Tag Archives: workplace

Business Resolutions: Ensuring Your Business Starts the New Year Off Right

When was the last time that your business had a wage audit to evaluate whether your employees are properly classified under the Fair Labor Standards Act, or had your employee handbook reviewed and revised to bring it up-to-date with the law and current company practices? If it has been a few years, then this may be the year that your business resolves to invest in a wage audit and/or handbook review.

Wage audits include an evaluation of your job positions, pay and overtime policies, as well as payroll records of each position within an organization or department. Sometimes, audits can also include interviews with employees to ascertain if there are any issues that management should be aware of. Audits can reveal if a business has any issues with, not only misclassification of employees as exempt when they should be non-exempt, but whether managers are following the organization’s policies regarding overtime. As a company grows and changes, often the duties of its employees also change. Sometimes these changes are significant enough that a change in classification is in order and a failure to adjust the classification could result in liability. Further, a wage audit can often help to determine if an organization’s accountant or payroll company is calculating overtime in accordance with the applicable regulations. Many a lawsuit are filed against employers who believe that since they have enlisted the assistance of a third party, employee overtime is being calculated appropriately. That is not always the case.

Employee handbooks should be reviewed every couple of years, not only to ensure that the handbook reflects the current state of the law, but also that it reflects the actual practices of a company. Businesses grow and change, and actual practices can start to diverge from what is reflected in the handbook. It is always better to have a handbook that provides policies and procedures that the company is currently using and enforcing. It is never recommended for a company to have policies that it does not follow.

This post is part of a series of business resolutions to consider for the new year. In case you missed them, our previous posts in the series discussed Florida minimum wage and employee performance management.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Office Holiday Parties: Avoid Adding Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Unleashing Weingarten Rights

When conducting investigations of employees in a unionized workforce, employers often feel like the lion tamer in the cage with nothing but a whip and stool between them and legal jeopardy. Unfortunately, a recent decision by the National Labor Relations Board, In re Circus Circus Casinos, may have just taken the stool away and, in doing so, created a real circus.

The National Labor Relations Act has been interpreted to allow employees to request preferred union representation for investigatory interviews that may reasonably lead to discipline. Up until [this] Circus, this right was understood to arise only if an employee requested representation. Moreover, it was well confirmed that the employee’s selection of a representative could not be used to delay an employer’s investigation. In fact, as recently as September 2017, when the NLRB released to the public an advice memorandum addressing Weingarten rights, in which it noted that:

“[I]f the employee requests an unavailable representative, it is the employee’s obligation to request an alternative available representative in order to remain under Weingarten’s protections; the employer is not required to postpone the interview, secure an alternate representative, or otherwise accommodate the employee’s specific request.”

Nonetheless, in Circus Circus the panel broke with these seemingly settled principles.

So, what led to the three-ring circus of Circus Circus? First, employer directed an engineering department temporary employee to be fitted with a respirator to comply with OSHA regulations. Citing anxiety, the employee advised the third party that was fitting the employee that he wanted to speak with a doctor. The third party denied this request and advised the employer that the temporary employee refused to cooperate.  The employer suspended the employee pending an investigation.

Subsequently, the employer’s HR representative spoke with the employee, informing him that he was to report for a “due process” meeting the next day. The HR representative advised the employee “that if he wanted Union representation that he needed to bring the steward with him.” The employee repeatedly called and left a message with his union about representation for the meeting, but he never received a return call.

The day of the meeting, the employee appeared at the employer’s facility, walking past where the union steward worked. The employee, however, did not attempt to speak with the shop steward. Instead, the employee looked around the HR representative’s office before entering, allegedly searching for a union representative. Nevertheless, no union representative was there. When the meeting began, everyone agreed that the employee stated:

“I called the Union three times [and] nobody showed up, I’m here without representation.”

After the meeting, the employee was separated. The employee would later claim that he told the employer’s representative that he wanted the union at the meeting and, moreover, the representative told him he did not need anyone present because the matter was not a disciplinary action. The employer’s representative denied these allegations.

Focusing on the employee’s statement that he attempted to reach the union, the NLRB panel, in a 2-1 decision concluded that this statement was, in fact, a request for representation. Alluding to the fact that no magic words were needed to invoke Weingarten rights, the majority decided that the employee’s statement about his unsuccessful attempt to reach a representative—standing alone—was sufficient to invoke Weingarten rights. The NLRB affirmed the administrative law judge’s order of reinstatement and backpay.

Although Circus Circus Casinos has since appealed this decision, employers will still be well-served to tread carefully when conducting employee investigations in the interim—lest they wake the lion. As such, employers may want to consider any statement by a union employee referencing their union, their steward, a witness, or a representative as invoking Weingarten rights. A failure to do so may put an employer at risk of taking a nasty bite in the form of reinstatement or back pay.

Attorney John Getty* assisted in preparing this blog post.
*Admitted in Louisiana and Georgia

What is Harassment?

In light of all of the attention that is now being focused on issues relating to harassment and the #metoo movement, employers that do not take time to review policies and train employees may be at a disadvantage if claims ever arise. It is now more important than ever for employers to develop a better understanding of what constitutes harassment in the workplace, as well as how to prevent, recognize, and respond to harassment. Sexual (and other) harassment training is not just about reviewing company policies and telling employees how to report complaints. Training should be tailored for the specific workforce, in person, and promote respect and civility. It should be geared to help employees at all levels in an organization recognize harassment and when others are uncomfortable. In addition, employees that are responsible for receiving, investigating, and responding to complaints should be trained on how to properly fulfill these duties.

Harassment can occur both inside and outside of the workplace. Certain forms of harassment, such as a woman walking down the street getting cat-called by a stranger, do not implicate the workplace at all. However, if that same woman works for a construction company and is walking past other employees of the organization when she is cat-called by them, the same conduct may be workplace harassment and actionable. For more details on what is actionable harassment, see our October 14, 2016 blog post. Not all harassment is immediately obvious, and answering the question “what is harassment?” can sometimes be a difficult task. Are you able to recognize it?

Friends star David Schwimmer and writer and director Sigal Avin released several short videos that reflect different types of harassment in society, including three that involve workplace harassment. These videos start innocent enough, but develop into awkward and uncomfortable situations. At the end of this post is a link to one of these videos. Test yourself, watch the video, and consider the following questions:

Are you able to recognize when the harassment begins?

Can you identify the non-verbal and verbal cues that the employee is giving to indicate that she is not comfortable with the interaction?

Do you think that others in your organization would be able to recognize these cues?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

An Employer’s Response to #MeToo

If you did not know the name Harvey Weinstein prior to October 2017, you should now, following the well-publicized allegations against him of sexual assault and harassment spanning decades. The focus on the allegations against Weinstein has resulted in women and men sharing their personal accounts of sexual assault and harassment. Often these personal accounts of improper sexual behavior are tied to the workplace and are prompting a national conversation of the abuse of power in the workplace. Many of these accounts are being made with the hashtag #MeToo. Even persons not willing to share the specifics of their experiences have been using #MeToo to confirm that they were indeed victims. The hashtag itself is not a specific call to action but instead aims to raise awareness of the magnitude of the problem of sexual assault and harassment.

Improper conduct by those in positions of power in several large companies is now being highlighted, and high-ranking officials in several of those companies are having to answer for their conduct, even if such conduct is outside of a relevant limitations period for a legal claim. On November 1, 2017, NPR’s senior vice president for news resigned on the heels of allegations of sexual harassment against him by several women, including two that, according to the Washington Post, claim that “he unexpectedly kissed them on the lips and stuck his tongue in their mouths.” Questions are now being asked regarding when NPR, and other companies, first learned of allegations of harassment and why firmer action was not taken by the company.

Due to this intense focus on harassment in the workplace, companies may want to evaluate if the policies and procedures that they have in place are sufficient, if their leadership truly understands what is appropriate behavior, and if employees are familiar with how to make complaints. To do this employers should consider the following:

  • Review written policies to ensure they are easily understood and provide the proper protections for employees
  • Conduct management training regarding harassment and appropriate behavior
  • Conduct employee training to ensure employees are aware of policies in place to protect them and understand the reporting procedures

Employers should anticipate that, with the increased focus on sexual misconduct, an issue may come up within their own companies. Understanding the issue and being prepared to provide a proper response is usually a better option for employers than merely responding to an issue when it arises.

You may also want to read our past posts relating to sexual harassment.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Beyond the Hemline: Using Fashion to Recognize Employment Law Issues in the Workplace

There is a well-known saying that a person’s eyes are the keys to the soul. In the employment context, fashion choices are often keys to employee issues that not only impact employee performance and productivity, but also (should) alert employers to issues that, if not properly handled, will lead to legal liability. It may sound odd, but fashion in the workplace often provides insight into issues that implicate important employment laws, and employers should know what to look for.

When I say fashion in the workplace, I am not talking about the fashionista boss with unreasonable expectations from the 2006 movie The Devil Wears Prada (although that character has some amazing clothes), I am talking more along the line of Peter Gibbons from Office Space (1999). Peter stops coming into work on time, and when he does come in, he is dressed in casual clothing and even wears flip flops. Seriously folks, no one at Initech wondered what was up with Peter? No one investigated? I love the film, but in my Board Certified Labor and Employment attorney opinion, that is really a major plot flaw.

Consider how fashion and employment law are tied in the following scenarios:

  1. On his fifth anniversary with the company, Bob comes to work in a dress and asks to be called Barbara.
  2. Sue shows up to your conservative workplace on a Monday covered in tattoos.
  3.  Joe shows up to work wearing clothing with politically charged statements.
  4. You have an employee whose religious garb violates your company’s dress code policy.
  5. A pregnant employee comes to work with a photo of a pot plant on her shirt.
  6. Jane, who usually comes to work really put together, comes into work several days in a row wearing over-sized clothing and heavy makeup.
  7. You have an employee that appears to be wearing the same three outfits over and over.

Do you know how to properly handle these situations? Are you aware of what laws may be implicated by each? If you are interested in learning more, on Saturday, May 6, 2017, join me and another Sarasota-area employment lawyer at the Holiday Inn Lido Beach from 9:00 a.m. to 12:00 p.m., where participants will be part of an interactive presentation, including a fashion show presented contemporaneously with each scenario, that addresses the above situations (and others) and, in doing so, will review the basics of several labor and employment law issues, including but not limited to:

  • Religious Accommodation
  • Florida Domestic Violence Leave
  • Family Medical Leave Act
  • Americans with Disabilities Act
  • The Transgender Workforce
  • Gender Bias
  • Medical Marijuana
  • Employment Policies
  • Political Discourse in the Workplace

Although this presentation has been arranged by the Florida Association of Legal Support Specialists, it is open to anyone interested in attending. It has been approved for three General CLER credits. In addition, both HRCI and SHRM have confirmed with the Association that non-pre-approved attendees can obtain certification credits by directly requesting credits from the organizations using the information provided on the Attendance/CLE Certificate provided the day of the event.

Please visit falss.org for more information and to register.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Is “Locker Room Talk” in the Workplace Sexual Harassment?

The discourse that has followed a political candidate’s recently released 2005 statements regarding women has brought renewed interest in the impact of “locker room talk” in the workplace, as well as when such talk violates the law. Sexual harassment occurs when a work-related benefit is conditioned on the granting of a sexual favor, when an employee or co-worker is subjected to unwanted sexual advances, where hostile conduct is based on the victim’s gender, and when there is offensive, sexually charged workplace behavior. Although sexual banter and ribbing of co-workers can be a basis for a sexual harassment claim, there is only a viable claim of harassment if the conduct at issue is sufficiently severe or pervasive to alter the terms and conditions of employment. Thus, one offensive comment, alone, will generally not support a claim for harassment.  Regardless, one comment can result in a claim being made against the employer. Further, when one off color comment is made in the workplace and it is not dealt with swiftly and appropriately, the employer is often viewed as being complacent. It is best for employers to create a work environment that maintains respect and prohibits conduct that may one day be used as evidence of harassment.

One of the best ways to maintain a respectful workplace is to educate managers and employees about what constitutes harassment, how to report conduct believed to be harassment, and to provide training on promoting respect and civility in the workplace. The September 1, 2016, blog post discussed the EEOC’s Report on its Special Task Force Study of Harassment in the Workplace and what types of training are most effective.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558