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

 

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.

Being Both Wrong and Evil

Most of you know that employees are generally “at will”, meaning you can hire/fire an employee at your discretion. Except, of course, you cannot fire someone “because” they were too old, too pregnant, too… you get the idea, in a protected class. Likewise, you generally can’t fire someone for exercising their Constitutional right of free speech on their own time. This includes their right to support any political candidate of their liking.

If you fire me simply because I support a political candidate that you don’t like, I can sue you for retaliation.

Is it wrong, however, for you to fire me because you thought I supported a particular candidate, when, in fact, I didn’t support that candidate at all? Is that still unlawful retaliation?

Yep, you guessed it — yes, oh yes it can be. The retaliation in your blackened heart alone was apparently the problem, according to this one court. That you could also be sorely mistaken just makes you both wrong and evil.

This is not the consensus view across the country, mind you. But it should give you pause. If you’re going to discharge an otherwise good employee over something that has nothing to do with the workplace or job performance, whether or not you could be sued for wrongful retaliation shouldn’t be your threshold. Whether you’re making a bad business decision in the heat of the moment should be your threshold.