SHRM’s Sexual Harassment Pop-Quiz

For those of you who have employees and customers (yes, that means all of you), regardless of whether you have a separate HR department or if you’re wearing all of those hats as owner, the Society for Human Resource Management (“SHRM”) should be something you belong to. And, no, I get nothing for plugging SHRM here. They’re just a really great resource.

Take the SHRM pop quiz on sexual harassment by clicking here.

And then think about joining SHRM for a couple hundred bucks. It’s an invaluable investment in your business.

 

The Spam Filter Dog Ate Your E-Mail Notice

Just as pleading that the dog ate your homework, you won’t get far with a judge by pleading that you never received an important legal notice because it must have gone to the spam folder.

In Emerald Coast Utilities v. Bear Marcus Pointe, the utility ended up having to pay BMP’s legal fees not because the weight of the merits so tipped in favor of that outcome. Nope. Rather, the utility’s law firm had a poorly designed email spam system, and they simply never saw the notice for the hearing where the lawyers could have probably made a convincing argument against those fees.

As one commentator points out, “an inability to manage an office e-mail system to properly receive notices of filing does not qualify as excusable neglect.”

While this was about lawyers and law firms, don’t think this excuses normal people like you and your company. Make sure to have email accounts that are general purpose (like “[email protected]…”) and make sure those get monitored regularly for notices from the various local, county, state and federal agencies that you are regulated by. Don’t let the homework-eating dog bite you in the … you know.

Say What?

No, you cannot force your employees to only speak in English. Sure, if they need to talk to customers, or if they need to convey important safety-related information between each other, you can absolutely require that those discussions be conducted in English. But while passing time in the break room? No, you cannot force employees to converse only in English.

no … nein … nyet … yok hayir … pa gen okenn

 

Dreamers, Nightmares, I-9 Forms, DACA and ICE

Like a good horror movie, complying with US immigration laws can seem like a nightmare. in The  Immigration Reform and Control Act of 1986 (“IRCA”) requires every employer to verify the eligibility of most of its workers.

The “most” part might be startling to you? Yes, most and not all. If you have someone on your payroll who has been on your payroll since November 7, 1986, (or earlier), you don’t need to verify their eligibility to work legally in the U.S.

The “eligibility” thing might surprise you, too. No, you’re not being asked to verify if someone has a “green card”. All you’re being asked to do if verify if they are eligible to work legally in the U.S. The worker could be here on one of the many temporary or migrant worker visa programs, for example.

The news has been aflutter (some may say “atwitter…“) about “dreamers” and the end of the Deferred Action for Childhood Arrivals program (the “DACA” program).

Like any good nightmare, there’s traps for the unwary.

To avoid falling through thin ICE, make sure you’re:

  1. using the current version of the I-9 form
  2. don’t make the mistake of thinking that using e-Verify relieves you of needing to use the I-9 form
  3. using a good reminder/date-tickler process to make sure you are re-verifying any and all workers who may be working for you on other-than a permanently eligible status
  4. keep copies of the proofs provided to you for 1, 2 & 3; and
  5. most importantly, keep those copies safe in compliance with NIST guidelines on Personally Identifiable Information (“PII”). Here’s a good publicly-available process to measure yourself against.

Seems daunting? Almost scary? Don’t worry. Citadel Legal can help.

Doesn’t Mean You Should

You probably remember being told this when you were in kindergarten — just because you can, doesn’t mean you should.

Free speech is one of the most core principles of our country. Most folks don’t understand the nuance, however, that the First Amendment only deals with the government and its inability to censor your free speech. In the workplace? There is no such thing as the First Amendment.

You may have heard about the dust-up over a Google employee who wrote a diatribe about his employer’s diversity program? He ended up being fired. He has filed a lawsuit, but it’s doubtful that will help much except to prolong his time in the media spotlight. The law is pretty clear — all employees are “at will” meaning you can be fired for no reason at all. The law protects employees from being “wrongfully” fired for only a handful of protected reasons.

Having politically incorrect views is not a protected class. The special snowflake can rail against the other special snowflakes all he wants — but the law won’t give him his job back.

Think twice before you “can” … because quite often you shouldn’t.

 

National May Day – is it a strike, or a swing and a miss?

Perhaps you’ve heard that “May Day” 2017 is shaping up to be one of the most heavily participated labor events in recent memory. Before it happens, then, you need to know what is and is not considered “protected concerted activity” under the National Labor Relations Act (“NLRA”).

First and foremost – you do not need to have a “union shop” to be covered by the NLRA. Presuming that none of this matters for you is one of the biggest mistakes that an employer can make.

If your employee(s) participate in any of these “day without a…” events, your normal planned and unplanned absence rules can and should be enforced.

If your employee(s) are protesting about immigration enforcement, global warming, or any of the other myriad topics that are floating around out there? The key test is whether the impetus for the protest (and for walking off the job, or not showing, etc.) is something that is within your control as the employer. You can’t control who is or isn’t POTUS, for example, and so walking off the job and picketing your store about Trump might be an exercise in free speech, but it’s also probably an actionable AWOL under your employment policies.

If the topic of the protest, however, is that your employee(s) want better pay, better health care insurance, better scheduling flexibility… you get the picture. Those are all things within your control as an employer, and the NLRB will consider such workplace disruptions to be “protected concerted activities under the NLRA.”

Whether you personally want to #MAGA or #Resist, just make sure you don’t accidentally step across the line as an employer.

 

Packing a Punch(tuation)

You’ve probably seen clever musings about the need for commas. “Let’s eat, Grandma!” versus “let’s eat Grandma” goes from joyful to dreadful, all for want of a lowly comma.

In O’Connor v. Oakhurst Dairy, the lowly comma brought down a giant. Maine’s overtime statute says that the employer doesn’t have to pay overtime for people whose jobs involve “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) agricultural produce; (2) meat and fish products; and (3) perishable foods” (emphasis added). In comes Mr. O’Connor, whose job involves driving a truck, i.e. distribution. When he didn’t get paid overtime, he sued. His legal argument, in so many words, was “I don’t do packing for shipment, nor do I do packing for distribution. I just do the distribution without doing any packing at all.” And the Court agreed.

How can your company avoid being brought low by punctuation? By having a good lawyer who can help make sure your company policies actually say what you think you mean them to say. And by making sure your company is reading the law as it should be read.

Nevermind…

Remember those updates to the overtime pay threshold that we were all wringing our hands about? (It’s back here if you’d like to remember what you were supposed to remember). A few things have happened since then. One, a Texas judge issued a national injunction barring blocking the US Dept of Labor’s overtime rules from going in to effect. And two, Donald Trump will be president starting next week.  Even if the injunction ends up being lifted at some point? The pundits are betting dollars to donuts that a Trump US-DOL will rescind those rules.

It’s All About Perceptions

Generally speaking, if my boss decides that my job performance is unacceptable, I can be fired for poor performance. Pretty cut and dry. But what if my poor performance is outside of my control because I have some kind of disability?

The Americans with Disabilities Act (“ADA”) prohibits discrimination against an employee because of their disability. The company is obligated to engage in what is called the “interactive dialog process” to see if there is a way to make a “reasonable accommodation” to the job so that the employee can still be successful in that job despite their disability.

Where things can get dicey is when the employer thinks or suspects there might be some kind of disability that is interfering with the job performance, but the employee doesn’t volunteer to confirm that suspicion.

Best advice? Keep your suspicions and thoughts to yourself, and focus solely upon job performance. Because if you speak your thoughts, whether or not I actually have the disability that you think I have, the mere fact that you believe me to be disabled obligates you to now engage in an interactive dialog to seek a reasonable accommodation for my disability. Whether that disability is real, or merely perceived.