and any holiday should be a time for employees to have some fun at work. It should not be a time for additional issues.

 

  • Some employees will always view a party as a way to test the boundaries of what is permissible. They may make inappropriate jokes to employees. Supervisors and managers must be aware of any instances where an employee makes any statements that could be considered to be sexual harassment and take immediate corrective action.

 

  • When given a chance to have some light fun, some employees will abuse the opportunity. If an employee is caught playing a trick on another employee or otherwise engaging in inappropriate workplace behavior, then you need to discipline the employee.

Conclusion

Halloween can be a great time for employees to relax and prepare for the upcoming holiday season. Employees still need to be aware that the normal rules apply to the workplace and they cannot engage in behavior that would be sexual harassment, racial discrimination, or religious discrimination during the holiday.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Megan Markle is Pregnant. Let’s Discuss Family Leave in the US.

Photo by King’s Church International on Unsplash

In case you have not heard, the most popular woman in the world is officially pregnant! With a royal baby on the way, it’s a great time to discuss protections for pregnant women, and what is and is not required of their employers.

First, a quick reminder. You cannot refuse to hire or fire a woman because she is pregnant. That’s a form of illegal discrimination.

What Laws Cover Leave Related to Pregnancy

There are three federal laws that protect pregnant women: The Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Family and Medical Leave Act.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) prohibits employers from discriminating based on pregnancy, childbirth, and any related conditions. It applies to employers with 15 or more employees. The act requires employers to “treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as … employees who are similar in their ability or inability to work.”

So, what does this mean for employees once they have given birth. The EEOC explains:

While an employer may not compel an employee to take leave because she is pregnant as long as she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions (e.g., provide them with the same amount of leave) as others who are similar in their ability or inability to work.

Unfortunately, some employers still do not understand that they have to treat pregnant woman the same as similar employees. For example, this police department in Illinois allegedly forced a pregnant officer to take unpaid leave because it would not allow her to transfer to a “desk job” when she was no longer able to patrol.  The officer also claims that the police department denied her a bullet proof vest that fit. Under the Pregnancy Discrimination Act, the police department should have offered her the same options to go into light duty work (desk work and interviewing witnesses rather than patrolling) that other officers were offered.

An employer in this situation should have offered the employee the accommodation that she requested if it was reasonable. This would have been the same kind of work that was offered to other employees that were on light duty.

Americans with Disabilities Act

Pregnancy, by itself, is not a disability. It may be a disability if it “causes a physical or mental impairment that substantially limits one or more major life activities.” For example, gestational diabetes would be a disability under the ADA (Americans with Disabilities Act) because it is a physical impairment that affects a major life activity: eating. If an employee becomes disabled because of their pregnancy or as a result of childbirth, then maternity leave may be a reasonable accommodation. The employer would have to go through the interactive process to determine how to accommodate the employee with a disability.

Most women that give birth or are pregnant will not qualify for protection under the ADA. Regardless, if a female employee mentions that they are experiencing a problem because they are pregnant, then companies should assess whether the ADA applies by determining if the employee has a disability and if there are any reasonable accommodations available. You can learn more about this process in one of my earlier posts.

Family and Medical Leave Act

Pregnant employees may be entitled to leave under the Family and Medical Leave Act (FMLA). The Department of Labor explains what an employee must do to be eligible:

  • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;

  • Have worked at least 12 months (which do not have to be consecutive) for the employer; and

  • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave is to begin.

Under the FMLA, employees are allowed to take up to 12 workweeks of leave for the birth and care of their child within 1 year of the child’s birth. The employee does not necessarily need to take the leave right away. Employees are also entitled to leave to treat their own serious condition that makes them unable to do their job. For example, if an employee is put on bed rest and being physically at work was an essential function of their position, then the employee could take FMLA leave because they cannot do their job because of their serious health condition.

What is the Future of Family Leave?

There is more political pressure to give some form of paid leave. Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Three Weird Reasons that You Cannot Fire Employees

Photo by Bench Accounting on Unsplash

We’ve all heard of weird laws. For example, in California it is illegal to eat a frog that dies during a frog jumping contest. What many people do not realize is that there are a number of strange and non-intuitive laws that govern the workplace. Many companies (unknowingly) break these laws all the time. Today we are going to review 3 of the strangest laws that many employers (and employees) are not aware of.

1. Employees Can Curse Out Their Boss on Facebook Without Being Fired (Maybe)

Before you send out that Tweet or post that Facebook message about work you have to read this… While I don’t recommend it, an employee may be able to curse out their boss on Facebook (or on other social media platforms) without getting fired. Yes, it is true. However, your mileage may vary.

The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to fire someone because they engage in protected concerted activity. Normally, this means employees cannot be fired for attempting to unionize a company by passing out leaflets, soliciting their coworkers, complaining about working conditions, and many other activities.

However, the NLRA also protects employees that use curse words like this phrase below in some instances (I altered the curse words):

Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The National Labor Relations Board found that this language was protected and Pier Sixty, the company, had violated the NLRA by terminating the employee for this language. There is a test to determine whether this language is protected. In this case, the two most important factors were that the company tolerated similar obscenities in the workplace and the statement was about workplace concerns and occurred in the context of alleged hostile actions by the company in the context of a union organizing campaign. While it was unlawful to fire an employee in this case for cursing out their boss, in many instances employers can lawfully terminate an employee that curse out a supervisor.

2. Companies Cannot Fire Employees for Sharing Their Salaries or Wages

Many workplaces still have rules that prohibit employees from discussing their wages with other employees. Supervisors may tell an employee that just got a raise to keep that information to themselves and not to share it with other employees because the supervisor does not want other employees to be upset that they did not get a raise. Well, that is clearly illegal.

The NLRA allows employees to discuss their salaries and prohibits employers from having policies that forbid employees from discussing their pay. This standard was recently confirmed in the Boeing decision (decided in December 2017), which established a new standard for evaluating whether workplace rules violate the NLRA. Workplace rules that prohibit salary discussions were specifically mentioned as an example of a clearly illegal rule.

Many businesses have legitimate reasons to pay employees differently: some employees have more experience, others work longer hours, some have the same job title but different responsibilities, and some may be more productive or just better employees (e.g. the top salesperson is usually easily identifiable and typically makes more than the worst salesperson). No company wants to explain to employees why they are paid differently. These conversations almost always create a sense of unfairness and lower morale. Companies also want to avoid defending their pay structure when an employee claims that the company is discriminating against people of a certain race or sex. It causes bad publicity even if the company can prove that it has legitimate and justifiable reasons for the wage differences.

3. Employees that Engage in Certain Protests or Strikes Are Protected from Termination

Employers cannot fire or otherwise retaliate against an employee for protesting or striking. One interesting case involves the “Day Without Immigrants” protests from last year. The protests involved immigrants boycotting businesses and striking to highlight how immigrants impact US businesses. It was also an effort to show the Trump administration the importance of the immigrant community as he began to take a tough stance on immigration. The case was settled, but not before the National Labor Relations Board (NLRB) Division of Advice issued an advice memo on the issue.

The NLRB found that EZ Industrial Solutions violated the National Labor Relations Act by threatening to suspend and then firing 18 employees because they participated in the “Day Without Immigrants” Protest. EZ Industrial Solutions terminated all 18 employees the day after the protest for not coming to work, insubordination (they had been told that they were needed at work), and sabotage.

The NLRB concluded that the employees’ participation in a Day Without Immigrants “was for their mutual aid or protection and constituted a protected strike.” The National Labor Relations Act protects employees that engage in activities to ‘“improve their lot as employees through channels outside the immediate employee-employer relationship” in addition to activities ‘“in support of employees of employers other than their own.”’ The protest in this case was protected because the employees were acting to protect other employees especially those that may have been undocumented.

The case provides some valuable insights to employers. Employers need to be aware that non-unionized employees can also strike or engage in work stoppages to protest their working conditions and pressure their employer to correct the object of their complaint.

Conclusion

These are just some of the weird and non-intuitive rules that employers must follow. For many companies, it is not the expected workplace obstacles that derail a company, but the unexpected challenges. The worst thing that an employer does in this kind of situation is to guess or “follow their gut.” Companies that do often find themselves in litigation.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.