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Question: How do employers protect against departing employees who may become violent?

Answer:

Perhaps you read about the woman who recently put her HR manager in a choke hold and stabbed her with a pen when she became angry when leaving employment. Mind you, this employee was resigning, not being terminated, and she had turned in a broken computer tablet. The employee became enraged when HR told her she would have to pay $500 for the tablet to be fixed pursuant to Company policy. The departing employee fled the scene but police later located her and apparently charged her with assault and battery.

The best advice in these circumstances is to trust your instincts. If you know you are going to have a confrontation with an employee (such as a meeting to terminate or confront an employee about a difficult topic), take steps to mitigate risk. Here are some steps to consider and/or implement:

If you anticipate a strong reaction, do not meet with the employee alone. Be sure there are two of you present.
Ensure at least one other person knows when and where you are meeting.
Have a desk, table or other piece of furniture between you and the employee, to help define boundaries.
Consider having security on site, in case the meeting goes sideways.
If the departing employee makes a threatening comment, such as, “You’ll be sorry for this,” take it seriously. Immediately consult with colleagues, counsel or someone else with expertise dealing with such situations for guidance.
Try to disarm a threat or dispel anger. “Joe, that sounded like a threat. I understand that you must be angry. I’d like to support you in this transition.”
If a meeting becomes hostile, cut it short and try to get yourself out of the situation as quickly as possible.
Situate yourself in the meeting room such that you can leave easily, without having to pass or get around the angry employee.
Ensure colleagues outside the meeting room are aware of your concerns and are on alert to come to your aid, should the need arise.
Consider installing a panic button in the room where difficult HR meetings occur and at your reception desk, so security or the police can be summoned quickly in case of emergency.
Minimize reasons why the departing employee may have to revisit the workplace. For example, mail the final paycheck and offer to have personal belonging collected and delivered to the departing employee’s home.

About the author: Laura Liss is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that affect their businesses.

Question: Do pets belong in the workplace?

Answer:

There is a growing trend of companies providing therapy dogs at work to help ease their employees’ stress. Pet Partners is a non-profit that hosts therapy animal events at businesses across the United States. Pet Partners has volunteer handlers who bring trained pets to businesses and allow employees to visit with them for set time periods during the workday. These visits with pets are reported to be a favorite benefit among employees who go back to work more relaxed. Of course, one employee’s stress reliever may be anxiety provoking to another. While some find dogs to be relaxing and playful, others have an intense fear of dogs. Employers also need to consider employees with allergies and how they may be negatively impacted by the presence of dogs in the workplace.

Some employers also are becoming pet-friendly, where employees are permitted to bring their pets to work, and not just on the annual Take Your Dog to Work Day (which is recognized on the first Friday after Father’s Day each year). Some companies have summer hours on Fridays, others are allowing employees to bring their pets to work on Fridays during summer months. Being around animals can have tangible psychological benefits – such as boosting morale and improving productivity. Should your company decide to begin allowing pets at work, first think through some of the practical issues that may arise:

Have procedures in place to handle situations where visiting pets do not get along with each other;
Attempt to prevent aggressive pets from visiting the office. However, new environments can create over-excitement or aggressiveness even in regularly docile pets;
Ensure employees keep safety top of mind: use leashes or crates in the workplace and do not leave pets unattended;
Remind employees to bring food and water to care for their pets and to take appropriate breaks with their pets during the workday; and
Ensure pet owners provide guidance to co-workers on how best to approach their animals and whether petting from strangers is welcome.

Question: Should employers ask about salary history in the hiring process?

Answer:

These days, doing so may open the door to trouble. You may have read about various legislation being proposed and adopted in various cities and states about salary histories. If your business operates in a location that has not yet passed such a law, employers are left to wonder whether asking an applicant about their salary history is still fair game in the hiring process.

The 9th Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, recently shed some light on this issue. The 9th Circuit held that prior salary history cannot be used to justify differences in pay between male and female employees. The Federal Equal Pay Act generally prohibits companies from paying employees doing the same job different amounts, unless the wages are based on a merit or seniority system, or if the wages are determined based on the quality or quantity of work, or “any other factor other than sex.” This quoted exception was what the 9th Circuit was focused upon. The Court held that this catchall language cannot be construed to justify setting salaries based on prior pay given that the prior pay reflects “. . .a discriminatory marketplace that valued the equal work of one sex over the other.”

This decision is expected to be appealed and several other gender-pay cases are pending across the country. So stay tuned for further direction. Meanwhile, if an employer asks a question about salary history, then the information is known and the applicant could infer that an employer used that information in setting compensation. Opening this door may not be worth it given the way these cases and the laws are trending. For more information on this topic, see my prior post here.

Question: Do employers’ own computers create potential overtime liability for off-the-clock work?

Answer:

Yes and a health-care company in California just learned that the hard way. An employee of John Muir Health sued her employer on behalf of herself and a potential class of employees for overtime violations under both the Fair Labor Standards Act (FLSA) and the California Labor Code. While the plaintiff in that case could not specifically allege the hours worked by employees, the Judge declined to dismiss the overtime claims because the plaintiff alleged that the employer’s computer systems would establish that the employees had worked off-the-clock.

Off-the-clock work is work that is performed for the benefit of an employer that is not counted towards an employee’s weekly hours worked and is not compensated. This may take many forms, such as employees who put in extra work by coming in early, staying late, working through lunch or regularly checking email after work hours. Employees may think they are being helpful, but if this time isn’t captured and compensated, it can leave employers vulnerable to overtime violations.

The named plaintiff in the John Muir Health case claimed that she and other employees would clock out, but then continue to conduct work, such as entering patient notes and processing insurance claims. The employer’s EPIC and MIDAS computer systems track when employees are using those systems. The employer’s KRONOS system tracks when employees clock in and out of work. The plaintiff claimed that her overtime work, allegedly totaling about $30,000, could be determined by comparing her time entries in each of her employer’s three computer systems.

Some employer takeaways to avoid off-the-clock exposure:

Ensure that hourly employees are not performing off-the-clock work and that your own computer systems do not establish otherwise;
Do not allow employees to clock out and then continue working or to spend time monitoring or responding to emails in the evenings or on weekends;
Make sure your management team knows not to reach out to hourly employees after work hours, which may create an expectation that the hourly employees respond;
Consider limiting hourly workers’ remote access to computer systems to prevent off-the clock work from being performed;
Implement a policy that prohibits hourly employees from engaging in off-the-clock work and emphasizes that all working time must be recorded; and
Pay for after-hours work performed and take disciplinary action if the off-the-clock work is unauthorized.

About the Author: Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: Do employers need to worry about their employees’ ringtones?

Answer:

Apparently, yes, if the ringtone is sexually explicit. An employee of Trane U.S., which is a subsidiary of Ingersoll Rand, recently filed suit in federal court alleging that her supervisor intentionally subjected her to a sexually explicit cellphone ringtone. The employee claims that she let her supervisor know that the ringtone, which mimicked the sound of a woman having an orgasm, offended her. Rather than changing the ringtone, the supervisor purportedly kept using it and also tried to engage her in sex talk. The employee further alleges that HR failed to investigate her complaints and then that she was retaliated against in the form of various adverse employment actions, which culminated in her termination. Trane now faces litigation for sexual harassment and retaliation.

Now more than ever, employers must provide workplaces that are free from sexual harassment. This includes monitoring employees’ electronic devices, even if they are personal devices. If an employee wants to use an inappropriate or potentially offensive ringtone outside of work, that’s probably not the employer’s business, even though it may not show the best judgment on the employee’s part. On the other hand, when those types of ringtones are used in the workplace, it can quickly become the employer’s problem. Consider implementing a policy against disruptive or offensive ringtones in the workplace. Alternatively, consider whether it may be appropriate to have a policy that requires that cellphones be kept on silent or vibrate mode during working hours. This combats both potentially offensive ringtones, as well as the annoying co-worker who leaves her desk without her cellphone and makes her neighbors endure a cycle (or many cycles) of distracting rings.

Question: Does your diversity and inclusion program embrace older workers?

Answer:

Many employers may hesitate a moment before answering that question. Diversity and inclusion programs often focus on other protected classes. However, employers should ensure that older workers also are considered and supported. There have been a series of lawsuits against large American employers regarding their employment practices that allegedly favor younger workers and recent college graduates, to the detriment of older workers.

Most recently, Ikea was sued by a 54 year old hourly worker who claims he was not promoted to a management position because of his age. The lawsuit was brought on behalf of a proposed class of employees to seek redress for Ikea’s alleged systemic denial of advancement opportunities to older hourly retail workers . Specifically, the lawsuit alleges that “IKEA has engaged in a company-wide, institutional policy of denying training, development, and advancement opportunities to its older employees.”

The Age Discrimination in Employe Act (ADEA) protects employees age 40 or over with respect to any term, condition or privilege of employment. Some common examples of age discrimination include:

Showing a preference for hiring younger workers,
Letting older workers go during layoffs or restructuring,
Offering younger workers better terms or conditions of employment, or
Excluding older workers from new training initiatives.

To avoid being the next IKEA, and to ensure diversity and inclusion programs cover all bases, make certain that your policies and practices strive to make decisions equally across age groups. Rather than writing off older workers as “overly qualified,” especially if they seek positions that may be considered a step down, consider whether older workers actually could be an asset. If so, use recruiting messages that seek “mature” or “experienced” candidates, which may convey that older workers are desired. Likewise, with four generations of workers now working side by side, employers need to learn not only to recognize and accept the traits of each generation but also to provide training and education to assist them to coexist productively.

Question: What should employers say about employees who are fired?

Answer:

Typically, the reasons for separation are kept confidential. Both internally and externally, employers tend to provide innocuous explanations, such as “Joe has left the Company to pursue other career opportunities. We thank him for his service and wish him well.” With the #MeToo movement, we have seen a shift in the way information about terminations is shared. For example, when NBC fired Matt Lauer, not only did NBC open the Today show with an announcement about the decision, but also they included some details around what is normally sensitive personnel information. NBC explained that it had fired Lauer for “inappropriate sexual behavior,” that NBC had received a detailed complaint from a colleague just two nights before the firing and that the complaint represented “a clear violation” of the Company’s standards. NBC further explained that while it was the first complaint about Lauer in more than 20 years at NBC, the Company was “presented with reason to believe this may not have been an isolated incident.”

Given the current sexual harassment climate, NBC had its reasons for trying to get in front of this situation, reasons that may not apply to the average or lower profile employer. Generally, employers do not explain why an employee is no longer employed. Employers need to be mindful of violating the departing employee’s privacy and dignity, as well as opening the Company up to a potential defamation claim. Employers also do not want remaining employees to feel that their own personnel situations may be shared, should they have performance issues down the road.

However, in certain circumstances, employers may feel a need to make an example of an employee. If an employee is a known harasser and an employer’s investigation reveals that this misconduct is rampant and well-known, this may factor into the post-employment communications. Practically speaking, in this type of situation, the remaining workforce already knows why the harasser suddenly is no longer with the Company. If the employer follows the termination with some reminders of how seriously the Company takes rule violations and a refresher course on anti-harassment, the employer can more subtly set an example of this employee without ever directly commenting on the reason for termination.

Often it is best for companies to remain neutral or silent on the circumstances of a termination. When an employer feels strongly that it should comment on a termination, for example, to show commitment to a safe and comfortable workplace, the amount of detail revealed and the words used should be carefully chosen. Any communications or messaging regarding terminations should be prepared in consultation with the Company’s human resources, legal and public relations teams, as applicable.

Question: Does using Facebook to recruit job applicants violate discrimination laws?

Answer:

Possibly, if your recruiting strategy is limiting your job postings to particular age groups (or perhaps other protected classes), to the exclusion of others. Facebook allows advertisers to choose their audience. In turn, Facebook uses the extensive data it collects about its members to ensure the ads reach the intended audience. This “microtargeting” permits employers who are advertising to reach their preferred applicant pool, including people they believe are the most viable hires.

A recent class action filed against Amazon, Cox and T-Mobile US by the Communication Workers of America and three workers alleges that ads targeted users by age on Facebook in violation of the Age Discrimination in Employment Act (“ADEA”). ADEA prohibits discrimination against applicants or employees age 40 and over. This case, and apparently the many others likely to follow, focus on employers alleged conscious decision to exclude older workers by electing to have their ads for jobs only visible to younger members of Facebook. In posting ads on Facebook, employers are now able to reach Facebook users in certain age groups, such as ages “22 to 40” or “20 to 45,” apparently to the exclusion of other (insert “older”) potential applicants.

The ability to recruit on Facebook in this targeted fashion may help direct ads to the desired applicant pool and allow advertising dollars to be spent wisely. However, companies that do so should be careful in executing their recruiting strategy. Employers who target certain applicants or employees should do so based on bona fide occupational qualifications (BFOQs). For example, an employer may not be able to hire minors for certain jobs. However, from an age perspective, this BFOQ defense is pretty limited. Given that this seems to be the latest iteration of employment class actions, employers should carefully assess their recruiting strategies and make adjustments as needed to avoid joining the ranks of those companies already sued.

Question: Can you send a cease and desist letter by singing telegram?

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Answer:

Apparently, yes you can. While this blog typically is premised on common questions companies ask, I must confess this is not a question that I’ve ever been asked. Nonetheless, I could not resist blogging about Bud Light’s creative take on what is often a legalese laden, scare-inducing missive.

Bud Light trademarked its slogan “dilly dilly” and successfully has been using it in a marketing campaign and TV commercials. A craft brewery recently crossed the line and used “dilly dilly” in the name of one if its new brews. When Bud Light learned of this, it responded with a stern, but tongue-in-cheek cease and desist letter, letting the brewery know that this should be a one-time run using the “dilly dilly” name for this brew. The message explained that continued use of Bud Light’s trade name would be met with a “private tour of the pit of misery” (as opposed to the usual threat of an injunction with a claim for all kinds of damages and attorneys’ fees).

To see a recording of the live delivery of Bud Light’s cease and desist letter (or scroll, rather) by town crier, click here.

Given the positive reception and press Bud Light’s clever cease and desist communication received, perhaps more companies will consider getting their legal and creative teams together to address such infringing conduct. It’s refreshing to see that even in the law, there can be levity.

Question: How do employers limit holiday party liability?

Answer:

There are several precautionary measures employers can take to limit risk this season of holiday parties:

Consider the day of the week. Weekday holiday parties are less intrusive on employees’ personal time and are less likely to get out of control, than holiday parties that fall on the weekend.
Although making attendance mandatory may be tempting for various reasons (such as wanting a good turn out or the desired camaraderie that may result from employees socializing outside of work), resist the temptation. This could put the party within the course and scope of employment, which could both trigger potential overtime obligations for hourly employees and coverage under your workers’ compensation policy if there were an injury at the party.
If you choose to serve alcohol, limit consumption by:
- allowing each person a limited numbers of drink tickets,
- ensuring your bartenders are prepared to cut off employees if they become intoxicated,
- only serving beer and wine or a specialty cocktail that is easy on the alcohol content, or
- stopping serving alcohol an hour before the end of the party.
Be cognizant and respectful of different religious beliefs, so you do not offend or discriminate against anyone. Be inclusive by calling it a “holiday party” rather than “Christmas party.”
Especially in the current sexual harassment climate, be mindful of activities at the party that might lead to inappropriate conduct or banter. Skip the mistletoe.
Consider providing transportation after the party at the Company’s expense to discourage drinking and driving. Encourage (and possibly pay for) taxis or Ubers or use designated drivers to get people home safely.

Now that those bases are covered, have a fun and worry-free holiday party!