HOT ISSUES IN EMPLOYMENT LAW WHAT WOULD YOU DO?

HOT ISSUES IN EMPLOYMENT LAWWHAT WOULD YOU DO? Jeffrey J. Pargament, Esq. Pargament & Hallowell, PLLC 1776 K Street, N.W., Suite 825 Washington, DC 20006 (202) 775-0707 jpargament@pandhlaw.com We note that these materials have been prepared as a general discussion outline and should not be deemed to be legal advice. Specific questions should be referred to legal counsel.

LEARNING OBJECTIVES • Review hot issues in employment law • Identify common workplace mistakes • Educate you regarding the often conflicting employment laws • Offer recommendations for keeping you and your organizations out of trouble • Answer your employment law questions

SCENARIO A • ‘Tis the Season . . . • Your organization is having its Holiday Party at the local hotel. You have booked a room for yourself. One of your employees has had three too many. The hotel is sold out. • What would you do?

‘TIS THE SEASON TIPS • Distribute drink tickets • Ensure minors are not “cocktailing” • Cut people off – from drinking to excess • Don’t allow inebriated guests to drive • For those of you who need the reminder – No groping allowed and no fisticuffs permitted • Don’t jeopardize your career

SCENARIO B • Tommy’s productivity has been suffering and he has been placed on a Performance Improvement Plan • To ensure he meets deadlines, he frequently arrives early and leaves work late, but does not record his extra hours • In essence, Tommy puts in 45 hours to accomplish 40 hours of work • What would you do?

SCENARIO C • Mary eats at her desk while she is on her unpaid lunch break • She occasionally fields calls and responds to co-workers’ inquiries • What would you do?

FAIR LABOR STANDARDS ACT • Requires overtime (1½ x regular rate) payment to non-exempt employees who work more than 40 hours in a given week • No comp time for non-exempt personnel • Non-exempt employees are entitled to uninterrupted meal breaks if said breaks are unpaid • Exempt employees must be paid a salary – cannot deduct for partial day absences • FMLA intermittent leave exception • Recordkeeping requirements

COMMON FLSA ISSUES • Are employees properly classified as exempt/non-exempt? • Do we have employees working off the clock? • Are non-exempt employees experiencing more than de minimis interruptions during their unpaid meal breaks? • Are you docking exempt employees’ pay for partial day absences? • Again, FMLA exception • Who is keeping track of employees’ time? • Have you retained records demonstrating hours worked and compensation?

SUGGESTIONS • Undertake periodic audits • To ensure proper classification • Compliance with pay policies • Maintain accurate job descriptions • Establish reporting procedures for employees to report extra hours; interrupted meal breaks • Employers should not look the other way • In general, where employees do not receive uninterrupted lunches or put in extra hours, they should be compensated • In such case, what is an employer to do? • Pay the employees, but • Discipline/discharge serial violators

FLSA AMENDED TO REQUIRE BREASTFEEDING BREAKS • Employers must provide unpaid breaks and space for nursing mothers to express breast milk • Applies only to non-exempt (hourly) employees • Must provide “reasonable” breaks • Must provide a space, which is not a restroom, that is shielded from view and free from intrusion from co-workers and the public • Entitled to breaks for up to one year after birth of child • Employers with fewer than 50 employees may be exempt if they can show breaks would cause “undue hardship”

SCENARIO D • Mary reports that a co-worker is posting derogatory comments about the company and her supervisor on Facebook. • What do you do?

FACEBOOK, TWITTER AND OTHER SOCIAL MEDIA • The National Labor Relations Board provides protection to employees who engage in protected concerted activity • Coverage is extended to “employees” as defined by the National Labor Relations Act; not supervisors • Activities must be by the employee or by an employee on behalf of self and others • Protected concerted activities include complaints about wages, hours, or working conditions

Complaints about supervisors, if voiced by an employee on behalf of other employees, are generally deemed protected concerted activity • Therefore, generally cannot discipline employees who, on behalf of themselves and others, utilize social media to complain about wages, hours and working conditions • However, the NLRA generally does not protect employee who publicly denigrates the company’s product • NOTE: Rules prohibiting “employees” from discussing their wages are also violative of the NLRA

RESTRICTIONS ON USE OF COMPANY’S ELECTRONIC SYSTEMS FOR SOLICITATION • Employers may impose non-discriminatory rules restricting the use of electronic communications systems for purposes of union solicitation • The Register-Guard and Eugene Newspaper Guild, 351 NLRB No. 70 (2007) • NLRB held that employees have no statutory right to use employer’s email system for union organizing activities • Employer permitted to implement a policy providing that its communication systems and equipment “are for business purposes only and may not be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations”

NOTE: Policy must not be enforced in a discriminatory manner so as to single out union organizing activities. Limited charitable solicitations are generally permissible. • NLRB in Register Guard held that permitting charitable and personal solicitations did not prohibit employer from enforcing the policy against organizational activities • However, NLRB consists of political appointees and may revisit its decision with different results

BEST PRACTICES – POLICIES FOR RESTRICTING USE OF COMPANY’S ELECTRONIC SYSTEMS • Establish clear policies and disseminate to employees • Monitor compliance and enforce policies uniformly • General rules for use of electronic systems • Clearly state that electronic equipment and systems (including email and Internet) are the property of the employer and employees should not have any expectation of privacy in their use • Employers may limit use to business purposes only or permit limited personal use

Require employees to disclose passwords • Require that systems must be used for lawful business purposes only • Prohibit harassment and discrimination • Prohibit disclosure of employer’s confidential or proprietary information • Prohibit solicitation using company resources and systems

RULES FOR SOCIAL NETWORKING, BLOGGING AND OTHER INTERNET ACTIVITIES • Prohibit non-work-related postings to social networks and blogging while at work or while using company equipment • Prohibit disclosure of personal information of other employees • Prohibit use of employer’s logos/graphics in employee postings • Prohibit employees from implying that they represent the employer – must use disclaimers

Prohibit publication of defamatory, discriminatory or sexually offensive remarks about other employees • Prohibit defamation and fraud • Prohibit references to customers • Ensure that policies cover off-duty conduct • Special considerations for managers • Prohibit managers from becoming “friends” with employees online • Managers may not engage in fraudulent access to employee social networking sites

SCENARIO E • James joined your organization six months ago. He reports that he will need time off to undergo chemotherapy treatments. • What do you do?

TIME OFF CONSIDERATIONS • D.C. Accrued Safe and Sick Leave Act • Employers in D.C. must provide employees with up to seven days of paid sick leave per year • Amount of leave depends on number of employees • Employees accrue leave based on hours worked, starting with commencement of employment • Employees may not use leave until they have been employed one year and have worked at least 1,000 hours in past 12 months

Leave may be used for: • employee’s own illness; • to obtain medical diagnosis or care; • to care for a child, parent, spouse, domestic partner, or other family member who is ill or needs medical diagnosis or care; or • for certain absences related to stalking, domestic violence, or sexual abuse • Employee must provide at least ten days notice when leave is foreseeable • Unused leave carries over but is not compensable upon separation • Hardship exception – requires written request for exemption, which must be renewed annually

FMLA/ADA INTERPLAY • FMLA • 50 employees within 75 miles • One year of employment; 1250 hours • 12 weeks per year • DCFMLA • 20 employees • One year of employment; 1000 hours • 16 weeks every two years • ADA • 15 employees

D.C. Human Rights Act • Covers all private sector employees • Under ADA and D.C. Human Rights Act • Obligation to provide reasonable accommodations to disabled employees, unless doing so would be an undue hardship • The fact that an employee does not qualify for FMLA does not relieve the employer of its duty to accommodate the employee

AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 • Effective January 2009 • States that the definition of “disability” should be interpreted broadly • Overturns court cases which had limited the definition of “disability” • Mitigating measures other than “ordinary eyeglasses or contact lenses” may not be considered in assessing whether an individual has a disability • EEOC regulations are forthcoming • List of “major life activities” has been greatly expanded

SCENARIO F • One of your managers seeks your approval to terminate, for poor performance, Mrs. Jones, a six year, at-will, employee? • What would you do?

TIPS FOR AVOIDING CLAIMS • Review personnel file and ensure ample documentation to support the disciplinary action/promotion decision • Does the company have a policy regarding discipline for enumerated infractions? • Is there disparate treatment? • Beware of the “glowing evaluation” • Consider the timing of particular employment decisions • What is prompting the employment action? • Are you inviting a retaliation claim? • Does the employee enjoy protected status?

OTHER TIPS FOR MINIMIZING CLAIMS • Provide regular training on harassment issues/disseminate policies periodically • Remember -- e-mails count! • Don’t “throw in the kitchen sink” when disciplining or discharging employees • False reasons can result in inference of discrimination and merit jury trial • Don’t “moon” your employees • Two employees fired after complaining that bank president “mooned” them are awarded in excess of $1 million (Hitson v. First Savings Bank, (D.N.M. 2002)

HOT ISSUES IN EMPLOYMENT LAW WHAT WOULD YOU DO?