Author: Brett Holubeck

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 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

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.

Questions to Ask Before Disciplining or Firing an Employee

Published by Brett Holubeck on October 5, 2018

Disciplining or firing an employee sucks! However, with a little work companies can make decisions that are defensible, easier, and not a surprise for the person that will be fired.

Here are a few simple questions that companies can ask before they discipline or fire an employee:

Was the Employee Aware of the Company Policy that They Violated?

Every company needs a set of rules in the workplace. An employee handbook tells employees the rules that they need to follow when they call in sick, report a complaint, and do many of the most important day-to-day tasks. It also lays out the relevant punishments for various violations. Without a handbook the employee may not be aware that they violated a rule. Employees should sign an acknowledgement that they received the handbook and companies should give employees a copy of the handbook.

Supervisors need to have an even greater knowledge of the rules than employees to ensure that they treat employees consistently. Supervisors are consistent when they are familiar with these policies and consult them before the supervisor applies any discipline or fires an employee. When a manager decides what the discipline should be “on the fly” he or she risks treating employees differently, which may eventually lead to a discrimination lawsuit.

How Many Times Has the Employee Violated the Policy and Other Policies?

Is this an employee that has had a number of problems or is this the first time that the employee has had a problem? How many times has the employee violated this particular policy? Of course, if the employee has worked at the same company for 20 years, then the supervisor does not need to think about every single time that the employee was late.

If it is the first time that an employee has violated a rule, then many companies meet with the employee to help them. Companies often explain the rules to the employee again and tell employees what they need to do to improve. By working with the employee companies encourage employee growth and, hopefully, the issue does not become something that will continue to be a problem later on.

Did the Company Apply the Progressive Discipline Policy?

One of the most important steps in disciplining or firing an employee is ensuring that employees are treated consistently. A progressive discipline policy removes any subjectivity in determining an employee’s punishment and ensures consistent treatment. Some issues are better suited than others to be governed under a progressive discipline policy. Attendance issues are among the easiest issues. Sexual harassment and similar issues that are very fact specific cannot be treated under a progressive discipline policy. They require too much investigation and individual treatment to be governed by a progressive discipline policy.

Has the Company Documented the Violation and Prior Violations? Was the Corrective Action Documented?

What sort of documentation have you made for any past incidents that occurred? All companies, no matter how small, benefit from a discipline form to document any violations by employees. The form should also have a place for the company to describe any corrective action that it or the employee took. Businesses do this to document their actions and create a record in the event that an employee sues.

What Level of Discipline Does the Employer’s Policy Require?

Supervisors and HR managers can clearly understand what discipline applies in situations where the policy is rather straightforward. For example, failing to meet the required sales quota is usually a pretty easy case and the level of discipline that should be applied is rather obvious especially when every other sales person is meeting their quota.

Many companies will separate offenses into 2 different classes. Certain offenses result in automatic suspension pending termination. These offenses may include using illicit drugs or being under the influence of drugs at work, stealing, or fighting. Lesser offenses result in a smaller a form of discipline such as a counseling or a written warning.

What Discipline Did Other Employees that Have Violated the Policy Receive?

Companies try to ensure that they treat their employees equally. However, sometimes companies inadvertently treat some employees better than others especially when the policy is unclear or unwritten. Companies that treat employees differently encourage discrimination lawsuits against them.

Is There Any Reason to Reduce the Punishment? Are There Mitigating Circumstances?

What were the circumstances under which the employee committed the violation? There are a number of reasons that could reduce or completely eliminate the need to punish an employee. An employee may have needed to leave work early due to a family emergency. A mechanical error could have made it impossible for the employee to properly follow the lockout tagout procedures to safely use a dangerous machine.

Conclusion

Disciplining or firing an employee is not easy, but companies avoid a lot of trouble when they follow some simple steps. Employees generally want to succeed at work. Companies that inform employees of how to improve and what they are doing well can avoid many performance issues. Well-managed companies help employees grow. Poorly managed companies never address employee performance issues and leave employees clueless about how well they are doing their job. Which type of supervisor or company do you want to be?

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