Month: October 2018

Should Halloween Give Employers Nightmares?

Published by Brett Holubeck on October 26, 2018

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.

Published by Brett Holubeck on October 20, 2018

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

Three Weird Reasons that You Cannot Fire Employees

Published by Brett Holubeck on October 11, 2018

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