Monthly Archives: July 2009

Popular Culture in the Workplace May Be Inappropriate

Discrimination, Management

Michael’s co-worker liked rap music. He liked it so much that he constantly played it and rapped along. Even though the songs contained the “N-word”. Even though Michael is African American. Even though Michael complained several times over a year’s time to his supervisors that the lyrics he was forced to listen to were offensive.

Because his supervisors didn’t correct the problem, Michael contacted the Equal Employment Opportunity Commission (“EEOC”). The EEOC sued on Michael’s behalf for racial harassment and settled the suit against Michael’s employer last year for $168,000.

In announcing the settlement, the EEOC claimed that it is not in the business of judging anyone’s musical taste, but then made it clear that racially offensive language does not belong in the workplace even when disguised as popular culture. The employer had numerous chances to stop the wanna be rapper from offending his co-worker, but never effectively did so.

This kind of culture clash creates difficulties for employers. While television, movies and music have adopted an “anything goes” attitude, the harassment laws require that almost nothing offensive is ever said in the workplace. Every movie that Judd Apatow (“Knocked Up”, “40-Year-Old Virgin”, etc.) releases lowers the bar a little more on what passes for polite discourse in our society, yet every sexual harassment decision raises the standard for what is acceptable conversation on the job. In the middle of this struggle is the employer, trying to build widgets and make a profit, all while having to monitor every employee’s words and conduct.

Miller Brewing Company tried in 1993 to enforce professionalism by firing a manager named Jerold who repeated the punchline of a “Seinfeld” episode to a female coworker. In the episode, Jerry Seinfeld forgot the name of a girl, but remembered that her name rhymed with a female body part. The joke was that her name was “Dolores”. Jerold’s female co-worker didn’t get the joke, so Jerold found a dictionary and pointed out the definition of the rhyming body part. She complained and Jerold was fired a week later. Even though the company overreacted slightly to this one incident, Miller Brewing probably thought that its professionalism policy had done its job and that was the end of it.

The twist in this story is that Jerold sued Miller Brewing Company and the female coworker saying he was wrongfully terminated. The jury found that the woman was not really offended by the Seinfeld joke because she was known to participate in some graphic references herself. The jurors also found that Miller lied about the reasons it really fired Jerold. Jerold was awarded more than $20 million, although he never saw a dime of that money since an appeals court overturned the damages award.

In another music case, the Vail Corporation did not restrict employees listening to music with profanity or lyrics promoting violence against women, which Lisa said offended her. Stupidly, the company did tell Lisa, a Christian employee, that she could not listen to Christian music while on duty because it might offend other employees. The EEOC claimed that the employer also failed to accommodate Lisa’s religious beliefs in some scheduling requests and sexually harassed her by letting managers tell sexual jokes and make graphic comments in the workplace. The Vail Corporation paid $80,000 to settle that religious and sexual discrimination suit.

So do you as an employer have to police your workplace to rid it of all references to popular culture? Good luck with that. Realistically, there are some steps you can take to assure that professionalism reigns in your company:

  • Have clear, written policies expressing the company’s prohibition of racial, sexual, religious and other slurs and harassment, as well as a detailed procedure that your employees can employ to complain if they are offended. Enforce the policy with progressive discipline before any situation gets out of control.
  • Train your employees. So many young people (and some older ones) entering the job market are completely clueless about what “appropriate” or “professional” behavior and conversation actually look like. Yes, their parents and their schools failed them. But now they are your problem and you are going to have to be the one to educate them.
  • Take complaints seriously. Michael’s concern about hearing the “N-word” frequently in his co-worker’s musical selections should not have taken a year to be resolved. Even if you think your employee is being overly sensitive, investigate the complaints objectively and promptly.
  • Set a good example yourself. If dirty jokes, racial epithets or religious slurs ever sneak into your conversations, you can be sure that your employees are watching and taking note. Why should they strive to be professional and appropriate if you don’t bother to do so yourself?

Minimum Wage Increase Reminder

Compensation

This is just a reminder to all employers that the minimum wage rate will increase next week. Any time worked by your employees after 12:01 a.m. on July 24, 2009 must be paid at a minimum rate of $7.25 per hour.

This is the last increase from a federal law which began raising the minimum wage in $.70 increments from $5.15 per hour, which was the minimum rate prior to July 24, 2007.

If you have any belief that your employees are not entitled to minimum wage, or any questions about applying minimum wage laws, call an employment lawyer immediately. The consequences of failing to pay minimum wage properly can be very costly for a business.

Employers Targeted by ICE

Documentation

While the whole nation has been focused on our country’s economic woes, Iranian protests and the death of Michael Jackson, ad nauseum, the issue of illegal immigration has been pushed to the cobwebby recesses of most of our minds. However, if you are an employer, you need to refocus on the employment eligibility of your workforce.

U.S. Immigration and Customs Enforcement (ICE) announced on July 1 that it issued notices of inspection to 652 businesses nationwide, beginning the involuntary inspection and auditing of those companies’ hiring records. The purpose is to determine whether the businesses are complying with the immigration laws, particularly the requirement that companies have an I-9 employment eligibility form completed on each employee and that the documentation used by the employee reasonably appears genuine.

The 652 notices that ICE issued on the first day of this month exceeded the number of similar notices (503) issued by ICE during all of fiscal year 2008. ICE has been warning employers since April 30 that it is going to concentrate less on the business raids like the one at the Swift plant in Cactus two years ago that separated young children from their families. Instead, ICE is going to be focused on investigating and prosecuting employers who employ illegal workers.

Ten percent of the 1100 criminal arrests ICE made last year resulted in charges against owners, managers, supervisors or human resources directors, not the illegal workers who may have stolen identities, faked social security numbers or forged papers. Do you want to go to jail for harboring illegal immigrants for financial gain?

Just for having your I-9s out of order, even if your workers are all eligible to work in the United States, you can be fined up to $1100 per worker. If you have “constructive knowledge” from circumstantial evidence that you are employing illegal workers, you can face both civil and criminal penalties of up to $2200 for a first offense, $11000 for two offenses and six months imprisonment. If ICE can show that you knowingly employed at least 10 illegal workers for 12 months, you face imprisonment for up to five years.

Let’s say that you don’t believe that you employ any illegal workers. You may still have documentation problems. Go through your personnel files just to check for these issues:

  • Does every file contain a completed I-9 form filled out when the employee first started working for you? I can’t tell you how many of the forms I have seen don’t have both sections 1 and 2 filled out and signed.
  • Did you photocopy the documentation the employee produced that you are relying on? Copies are the best way to show why you believed the documents were valid. Double-check these. Upon a closer look, you will see slight irregularities that should have caused you concern at the time. Compare the documents you received to the genuine articles in the Employer’s Handbook provided by ICE on its website (click here).
  • If you have hired an employee since Spring 2009, have you been using the updated I-9 form, revised on February 2, 2009? (Click here for a pdf copy).
  • Have you calendared the dates necessary for reverification if your employee has work verification documents that will be expiring? Upon reverification, did you fill out Section 3 of the I-9 form?

Chances are high that your review uncovered some problems with your I-9 forms. The time to correct those is before ICE serves you with a notice of inspection, particularly if your company is engaged in one of the businesses ICE checks frequently because of past violations in these industries: agriculture, cleaning services, factories, slaughterhouses, construction companies, or other blue collar industries.

Although you will often hear about ICE targeting big employers like Wal-mart and Tyson Foods, they also inspect local small businesses if they receive any kind of tip (from disgruntled employees, competitors, the public or other law enforcement agencies) that a company is employing illegal workers.

It is clear from conversations that I have had with other federal law enforcement officers that the days during the Bush administration of the federal government being “nice” to businesses is over. If ICE or any other federal inspector shows up at your business, you will breathe a sigh of relief if you have gotten your record-keeping, such as your I-9s, into shape before the feds came knocking.

Recordkeeping Tips for Employers

Documentation

This may not be the most exciting topic in employment law, but it is one of the most important: AS AN EMPLOYER, YOU HAVE TO KEEP GOOD RECORDS. Virtually every employment law requires the employer to do some recordkeeping, and anytime the employer fails to do so, the employer is the one that gets burned.

For example, the Fair Labor Standards Act, which regulates overtime and minimum wage payments, makes it imperative for an employer to keep the following records on each employee for three years:

  • Identifying information such as full name and address;
  • job title and duties if claiming exempt status for employee;
  • rate of pay;
  • hours worked each day and each workweek (by time card or time sheet if nonexempt);
  • payment of wages, including overtime adjustments;
  • all bonuses or other additions to wages;
  • amounts and types of all deductions taken from each paycheck;
  • total wages paid in each pay period;
  • dates of payment and the pay period covered;
  • commission agreements or other compensation related agreements.

These records need to be organized and accessible enough that they could be produced to a Department of Labor wage and hour investigator within 72 hours.

The foregoing list is only for that one law (FLSA). To battle payroll tax questions, discrimination accusations, immigration complaints and the myriad other employment law investigations and civil claims with which your company could be involved, you need to have an organized and deliberate system for keeping records about all of your employees.

This usually involves at least three kinds of files. First, you should have detailed and voluminous personnel file on each employee. I have many clients who are requested to bring me the employee’s personnel file when I am asked to defend the company in a discrimination case, for example, and all the business owner brings me is a thin folder containing an employment application and a W-4. I can usually predict the bad outcome of the case for the company right then, just based on poor recordkeeping.

This first set of personnel files ought to contain the application, W-4, I-9 form regarding eligibility for employment in the United States, a report to the Texas Attorney General of a new hire, interview notes, background investigations, training records, performance appraisals, disciplinary actions and warnings, signed acknowledgments of company policies, and termination documentation.

Second, you need a separate set of confidential personnel files with highly restricted access that are kept in a locked cabinet and contain medically sensitive information, such as insurance applications, drug or alcohol tests, physical exams (if you require them for physically-intense jobs), requests for Americans with Disabilities Act accommodations, documents related to use of sick leave or Family and Medical Leave, doctor’s notes and worker’s compensation history.

Third, you should keep payroll records like those set forth above, which are necessary to comply with the Fair Labor Standards Act. This file should also include attendance records, vacation requests, holidays off, records of raises, and other records that completely document the reasons and amount of the employee’s pay. Many employers keep all of these records electronically, which is fine, as long as you regularly back up your system so that no records will be lost.