Employee Free Speech on Facebook

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. http://www.nlrb.gov/rights-we-protect/protected-concerted-activity

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. http://www.nlrb.gov/reports-guidance/general-counsel-memos

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies:

  • Immediately delete any policy in your employment handbook that prohibits employees from discussing their wages.
  • Don’t terminate an employee for “disparaging” the company without prior legal advice from a qualified employment attorney.
  • Add a social media policy to your personnel manual that meets NLRB requirements. http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media
  • Revise your confidentiality policy so that it does not give employees the impression that discussing their wages, hours or other terms and conditions of employment freely with one another is prohibited.
  • Don’t fire someone for rude or disrespectful behavior towards a supervisor (what we used to call “insubordination”) without significant documentation and clarification of what actually occurred and why it doesn’t violate the NLRB’s rules.
  • Don’t completely prohibit your employees from speaking to the media. You can instruct them that only one person speaks for the company (and identify that one person) and if an employee is interviewed, it must be clear that he/she is only expressing personal opinions.

Accommodating Pregnant Employees

Employers often face the question of how to reasonably accommodate pregnant employees. Many of my male (and some of my female) clients panic when they discover that one of their employees is pregnant. They fear that the pregnant employee won’t be able to do the work, that the employee will have some kind of workplace injury or that the employee won’t return to work after maternity leave.

Most employers walk on eggshells around their pregnant employees, even afraid to ask when the baby is due so that the employer can plan for work to get done while the employee is out on maternity leave. Overall, employers are just scared that they will inadvertently do something that will get them sued for pregnancy discrimination.

Their fear is not unfounded. The Equal Employment Opportunity Commission and the courts are taking a careful look at pregnancy discrimination. They want employers to reasonably accommodate the pregnant employee just as you would a disabled employee. You would do this anyway if the expectant mother had any pregnancy complications, such as gestational diabetes.

The only change is that now you would be wise to accommodate an employee who is having a normal, healthy pregnancy, if the employee asks for a reasonable accommodation.

A recent U.S. Supreme Court case held that a plaintiff can establish an initial case of pregnancy discrimination by showing that she is pregnant, that she sought some sort of reasonable accommodation for her condition, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

In other words, if you let other employees work light duty jobs from time to time, you need to allow your pregnant employee the same privilege. If you would allow an employee who has severe back problems to skip the duty of lifting heavy boxes, do the same for a pregnant employee is she asks for that accommodation. If standing at a cash register all day is hard on an expectant mother, offer a stool for her to sit on, just as you would an elderly employee.

Don’t be patronizing and assume that a pregnant employee can’t work or needs an accommodation. Allow her the dignity of working without help if she chooses. But if an accommodation is requested, you should engage the employee in a discussion (“the interactive process”) to determine what help she needs. You can decide together if her request is reasonable or if there are other equally effective options. Work willingly with your employee to help her out for a few months and she will most likely be glad to return after her maternity leave to be a very productive employee.

Here are a few other quick tips for dealing with pregnant employees:

  •  If you have less than 15 employees (counted by names on the payroll, not by full-time equivalents), then the Pregnancy Discrimination Act and the other discrimination laws do not apply to your business.
  • If you have 15 or more employees, you have to treat the pregnant employee as favorably as you would a disabled or seriously ill employee. So if you have given your most loyal employee six weeks of paid leave to recover from surgery in the past, consider giving a similar amount of paid time off for maternity leave.
  • There is no statutorily required maternity leave if you have less than 50 employees on your payroll. The Family and Medical Leave Act (“FMLA”) doesn’t become effective until you reach that magic number.
  • Paid maternity leave is not required by federal or Texas law, even if you employ 50 or more people. The FMLA only requires unpaid leave. However, consider allowing your employees to save up and use paid time off for maternity leave so they do not have to go without a paycheck during that stressful time.
  • Write a maternity policy that says that you will reasonably accommodate a pregnant employee by looking at the individual circumstances and how other employees have been accommodated rather than just setting a standard maternity leave policy that is “one size fits all”.
  • Whatever happens, don’t get mad or retaliatory towards an employee who is pregnant.

 

 

Texas Employers Face Open Carry Law

It appears almost certain that the Texas legislature will pass and Governor Abbott will sign a bill allowing the open carrying of handguns in Texas. The law will go into effect by 2016. Visible handguns in belt or shoulder holsters can be carried by anyone currently licensed to carry a concealed handgun in Texas. There are 841,500 Texans, or about 5% of Texans 21 or older, who are current concealed handgun license holders.

Openly carrying a handgun will be prohibited in areas where concealed carrying is now banned: schools, bars, sporting events and businesses that have posted signs banning handguns on the premises.

Employers in Texas need to decide now whether employees will be allowed to openly carry a handgun in the workplace. When concealed carrying was the rule, employers could take a sort of “don’t ask, don’t tell” stance on guns in the workplace. Now decisions have to be made because the issue will be so evident.

Texas employers may completely ban all guns on the premises, allow customers to openly carry but choose to prohibit employees from doing so, or also allow licensed employees to openly carry in the workplace. Considerations include deciding how your particular clientele and your workforce will feel about guns.

You may want to start some discussions now among your employees to explore their opinions. In February 2015, only 32% of Texas voters supported open carry in a UT-Texas Tribune poll. Seventy-five percent of Texas police chiefs opposed open carry in Texas, possibly because the new law is expected to prohibit law enforcement from asking if one carrying a holstered weapon is licensed to carry it. The police chiefs said they feared it is going to get very hard to tell the good guys from the bad ones. But if your business is in a dangerous area or your employees work at night, you may decide that allowing open carrying of handguns is a reasonable precaution for your employees.

You must also consider how comfortable you are as a business owner or manager being faced with a certain percentage of gun-toting employees and customers. Many employers are already uncomfortable when they have to fire an employee, no matter how justified the termination is. That termination process is not going to get easier when the employee being fired is openly armed.

Once you have decided how you are going to address this issue with your unique clientele and employees, ask your employment lawyer for a written policy to add to your employment handbook or the signs you need to inform the public coming to your place of business.

The DOL’s Database of Investigations on Compensation

In a recently posted database, the federal Department of Labor (“DOL”) has allowed the public to see the companies who have been investigated for various violations of the laws the DOL enforces, including overtime violations, minimum wage violations and independent contractor violations.

I quickly scanned the records just for 2014-2015. During that time, more than 35 Amarillo businesses were investigated. Some employed just three or four people. Others employed more than 100. But there are some visible trends in the local DOL investigators’ handiwork.

Local preschools were put under the microscope because they often pay their teachers on salary rather than hourly, resulting in frequent Fair Labor Standards Act violations. Amarillo and Canyon hotels are a favorite target, often because they pay housekeeping personnel by the room, rather than by the hour. Amarillo restaurants were repeated targets because of common violations of the tip wage credit, which allows restaurants to include tips in the calculation of whether their employees are making minimum wage or because the restaurant paid employees on salary. Local construction companies, heating and air companies and plumbers showed up on the investigation list probably because their blue-collar workers were not paid overtime correctly, weren’t paid for their travel time, or were put on salary as supervisors when they regularly  performed labor that should have been paid hourly.

Other industries that were affected by the DOL’s local efforts in the last year included home healthcare, landscaping, retail, trucking, medical, automobile service and online companies.

What can you do in your business to assure that you are paying your employees correctly? This is a very complicated area of the law, but here are some quick generalities:

  • Pay almost all of your employees by the hour and pay each one overtime wages if the employee works more than 40 hours in any one 7-day workweek.
  • Don’t pay anyone on salary unless that employee is earning at least $455 per week (an amount we expect could almost double later this year under new FLSA regulations).
  • Don’t pay anyone on salary unless you have had your employment lawyer perform an exemption analysis to determine if one of the very narrow exemptions applies to that job. Job titles such as “assistant manager”, “inside or internet salesperson”, “legal assistant”, “working foreman” and similar titles are going to invite DOL scrutiny. Your lawyer will review the actual duties in detail and not rely on the assigned title to see if you can legally pay any of your employees on salary.
  • Don’t pay anyone as an independent contractor (“contract labor”, “day labor”, “cash employee”, “owner/operator”) unless you have had a very long talk with your employment lawyer about that employee. There are numerous and onerous criteria that have to be met for a worker to actually be an independent contractor and rarely have I found a local business that can meet the tests. This is an area that is being very closely scrutinized by the DOL , the IRS and the TWC.

Workplace Romance

Since it is Valentine’s Week and I am an employment lawyer, my thoughts naturally turn to all of the ways that workplace romances can disrupt your business.

Don’t think it isn’t happening at your company. Of the almost 1,900 employees who responded to a 2014 office romance survey by Match.com, 56% of workers said they have been in a workplace relationship. Can you say “hostile environment”? It gets worse: of those who dated a co-worker last year, 20% of women and 9% of men said it involved dating a supervisor. Can you say “quid pro quo sexual harassment”?

Workplace romances are fraught with sexual harassment and retaliation risks. Many times the relationship creates opportunities for gossip, name-calling, sexual jokes and scorn. If the couple breaks up, the cold shoulder, the back-biting and the anger can easily be twisted into a claim that the workplace has become a hostile environment based on gender.

If a boss dates a subordinate and then the relationship ends, it gets even messier. The claim can become quid pro quo (loosely translated “this for that”), meaning that the subordinate may say that he or she was passed over for a raise or promotion or even fired because the boss isn’t getting what the boss wants. Quid pro quo cases involving a tangible job detriment, such as a demotion, are the worst kinds of sexual harassment cases for an employer to try to defend.

Many employers are hesitant to get involved in their workers’ “private” lives. If it is developing in your workplace, it is hardly private. If you have at least 15 employees (and are therefore subject to sexual harassment laws), you may need a written policy to establish clear boundaries regarding workplace romances. The policy can include:

  • Requirement of prompt disclosure of a developing relationship, particularly if it involves a supervisor;
  • Removal of management authority from anyone over an employee involved in a personal relationship;
  • Instruction to keep interactions at work professional (no public displays of affection, no long personal emails, no hanging around the significant other’s desk giggling and flirting);
  • Requirement that the dating couple work with management to find an acceptable solution to any problems that arise, such as complaints of favoritism from coworkers;
  • Requirement to accept transfers, changes in duties, or even voluntary termination of the more senior party if other measures don’t prevent or resolve problems.
  • Requirement that the end of any such relationship be reported to human resources so that future actions can be scrutinized for retaliation or harassment.

You may think a formal policy unnecessary, but sweet workplace romances oftentimes turn sour and when the flames of love die, out of the embers can arise lawsuits.

More Businesses Are Now Required to Keep Records of Work-Related Injuries

As of January 1, 2015, many employers who were previously exempt from the OSHA (Occupational Safety and Health Administration) requirements of tracking work-related injuries, will now have to prepare and maintain records of occupational injuries and illnesses using OSHA 300, 301, and 300A forms. If you have more than 10 employees, you may be one of those employers who has never had to worry about this before but will have to start this recordkeeping at the beginning of the new year.

Any employer of any size must report all work-related fatalities to OSHA within 8 hours. Under the new rule, all employers are also now required to report all work-related in-patient hospitalizations, amputations and loss of an eye within 24 hours to OSHA.

Those extreme situations are the only reporting requirements if you employ 10 or fewer people because you don’t have to worry about keeping injury logs for OSHA. Even if you have more than 10 employees, you do not have to keep the OSHA logs if you are in a “low-hazard industry.” But the definitions of “low-hazard industries” have changed, and that’s why you may have new reporting OSHA recordkeeping requirements.

Because OSHA has revised the regulation and is now using the North American Industry Classification System (NAICS) instead of the Standard Industrial Classification (SIC) to determine which industries fall into the low-hazard category, hundreds of thousands of employers will now be required to keep records that never had to before. It is important that you determine what the NAICS code is for your type of business so that you can tell how you will be affected by this revised rule, if at all.

Some of the business industries that will now have to keep OSHA 300 logs and post their injury records for employees to view include bakeries; automobile dealers; automotive parts, accessories, and tire stores; building material and supplies dealers; specialty food stores; beer, wine, and liquor stores; commercial and industrial machinery and equipment rental and leasing; performing arts companies; museums, historical sites and similar institutions; amusement and recreation industries; and some other personal services industries.

Some businesses that will still be defined as “low hazard” and will not have to keep OSHA records are law offices, insurance brokers, accounting firms, architectural and engineering firms, advertising agencies, schools, doctor and dentist offices, day care facilities, electronic and computer servicing companies, and religious organizations.

For more information and to discover if your industry now has to keep the OSHA records, go to https://www.osha.gov/recordkeeping. Here you can find links to a complete list of all of the business industries that are required to keep injury records, as well as a list of the exempt business industries.

You should also remain careful about terminating any employee who has reported an injury or workplace illness. OSHA prohibits employers from retaliating or discriminating against any employee who has suffered an on-the-job injury.

Painkiller Addiction is on the Rise with Employees

The U.S. Centers for Disease Control and Prevention (CDC) reports that nearly 2 million people in the United States are addicted to prescription pain killers. One of those people might be your employee.

Opioid painkillers such as Vicodin and Oxycontin that are hydrocodone and oxycodone based are commonly prescribed to treat work-place injuries and other types of chronic pain. But these drugs are often over-prescribed and abused by patients and addiction is very common. In fact, in the last ten years, painkiller addiction rates have risen to epidemic proportions in the United States, the CDC said.

Injured or chronically ill workers who develop an addiction to painkillers represent a health and safety concern to themselves and to fellow workers. They can also create potential liability risks for you, the employer, and can lead to a less efficient and less productive workforce.

An obvious first-step in dealing with any kind of drug problem in the workplace is to be proactive and have a drug-testing policy in place that allows pre-employment testing, random drug testing, testing after workplace accidents and testing based on reasonable suspicion.

Then train your managers to look for the signs of substance abuse, particularly in employees who slack off at work, take unusual and frequent breaks, are no longer punctual, and who occasionally slur their speech or make unwarranted mistakes in their work.  While many employees may be able to manage their chronic pain responsibly and without abuse, you should be aware of the warning signs of abuse and educate your managers on them as well. These signs can include bloodshot eyes, sudden weight loss, a lack of grooming, poor attendance or other uncharacteristic behavior.

Before you take action against an impaired employee, you need to consider and weigh both the safety of your employees versus the risk of a lawsuit by the employee who is abusing drugs. The Family and Medical Leave Act or the Americans with Disabilities Act may apply to this situation, so don’t make any hasty decisions without legal advice.

Texas Employers Should Consider Equal Treatments for LGBT Employees

Texas employers traditionally have not had to worry about being accused of discrimination on the basis of sexual orientation, because there is no federal or Texas law that makes sexual orientation discrimination illegal. Additionally, Texas employers previously have not had to provide spousal benefits, such as family coverage under a group health care policy, to same sex spouses.

The laws of Texas have not changed, but the tide is turning for all American employers, and Texas businesses are not immune to that trend. Last month, the U.S. Supreme Court effectively legalized gay marriage in 11 more states when the court declined to hear appeals of lower court decisions finding state laws banning same sex marriage unconstitutional. So recently, gay couples received marriage licenses and were married in several conservative states including Oklahoma, Colorado, North Carolina, Virginia, and even Utah.

At the same time, the EEOC and several courts have been wrestling with Title VII gender discrimination claims by lesbian, gay, bisexual and transgendered (LGBT) employees who say their employers have discriminated against them. Eighteen states and the District of Columbia have laws explicitly protecting LGBT employees. 91 percent of Fortune 500 companies already prohibit this kind of discrimination. But in the states where sexual orientation laws are not in place, employers can expect the EEOC and disgruntled workers to file cases to try to change the law through the court system if not the legislature.

Finally, President Obama has issued an executive order requiring that businesses that do at least $10,000 in federal work annually have to protect LGBT employees from discrimination. This affects an estimated 22 percent of the civilian workforce nationwide and many employers in Texas.

All of this means that Texas employers are engaging in very risky behavior if the employer doesn’t protect its employees from discrimination on the basis of sexual orientation. In addition, many Texas employers have retail locations or offices in the 30 states that recognize same sex marriage. Therefore, consistency in employment policies means that most of these employers should go ahead and change the definition of “spouse” in their policies and insurance plans to include same sex spouses regardless in which state the employee resides.

You may not agree politically with these changes sweeping the country, but as a prudent employer, you should consider whether the wise business decision for your company is to protect LGBT employees and treat them equally when it comes to benefits.

Employer’s Prompt Actions Defeat Harassment Claim

As an employer with at least 15 names on your payroll, you should take any claim of sexual, racial or other illegal harassment seriously and work quickly to determine the validity of the claim, to put a stop to the offending behavior, and to deal with the offender.

The necessity of quick action was confirmed in Williams-Boldware v. Denton County. In that case, the Fifth Circuit Court of Appeals decided that an employer’s “prompt remedial action” stopped the offending behavior, so that the claims of racial harassment and hostile work environment were defeated.

The key word here is “prompt”. In this case, within 24 hours of a racial harassment complaint being made, the supervisor had reported the claim to Human Resources, which began investigating. The co-worker who had made racially inappropriate comments immediately issued a written apology and the employer met with the complainant to discuss the claim, letting her know they took the matter very seriously, and they even asked for her input in deciding the best course of action to take. This included reprimanding the co-worker, requiring him to attend diversity training, and transferring the complainant to another department so there would be no more contact between them.

The best way to prevent racial, sexual, or other illegal harassment from ever becoming an issue is to make sure that your employees are aware of company policies regarding harassment in the workplace. You should have a written policy in place that clearly states what behavior is expected of your employees, what is not tolerated, and what the consequences will be for violating company policy. In addition, you should take serious and immediate steps to investigate and stop the harassment when a complaint is made.

Employers Can’t Prohibit Wage Discussions

Many employers require their employees to sign and abide by the terms of some type of confidentiality agreement, confidentiality clause, or non-disclosure agreement as a condition of employment.  Usually, the intent of such an agreement is to protect sensitive information and prevent such information from being discussed outside of the company.  But employers should carefully consider the language and wording of confidentiality agreements to make sure they are in compliance with the standards set forth by the National Labor Relations Act (NLRA).

While you might think you are well within your rights to require a confidentiality agreement that prohibits an employee from discussing such things as company “financial information” or “personnel information”, the Fifth Circuit of Appeals (which decides federal appeals for cases originating in Texas) ruled in Flex Frac Logistics v. NLRB that such an agreement is unlawful. The ruling applies even to non-unionized companies like yours.

The Fifth Circuit decided that by prohibiting the employee from discussing company financial information and/or personnel information, the employer was infringing upon the employee’s right to discuss and negotiate the terms of their employment, including salary and hours. The NRLA protects activities by employees that would aid in the formation of unions, including free discussion of the employer’s pay practices.

Therefore, if you are contemplating incorporating some type of required confidentiality agreement or non-disclosure agreement into your company policies and procedures, or if you already have an existing confidentiality policy, the terms and conditions should be carefully reviewed to insure compliance with the NLRA.  And keep in mind that the NLRA applies to ALL employers, regardless of whether or not the employer has union employees.  Also, make sure you don’t have any other policies (written or generally understood) or employment agreements that prohibit employees from discussing wages.