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Politics in the workplace: how to remain legally compliant during election season

lisahein — Thu, 20 Aug 2015 15:22:07 +0000

With the election approaching, and presidential campaigns underway, the water cooler discussions have already started. While it is natural for employees to discuss current events at the workplace, how far should the political discussions reach? What are an employer’s obligations to keep the office politics free?

Limiting political discussions

While the First Amendment governs free speech rights, the protections apply only to state action. Employers have the ability to regulate political discussion in the workplace. First Amendment protections do apply to public employers and protects a public employee’s rights to free speech. While some states have statutes that regulate free speech in the work place, others do not.

A clear employment policy is the best way for employers to control politics in the workplace. Employers can discipline or discharge an employee for violation of workplace policies, as long as the policy is applied consistently to all employees. In most cases, employers should reserve discipline or discharge to instances where the employee’s conduct interferes with his/her work activities or creates a disruption in the workplace.

Political activities away from work

An employer must be careful when regulating an employee’s off duty conduct. In general, before considering a policy or practice that regulates an employee’s off-duty political speech, an employer must determine whether there is a legitimate business reason to limit the conduct. Examples of a legitimate business activity might include:

the company’s reputation

disruption to the workplace and employee morale

potential legal liability to the employer because of the conduct

loss of business relationships related to the conduct.

Absent a legitimate business reason, employers can face claims of discrimination, or claims for invasion of privacy for trying to regulate non-work-related conduct.

Political campaigning at work

Non-solicitation policies

Generally, employers can require that employees refrain from activities, such as campaigning, or passing out political literature during their work hours, excluding breaks and meal times. Employers with non-solicitation policies may apply those policies evenly with respect to all areas of solicitation, including selling cookies for a child’s school fundraiser, to soliciting for political purposes. Employers must be mindful of the NLRB’s protection of employee’s ability to protected concerted activity for their “mutual aid and protection.” These rules allow employees to generally discuss the terms and conditions of employment. Because the NLRA protects union-related activities (but not political speech), employers must take great care to distinguish the two when establishing a non-solicitation policy.

Political dress, including badges and buttons

When it comes to employees wearing badges, buttons, or other political dress, an employer may establish a neutral dress code that prohibits the employee from wearing T-shirts or other types of clothing. However, with respect to badges and buttons, the NLRA will allow employees to wear badges or buttons that are related to a union or to unionization as long as doing so does not create a safety hazard, or impact another legitimate business purpose. In general, if an employee is wearing a political button that also includes a union message, employers should refrain from prohibiting that activity.

Therefore, when considering a policy to regulate political speech and solicitation, employers should consider the following:

Applying a neutrally enforced policy that restricts solicitation only during work hours (not on lunch breaks or rest breaks), employers can refuse to let employees distribute or post political flyers at work.
It is a good idea to send out a reminder to employees of your policy in the weeks leading up to Election Day.
If an employer prohibits wearing political buttons or posting political posters, the company should be certain that the prohibition is followed absolutely.
Employers can also ban political slogan buttons or T-shirts as part of your dress code policy, particularly for employees who come into contact with clients or customers.

The ban must be uniformly applied – if anyone (including the company president) wears a political election button, the ban loses its force and an employee disciplined for violating the policy may have a claim for wrongful discipline or discharge, or even coercion under state law.

Any embargo on buttons may not extend to union buttons worn during a union organization or election as this is protected under the NLRA, but more about that later.

Use of an employer’s company equipment

Employer company equipment includes items such as bulletin boards, copy machines, telephones and computer systems. While employees enjoy limited rights to solicit and distribute union-related materials on company property, an employee enjoys no such right with respect to use an employer’s equipment for union or other purposes, including political campaigning.

Employers who wish to control the use of their company’s computer systems, including email, must have and regularly enforce an electronic communication policy that warns employees that the computer systems are company property and that regulates the type of discussion that can take place on a computer system. An employer can limit the political discourse that takes place on its computer systems through an electronics communication policy,.

Asking employees to support employers’ political views

Under federal law, employers have some ability to ask executive or administrative personnel who are exempt from the Fair Labor Standards Act (FLSA) and have policymaking, managerial, professional or supervisory responsibilities to vote for or against a particular political candidate. This ability does not apply to the rank and file employees. However, employers are restricted from influencing employees’ actions in state elections. It is a violation of the election laws for a person acting alone or through another person to directly or indirectly subject any person to undue influence with intent to induce any person to:

refrain from registering or voting

be or refrain from or cease being a candidate

contribute or refrain from contributing to any candidate, political party or political committee

render or refrain from rendering services to any candidate, political party or political committee

challenge or refrain from challenging a person offering to vote

apply or refrain from applying for an absentee ballot

sign or refrain from signing a prospective petition or an initiative, referendum, recall or candidate nominating petition.

“Undue influence” under this statute means “force, violence, restraint or the threat of it, inflicting injury, damage, harm, loss of employment or other loss or the threat of it, or giving or promising to give money, employment or other thing of value.”

Still have questions about dealing with politics in the workplace?

For more information about preparing your workplace for election season, check out your state-specific handbook. We also recommend signing up for our weekly, light-hearted employment law newsletter, the HR Update. Click here to sign up.

Ask the Experts: I-9, W-9, E-Verify and more!

erick — Wed, 29 Jul 2015 13:41:08 +0000

These questions and answers are excerpts from our webinar on 6/9/15, “Avoid ICE knocking on Your Door: I-9 E-Verify and Immigration Compliance,” which was presented by Julie Pace of the Cavanagh Law Firm. You can watch the entire webinar these questions and answers came from HERE.

Q: “If we complete an audit and realize that we have blank spots that the employee did not complete with an “n/a,” should we leave it or go back to the employee to write the n/a in the box?”

Julie: “Avoid blank spaces and put a dash to show it was not skipped. I would avoid ‘N/A.’ Use a dash instead. A dash does not disrupt the scans and it shows you thought about it, it wasn’t available, and that’s how you thought it out.”

Q: “If someone puts in their birth date into the current date area and crosses it out, should they initial or just fill out a new form?”

Julie: “Let’s look at section 1 of the I-9 Form. Let’s say the person wrote their birth date wrong or wrote it backwards. You have to do it in a certain format of (mm/dd/yyyy). Let’s say you’re proofing it and they did it backwards. They can actually strike through with a straight line, you can have the employee do that. So, a single strike through so it’s legible the agents can read it and they don’t see anything covered up. Then write the new date below it and then date it, and initial it. And if you correct I-9’s after the person has worked there, that would be something to have the employee sign, initial, and date it in that same little box to show when they altered it. If it’s a new hire, you just start over – you can shred the first one and move on from it.”

Q: “Could you please explain why it is important for a new employee to complete a W-9 along with a W-4?”

Julie: “Employers cannot specify which documents employees use. Employees may choose not to show you a Social Security card. As an employer, we want to have something to verify what we’re relying on for their Social Security number. The W-9 really helps to show good faith in immigration compliance and it also helps you with the IRS. If you end up paying someone who’s not in our workforce, and it turns out that is not their Social Security number, it goes into the unapplied earnings, then the IRS can target companies for penalties over that financially. They can’t really do that if you have a W-9 signed. It’s a very easy form to get signed with the W-4, right at the time you’re hiring people and they just sign it as an individual. They cannot put a Taxpayer ID number on there because the IRS does give people who are undocumented a (TIN) so they can file their taxes, but they can’t do that to work for you, they must put their Social Security Number.”

Q: “If they are presenting a list A document for the I-9, why would we require a W-9?”

Julie: “Because the I-9 Form is solely for the federal government and it’s only their form. It cannot be given to contractors, or companies that say, ‘Show me your I-9 to do business with me,’ or to state law enforcement, state employment agencies, who all make these mistakes.

The W-9 is designed for the IRS, for law enforcement inquiries, and also we use it with ICE that we are showing good faith and that we are paying underthe correct Social Security Number, since Social Security numbers are the most abused out there. And we do not necessarily want a copy of the Social Security card, because they’re counterfeited enough to where an agent would say, ‘Hey, you should have known this was counterfeited. Now that you have a photocopy of that document, we’re going to target you for it.’ The W-9 is a very effective tool for when a police officer comes by and says, ‘Hey, I need some documents to show for identity theft.’ Your response can be, ‘I can’t give you an I-9 form, but I can give you a W-9 and a W-4 that were signed, and we’ll move on.’ ”

Q: “Can't you use the Social Security Database check to help with verification?”

Julie: “I would not recommend that. That used to be an old program, the SSNDS, it’s kind of fraught with problems, first of all. The government views it that the Social Security card and number is not an immigration document. So, if it comes back that it doesn’t match, there’s 17.1% of people who don’t match their name and social; they’re still perfectly legal to work. The problem is you get into a bind where you are getting information from the Social Security database that says it doesn’t match and then what do you do with it? Now you’re starting to go down that path of constructive knowledge by ICE that says, ok, you took the extra step to check that database and now that you’ve checked it, now we think you should have know or done something further about it. And yet, you’re not allowed to fire them and theirs case law that says if you do, you can be targeted for back wages and damages because it is not an immigration database.”

Q: “What do we do with the W-9 besides just having it?”

Julie: “Just put it in your regular personnel files. You’re not allowed to put I-9 forms with your personnel files, but you’re absolutely allowed to put W-9’s with your personnel files, so that’s the easiest way.”

Q: “What if my state doesn’t have a driver’s license issuing authority?”

Julie: “In some states, driver’s licenses don’t have an issuing authority, and you just have to look at the card and it will show. For example, the state of Arizona doesn’t have one, but if you look at the card and it says Arizona, you can put ‘State of Arizona’ or ‘AZ DL’ and that’s fine.”

Q: “Is it ok for the employer to type up the I-9 and have the employee review and sign or MUST the employee fill the form out?”

Julie: “We used to do that in the old days, but I wouldn’t today. I know it’s faster, but if you’re in a high risk industry, I wouldn’t do it. I’d let the employee do it in their own handwriting, especially if you’re in a high risk industry. Until we get a legal status program through congress, and get some immigration reform done, police officers and ICE agents may target the HR person and say the manager was helping them in making up the information, so they could get the worker. We want it in their own handwriting so they can’t target you.”

Q: “Is it okay to have the new hire fill out the I-9 prior to the first scheduled day of work?”

Julie: “Yes, you may do that. That helps a lot, because they can fill it out, the date they start is later, and you’re getting all of your ducks in a row ahead of time. So no problem about that, a lot of people do that, good choice.”

Q: “Should you have employees fill out new I-9s periodically or should they only be completed at time of hire?”

Julie: “You’re prohibited, generally from having I-9’s completed after someone starts, unless you’re doing an audit and you see a mistake, and you realize something needs to be done. It’s supposed to be done once at the time of hire and not looked at, unless you’re doing an internal audit.”

Q: “We have seasonal employees that only work in the summer. Do I need to re-verify if they are classified as seasonal employees?”

Julie: “If someone’s rehired within three years after the original I-9 is completed: employers may complete Section 3 of the original Form I-9 after verifying that Section 1 information is still accurate. If it’s more than three years after the I-9, you just complete a new I-9. If you previously completed section 3, you can complete a new I-9. And some people just do I-9’s everytime an employee comes in, so keep that in mind as well.”

Q: “Can you fire someone if they give you false documents?”

Julie: “Sure, if you find out that someone is not legal to work, you absolutely can let them go. You just say, ‘We do things by the book, we’re immigration compliant, we’re sorry, that’s the way it is and we’re going to have to separate your employment.’ ”

Q: “If you’ve always retained photocopies of documents, should you get rid of those?”

Julie: “If you’re not under a government audit now, you can audit your I-9’s get them up to speed and follow your retention rules and do that as of today.”

Q: “Do you have to sign up for E-verify?”

Julie: “In some states, we do a lot of federal government contract work. So for Davis-Bacon and contractors, you do have to sign up for E-verify for federal contract work. So, there’s some states where it’s required and some states, it’s voluntary.

You can watch the entire webinar these questions and answers came from HERE. Find out more about our Employment Verification Guide, authored by Julie Pace, HERE. It focuses in depth on I-9, E-Verify and Immigration compliance.

Termination Series: Communicating the reason for discharge

lisahein — Tue, 23 Jun 2015 13:31:10 +0000

Do employers need to provide a reason to a discharged employee?

Federal law does not require employers to provide terminated employees with a written explanation for their discharge. However, many states have litigation in place that calls for an employer to provide documentation outlining the reason for termination. This is a called a service letter, and some state laws decree that you give this to the employee immediately upon termination while others only require a service letter to be issued upon an employee’s request.

Be honest and succinct

Regardless of state law, it is usually a good idea to let an employee know why they are being terminated and to keep a record of this information. When conducting a termination, you should honestly state the reason for discharge. The explanation should be factual and brief. In some cases, an employer’s failure to state the true reason for the termination or stating reasons inconsistently has been considered evidence of bad faith or discrimination.

Note:

Don’t try to avoid difficult discharge decisions by classifying the discharge as a “layoff.” Calling a discharge a layoff can be dangerous if a true layoff did not occur as the error may be enough for a reasonable juror to determine the employer’s reason is a pretext for discrimination.

Steer clear of defamation

Avoid giving defamatory or derogatory reasons for termination. This means you should be sure to not communicate a statement to the employee that may injure his or her reputation, especially if the statement may not be factual. A defamation claim typically is comprised of the following:

a false and defamatory statement (a statement that injures the reputation or community standing of another person or discourages others from associating with that person)
concerning the plaintiff
that is “published” or communicated to a third party
with fault amounting to at least negligence (some states have not required a showing of fault or negligence if the plaintiff is a private person and the defendant is not a member of the media)
and
with proof of damages or a presumption of damages to the plaintiff as a matter of law.

An ex-employee may bring a defamation claim if an employer gives information to prospective employers without a release. However, employers should also be aware that a subsequent employer could possibly sue the former employer for negligent referral if the employee commits the same type of wrongful conduct she or he committed at the previous job. Careful consideration should be given to any communication regarding the reason for the termination.

If the reason for discharge is documented, the documented reason must be the same reason that was stated to the discharged employee in the event that the employee files for wrongful termination. In the event that the termination involves a complicated matter, you may wish to seek legal counsel before drafting a separation notice.

Looking for more details about the termination process?

Check out our Hiring, Firing and Discipline for Employers guide, authored by the expert attorneys at FordHarrison. You can also check out the requirements specific to where you live by visiting our homepage here and selecting the options for your state.

Avoiding penalties under the Affordable Care Act

jeff — Fri, 22 May 2015 15:26:02 +0000

The Affordable Care Act (ACA) has been around since 2010 but it is still relatively new to a lot of people, including employers. For employers, it’s really important to be ahead of the curve when it comes to labor law to avoid possibly hefty fines and penalties. So here’s a run-down of the Section 4980H (the “Play-or-Pay” mandate), recordkeeping requirements, and the possible penalties for violating the ACA.

What is the Section 4980H–Employer ‘Play-or-Pay’ Mandate?

As added by the ACA, section 4980H of the Internal Revenue Code requires that all “large” employers (those with 50 or more employees) must provide health care coverage that meets minimum essential benefits requirements to all full-time employees and their children or pay a penalty. The coverage must provide the minimum value to plan participants and must be affordable.

The “minimum value” standard is a health plan that can pay at least 60% of the total cost of medical services for a standard population. The coverage is considered “affordable” – as it relates to the premium tax credit – if the employee’s share of the annual premium for the lowest priced self-only plan is no greater than 9.56% of the annual household income.

What are the requirements for large employers?

All “large” employers are those with 50 or more employees. They must provide the minimum essential coverage (MEC) to at least 70% of their full-time employees (and their children). For determining coverage of the ACA, “employee” is defined either as:

an employee who works 30 or more hours per week
or
a “full-time equivalent” employee, which is counted by dividing the total number of monthly hours worked by part-time employees by 120.

“Part-time” employees are counted towards determining ACA coverage, but are not included for purposes of the “Play-or-Pay” penalties.

Are there any requirements for smaller employers?

Small employers, those with fewer than 50 full-time equivalent employees, are not subject to the “Play-or-Pay” mandate. In order to encourage small employers to offer medical insurance, the ACA provides tax credit to qualifying small employers. To be eligible for a credit, the employer must pay at least 50% of employee health care coverage. Additionally, to be eligible for the credit, a small employer must:

have no more than 25 full-time equivalent employees
and
pay an average wage of less than $50,000 per year.

However, the maximum credit will only be available to employers that:

have 10 or fewer full-time equivalent employees
and
pay an average wage of less than $25,000 per year.

What are the recordkeeping requirements?

The ACA requires employers and/or health insurance issuers to report the IRS information about employer-sponsored health coverage. The Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) is to be used to report the required information with respect to each covered employee, and Form 1094-C is used to transmit the 1095-C return to the IRS. The IRS will use these forms to determine whether the employer owes a penalty under Section 4980-H.

What are the possible penalties for violating Section 4980-H?

Large employers could face two types of penalties, depending on whether or not they choose to offer health care coverage to employees. The two separate penalties are:

Do not offer coverage
Large employers that do not offer coverage and have at least one full-time employee receiving a premium tax credit from the government under the ACA must pay a penalty of $2,000 per full-time employee (excluding the first 30 full-time employees).
and
Do offer coverage
Large employers that do not offer coverage, but have at least one full-time employee receiving a premium tax credit und the ACA because the employer offers coverage that does not meet the “minimum value” or is “affordable,” must pay the lesser of $3,000 per employee receiving a premium credit or $2,000 per full-time employee.

Looking for more details about the Affordable Care Act?

For more information about ACA provisions and future mandates, check out Employee Benefits – An Employer’s Guide as well as your state-specific handbook. We also recommend signing up for our weekly light-hearted employment newsletter, the HR Update. Click here to sign up.

Interview with attorneys at Kastner Westman & Wilkins

lisahein — Wed, 10 Dec 2014 21:03:21 +0000

Kastner Westman & Wilkins recently took over our Ohio Human Resources Library. We’re excited to be working with them, and we think you should be too! Keep reading to learn a little more about this amazing Akron-based firm:

1. Tell us about Kastner Westman & Wilkins, LLC:

Kastner Westman & Wilkins is an Akron, Ohio-based boutique labor and employment law firm of 12 attorneys, representing management exclusively. It was formed in 2000. KWW attorneys provide comprehensive counsel on labor and employment law issues, including benefits, workers’ compensation and HR management for their clients, which include public, private, and non-profit entities of all types and sizes.

2. Who works on the Ohio Human Resources Library?

Thomas Evan Green and Amanda Smith served as the primary authors, with Kenneth Haneline and Mark Snyder providing additional support.

3. How do you think the Ohio Human Resources Library benefits readers?

Ohio law, as it pertains to managing employees, is constantly changing, and with that we view the Ohio Human Resources Manual as a timely, effective reference guide for situations that arise in the workplace. It’s appropriate for small business owners and human resources professionals alike, regardless of their experience, and covers dozens of topics in great detail – yet it’s written in a manner that’s easy to understand and act upon.

4. What do you think is the biggest issue employers face currently in employment law?

The biggest employment law-related issue facing employers is keeping up with change. Whether it’s following and complying with changing federal, state and local laws; understanding how the proliferation of electronic devices and social media platforms impacts the workplace; or managing provisions within the Affordable Care Act that apply to their businesses, staying current on employment law issues and knowing when to seek outside counsel are among the most critical issues employers face.

5. Finally, to get to know you better, we want to know: What do you like on your pizza?

While we share many common professional interests in the vein of labor and employment law, our taste in pizza toppings is all over the map.

Thomas Evan Green: “When my wife is out of town, onions.”

Amanda Smith: “Onions, mushrooms, banana peppers, and garlic sauce. It also keeps vampires away.”

Kenneth Haneline: “Sausage, pepperoni, peppers, onions, and diced baked potato (good for any Irish folks!)”

Mark Snyder: “Buffalo style chicken and blue cheese.”

Interivew with Fiona Ong

shannon — Mon, 08 Sep 2014 15:01:28 +0000

1. Tell us about Shawe Rosenthal:

Shawe Rosenthal LLP specializes in representing and advising management in employment and labor issues. We represent employers throughout the United States in federal and state courts, before the EEOC, NLRB, DOL, and other administrative agencies, as well as in arbitrations and mediations. Our clients range from Fortune 100 companies to smaller businesses and non-profits in a wide range of industries. Our practice includes both litigation and preventive measures. We place great emphasis on providing effective and efficient advocacy, responsive client service, and sound practical advice. Our firm and attorneys have been recognized as leaders in this field by such organizations as the College of Labor and Employment Fellows, Chambers USA, Best Lawyers, and Super Lawyers.

2. Who works on the Maryland Human Resources Manual and the Model Policies and Forms for Maryland Employers?

Over the years, a number of our attorneys have contributed significantly to these publications, including Mark J. Swerdlin, who served as the Editor for many years. This year, it was my pleasure to take over for Mark, and I was responsible for this year’s revisions.

3. How do you think the Maryland Human Resources Manual and the Model Policies and Forms for Maryland Employers benefits readers?

These publications provide Maryland employers with a comprehensive and practical overview of applicable federal and state laws. The Manual serves as a guide to the panoply of HR compliance issues and concerns facing employers in this state. The Model Policies and Forms are a useful and thoughtful resource for employers seeking to implement a wide range of policies and procedures.

4. What do you think is the biggest issue employers face currently in employment law?

There is a multi-pronged effort at all levels of government – federal, state and local – to change the legal environment with regard to traditional labor and employment law, without real consideration of the practical effects on businesses. We are seeing states and cities pursuing minimum wage increases and ban the box legislation, as well as new forms of paid leave. Under President Obama’s administration, the Equal Employment Opportunity Commission has issued new and aggressive guidance documents that expand the parameters of settled law on pregnancy discrimination and criminal background checks, the Department of Labor has been directed to issue new regulations intended to increase the number of workers entitled to overtime pay, and the National Labor Relations Board is challenging standard and long-standing employer practices and policies as violations of the National Labor Relations Act. I think that staying on top of all the changes to the laws and regulations, and dealing with the (unintended) consequences of these changes, is the biggest issue that employers are facing at this time.

5. Finally, to get to know you better, we want to know: What do you like on your pizza?

Pepperoni and mushroom!

Favorite HR sites

shannon — Mon, 01 Sep 2014 19:58:01 +0000

When it comes to employment law, staying up to date with the latest law updates and best practices can seem like a full-time job, and a boring one at that! We like to keep current with the latest HR happenings by routinely checking a few blogs and websites. Each website offers a different perspective or delivery on HR that keeps us entertained AND informed, a task that can be a tall order when it comes to the sometimes dry world of employment law. Check out a few of our favorite resources here.

TLNT.com

If Buzzfeed's list format is your jam, this is the HR site for you. With a variety of best practice articles, webinars, and some fun graphics, TLNT keeps learning about employment law fun and fresh. Plus it's updated often and the articles are a quick read, perfect for when you need a five minute break from that stack of I-9 forms.

Fistfuloftalent.com

A snarky, biting round up of articles from industry pros on management and recruiting, Fistful of Talent ain't your mamas HR site. With loads of videos, podcasts, and even Wu-Tang themed articles, this site is definitely the sexier approach to employment law. We like to read it to remind ourselves that HR can be fun and modern, and that it's not just FMLA leave and worker's compensation claims.

payscale.com

Though it's not all about the Benjamins on this pay-focused site, the main focus is certainly on a salary database that offers averages of pay for roles with the ability to adjust based on experience and location. Additonally the site hosts some great original articles with a uniquely casual point of view, as they are usually not written by lawyers. A great resource to reference during pay negotions or the job description writing phase.

wage-hour.net

If you are way into the whole "Law & Order" thing this wage-focused blog from our buds at Fisher Phillips is for you. The blog takes a more case-by-case approach (see what we did there?) to employment law, examining the latest court findings and reflecting on their importance in the larger HR landscape. The experts at Fisher & Phillips do an excellent job of explaining the legal background of each case and what you need to know going forward.

socialmediaemploymentlawblog.com

If there is one thing we love reading about on the Internet, it's the Internet! This social media focused blog from the labor law gurus at Cozen O'Connor tracks the overlap of social media and employment law – an area that seems to be shifting day by day. For those Cliffs Notes fans out there "the employer take away" is pure gold.

Everyday People: sbrownehr.com

Putting the HUMAN back in Human Resources. Written by Steve Browne, and HR vet and all-around optimist. His long essays on the soul of employment will leave you feeling a renewed energy for connecting with staff on a person-to-person basis.

Interview with attorney J. Hagood Tighe

shannon — Tue, 05 Aug 2014 03:05:57 +0000

1. Tell us about Fisher & Phillips:

Fisher & Phillips is a national labor and employment law firm representing management side only. We have over 30 offices across the country. We pride ourselves on providing proactive and practical advice (as demonstrated by the Reference Guide), but we also handle employment litigation when it arises. Additionally, our firm has a significant traditional labor practice, representing companies in union avoidance campaigns, collective bargaining, and contact administration.

2. Who works on the South Carolina Employment Law Reference Guide?

This is really a team effort coordinated by my assistant, Suzanne King. She has it down to a science. We have a team of lawyers each year who review and update a group of chapters in their areas of practice. This year, the attorneys involved included Cheryl Behymer, Michael Carrouth, Matt Korn, Reyburn Lominack, Karen Luchka Wingo, Fred Manning, Steve Mitchell, Jon Pearson, Edward Rawl, George Reeves, Bill Wright, and myself.

3. How do you think the South Carolina Employment Law Reference Guide benefits readers?

This is a great resource that helps managers and HR professional be sure they are spotting the issues. Every year, the law changes, develops, expands, etc. This allows employers keep on top of the latest developments to be sure they are doing all that is required of them. And, most importantly, it helps them be good employers.

4. What do you think is the biggest issue employers face currently in employment law?

This is a tough question. There are so many issues. But, I would say one of the biggest issues is the EEOC’s focus on systemic discrimination. I say this because this is discrimination that is NOT intentional. Instead, it results from a facially neutral policy or practice, usually implemented with good intentions, but that has the unintended result of affecting one or more protected classes. This is hard for employers because it is not easy to spot and correct, even for the most sophisticated HR professionals.

5. Finally, to get to know you better, we want to know: What do you like on your pizza?

Not on my pizza – with my pizza. A nice glass of red wine please.

Nepotism: Favoring relatives and friends in the workplace

shannon — Tue, 05 Aug 2014 00:57:37 +0000

It is not unusual for multiple members of a family to work for the same employer. However, such situations can be troublesome if the family members are in a superior-subordinate relationship because:

the relationship may give rise to favoritism or to suspicions of it
the subordinate family member takes advantage of the situation by not working as hard or by not following the orders of the superior family member
the superior family member cannot or will not control the activities of the subordinate (including administering discipline when needed or offering constructive criticism on performance evaluations).

It sometimes happens that employees in a superior-subordinate relationship marry during the employment. Employers generally allow both parties to remain with the company unless there is no open position to which one of the employees may be moved. However, it is important to address such situations on a case-by-case basis to avoid gender discrimination claims.

In hiring

The recruitment of current employees’ relatives tends to perpetuate the racial, religious and ethnic characteristics of the existing workforce. Therefore, nepotistic recruiting may be discriminatory where the current workforce is predominantly or exclusively of one race, religion or ethnic group.

Policies against nepotism

Anti-nepotism policies prevent related individuals from working in the same company or department. Employers choosing to adopt such a policy should state that cases concerning the employment of relatives will be dealt with on a case-by-case basis to ensure maximum flexibility in handling such situations. Also, the policy should contain an explanation of why the employer discourages the employment of relatives and should describe the circumstances and types of relationships covered by the policy. The employer might also include a list of circumstances and relationships that would be permitted by the policy.

There are a number of sound reasons for anti-nepotism rules and “no fraternization” policies including:

avoiding involvement in emotional problems at the home
avoiding supervisory conflicts between spouses and relatives
avoiding hiring decisions based on favoritism or the appearance of favoritism
avoiding vacation and day off scheduling problems
avoiding family influence regarding grievances and work conflicts.

Title VII does not prohibit discrimination on the basis of marital status. However, many state laws prohibit employers from discriminating based on marital status.

A thoughtful “anti-nepotism” policy should allow the employment of family members while avoiding the common operational issues associated with such situations.

Sample anti-nepotism policy

ABC Company welcomes the opportunity to hire and retain qualified employees who are related to one another by blood or marriage. However, since such relationships sometimes can create problems in the workplace, including suspicions of favoritism if the related employees are in a supervisor-subordinate relationship, it is the policy of ABC that:

Any employee of ABC who has or acquires a familial relationship (as defined below) with another employee shall not have any direct or indirect administrative or operational authority over the other person. This prohibition means not only that a person cannot supervise a family member but also that the family member cannot be in that person's chain of command; for example, a family member cannot work in a department in which a family member is the Vice President.
An employee of ABC cannot use his/her authority or position with ABC to benefit or to disadvantage another employee in a familial relationship. Although all such potential misuses of authority cannot be listed here, examples include an employee signing an evaluation for a family member or signing/approving a check payable to a family member.
Employees are required to notify the company’s Human Resources Department of (a) any existing familial relationships; (b) any familial relationships that are created among employees (for example, by the marriage of two employees); and (c) the potential employment by ABC of a family member.
ABC will refuse to hire a job applicant who is in a familial relationship with a current employee if the applicant would be in a supervisory or subordinate position to the existing employee. ABC employees who marry one another during their employment will be allowed to remain with the company unless they are in a superior-subordinate relationship and there is no open position to which one of them may be moved.
“Familial relationship” within the meaning of this policy means two employees (or an employee and a job applicant) in the relationship of husband, wife, father, mother, brother, sister, son, daughter, uncle, aunt, nephew, niece, grandfather, grandmother, grandson or granddaughter, or any of those relationships arising as a result of marriage (for example, brother-in-law).

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Interoffice romance

shannon — Mon, 09 Jun 2014 21:08:39 +0000

A recent poll shows that over 40% of Americans have dated a coworker, making the topic of inter-office romance pretty hard to ignore. While you may be glad that your staff is finding happiness, there are several serious issues that can be brought up when employees start dating and employers should be sure to protect themselves.

Protecting against harassment

One of the biggest concerns with inter-office relationships is harassment. Employers should have a clear anti-harassment policy in place that outlines what behavior is acceptable and unacceptable. Such policies should clearly state that employees are safe from retaliation if they come forth with any harassment claims.

Non-fraternization policies
One option for employers is to completely prohibit relationships at work in order to reduce the risk of sexual harassment and related claims by instituting a "non-fraternization" policy. However, these policies can have negative effects as well. Most likely employees will continue to have relationships and employers won’t have the opportunity to lessen the possible negative results. Also such a strict policy is bad for employee morale as it makes the employer seem overbearing.

Subordinates and managers
Office romances are also problematic when an employee in a position of power dates a subordinate. If the relationship sours, allegations of retaliation or harassment could be made. Even if the relationship goes well, other employees may say the supervisor is showing favoritism. Employers should consider a policy against such relationships, or one that requires employees to disclose these relationships and sign agreements for solutions for if the relationship becomes problematic (i.e. one employee would be transferred).

Love contracts
A consensual relationship agreement, sometimes called a love contract, is a written document signed by two employees in a consensual relationship acknowledging the relationship is voluntary. These disclosures usually contain a reminder of the company's harassment, discrimination, and retaliation policies, as well as a clear acknowledgment that the relationship is consensual. These forms are a good way for employers to remind employees of their policies and protect themselves from future lawsuits.

Prohibiting inappropriate workplace conduct

No matter your stance on inner-office dating, employers should have policies in place outlawing certain behaviors that can make other employees uncomfortable and lead to harassment charges. Employers should have policies which clearly state:

no overt displays of affection at work, including kissing or hand-holding
work communications systems are to be used for work only – no personal email or voice mail using working time or company equipment
employees must behave professionally and in a business-like manner while at work or all company functions
romantic squabbles should be left outside of the workplace.

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