That’s all it took for both parties in both houses of Congress to work together, along with the White House and President Trump, to pass important relief legislation for American workers. We need more cooperation like this to see our country thru this crisis.
Last evening, President Trump signed the Families First Coronavirus Response Act. Employers only have until April 2 to implement the law’s required 12 weeks (10 weeks paid) family leave for school- and childcare-related coronavirus absences, and 80 hours of paid coronavirus-related sick pay.
Employers are going to need policies, and procedures, and forms, and paid leave management tools and training. And it’s all going to be very new for the smallest of employers, whose resources are already stretched thin.
Is this law perfect? Not by a long shot. For starters, it doesn’t apply to the largest of employers who can afford to pay for this leave, and it offers little in the way of relief to the smallest of employers who can’t. It has other holes as well. It leaves too many employees unprotected and too many types of leave uncovered.
That said, it’s a start, and it’s more than I would have hoped for if you would asked me about it just one week ago.
Employers, here’s the thing. This law is a floor, not a ceiling. It is solely within your power to do right by your employees. Let them work remotely if possible. Pay them if and while you can if they are ill, or under quarantine, or with a child who can no longer attend school. If you have to lay employees off, let them collect their unused vacation and other paid time off (even if you have a policy that says otherwise or the law doesn’t require it). And seriously consider severance pay, or better, funding their COBRA payments for a period of time so they don’t lose needed health insurance, and do it without a release agreement.
I said this a few days ago, and it bears repeating again (and likely again, and again, and again). How we act over the next few months will define who we are as a nation and what we will look like when we come out on the other side. Please, think about this as you make decisions about your employees. We all have lots of difficult choices to make over the coming days, weeks, and months, but I am URGING compassion and flexibility if at all possible. What we do now will have a long-lasting effect on our country, whatever this country looks like when this crisis is over.
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The basics of what employers can do to address the coronavirus is to allow employees to work from home and make sure they can access and afford the health care they need, said Elise Gould, senior economist at the Economic Policy Institute.
While many employers may be concerned about their bottom line and the loss of productivity, the reality is that loss will be even greater if employees come in sick, potentially with the coronavirus, Gould said. Passing this virus onto coworkers and the public is not good for the bottom line.
Some research about the flu shows that employees having more sick days is linked to reduced contagion, she said. With the coronavirus, “it’s time to do that. It’s not even a big, bold thing to think about, giving people paid sick days when they’re sick. It is a smart move,” she said.
“The United States is unprepared for the COVID-19 pandemic given that many workers throughout the economy will have financial difficulty in following the CDC’s recommendations to stay home and seek medical care if they think they’ve become infected,” she wrote. “Millions of U.S. workers and their families don’t have access to health insurance, and only 30 percent of the lowest paid workers have the ability to earn paid sick days — workers who typically have lots of contact with the public and aren’t able to work from home.”
“We know that national paid sick time is realistic in the sense that many industrialized countries provide for it,” said said Janie Schulman, partner in global law firm Morrison & Foerster’s Employment + Labor group. However, “mandatory paid benefits in the U.S. have been and continue to be a politically divisive issue.”
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Also, in the U.S., there is always a question as to which matters are reserved to the states and which may be legislated at a federal level, she said. While the federal government has yet to enact a paid sick leave law, several states and some cities have done so in recent years.
“It remains to be seen whether the COVID-19 outbreak will create a paradigm shift at the federal level,” Schulman said.
With employees staying home, one key issue that organizations have to deal with now is employee absenteeism, said Roberta J. Witty, research vice president at Gartner, Risk and Security Management Programs. They have to understand what their mission-critical business services are and determine how to staff them if they have a high-absenteeism rate. This may be done through cross-training, moving work from one location to another or other kinds or workload balancing.
“For those business services where a face-to-face interaction is required, you might have to shut down some of those services due to best practices regarding controlling infection between people as outlined by the CDC,” Witty said. “Also, there may be a hard decision to be made – what is the minimum percentage of your volume you can support with a degraded workforce, and then shut down if you go below that level.”
Businesses, like individuals, must cooperate in our generally accepted social contract that requires each of us to do our part in trying to limit the spread of disease for the overall public good, Schulman said.
“[We have already seen businesses around the country step up and do more than they are legally required to do,” Schulman said “Many of the steps we have seen businesses take in the past few weeks are not mandated by law, but rather demonstrate the proactive efforts of businesses to limit the spread of the coronavirus (COVID-19) to protect their employees and the public.”
These steps include encouraging remote work, cancelling large public events, offering extra paid sick leave and limiting visitors coming to company premises, she said.
Many of these tough calls will undoubtedly hurt businesses’ bottom line and affect productivity, revenue, profits, and stock price and may interfere with relationships with customers and vendors, she said. In many of these cases, companies are weighing the costs of these short-term sacrifices against the potential long-term harm that would occur if they did not take these steps.
One effective best practice some companies are following is creating a pandemic team or crisis management team, said Tracy Billows, chair of law firm Seyfarth’s Chicago office Labor & Employment department. Team members — which include individuals from many departments including HR, legal, health and safety, security, operations and finance — work together to create a holistic strategy.
A pandemic team should also include the COO or CEO to give the team the leadership needed to and to ensure the committee is acting consistently with the company’s culture, policies and expectations, Billows said.
Even companies with crisis management plans in place already may have a need for a committee.
“I’ve worked with employers who have had pandemic plans and emergency response plans for years and, to be frank, they’re all updating them for this. The old rules are out the door. This is new. This is different. This is not the same thing we’ve dealt with before,” Billows said.
Companies should be responsive to any Centers for Disease Control and Prevention updates as well as local or state public health guideline updates, she said.
“It’s important that employers show that they are staying up-to-date on the latest and update their policies and protocols accordingly,” she said. “It can feel like you need a dedicated team just to do that, but those who are doing so are being successful at it.”
To learn more about the recent legislation around COVID-19 and what it means to your organization, register for our free webinar, What HR Needs to Know about Coronavirus.
There has been exponential growth in the field of crisis management over the last several years. Crises are understood to have the long-term potential to change the way an organization operates, sometimes threatening its survival or fundamentally changing its stakeholder relationships.
Crisis management, accordingly, helps organizations survive these events. Gone are the days when crises were limited to emergencies and disasters that left a physical impact on an organization. Now included are so-called “soft crises” that may not result in physical damage but nonetheless have a lasting impact on a company’s brand, reputation and employee morale. Here are ways that the chief human resources officer and legal counsel work together to see crises to successful ends.
Crises are typically unplanned, are hard to manage and unpredictable. Experienced leaders, including CHROs, know they will happen, but the who, what, where, why and when are normally unknown. Consider how your organization would deal with these events (all based on real crises):
1. Your chief executive officer, who has overseen a period of marked profitability, is caught in a consensual relationship with an employee that reports to her. Your company has a policy that prohibits such relationships.
2. In the wake of a New York Times story about your company paying millions of dollars in exit packages to male executives accused of sexual harassment, thousands of your employees around the world walk off the job in protest.
3. Two of your employees who are responsible for preparing fast food upload a video on social media showing one of them doing vile things to the food in one of your kitchens.
Legal counsel is a vital crisis management partner for HR.
Events like these pressure-test an employer’s crisis management readiness. They pose serious risks, such as loss of consumer, retailer and investor confidence; government fines and sanctions; recalls, litigation and claims; loss of employee morale and focus; and in some cases, high turnover. The value of crisis management is to minimize these and other negative outcomes. The end goal is business sustainability.
Managed effectively, crises require leadership teams to do several things carefully and with deliberate speed:
1. Detect that the incident has reached crisis status, determine its severity, and communicate quickly and transparently with stakeholders, both external and internal.
2. Investigate the matter thoroughly to understand the cause, disclosure obligations, and other responsibilities the organization may have.
3. Take steps to contain the damage from the crisis and prevent its immediate recurrence;
4. Start the process of business recovery.
5. Learn how to prevent the next crisis of this type — stakeholders may forgive the company’s first crisis but they rarely forgive the second of a similar nature.
So, what roles should CHROs play in this process? During thedetection and initial response phase, if a crisis is by nature an HR issue, CHROs should work closely with the company’s counsel. Together, they will understand how a problem impacts internal stakeholders, know the policies that are intended to address the problem and be the most familiar with how those policies have been enforced enterprise-wide. Hopefully, they will have helped establish and refine the HR component of the company’s crisis management plan, including identifying triggers that turn an incident into a real crisis, giving the company a helpful head-start when the crisis hits.
Even if the issue is not an HR problem, CHROs are needed to provide an initial response to employees, as they will know the most effective ways to reach hundreds or thousands of employees at or near the same time.
For crises that are triggered by events like a government subpoena or pre-dawn raid, preparation is key. Working with company counsel, CHROs will know what can and cannot be ethically communicated to employees in the initial response phase.
For example, while companies can never tell employees to refrain from speaking with the government, they should always inform employees about their rights if the government approaches them for a voluntary interview. Understanding the difference between the two is important.
During the investigationphase, if the crisis is primarily an HR issue, the CHRO should work with the company’s crisis management team leader (often the CEO or COO) and its counsel to quickly understand the problem — how it happened, who is responsible, and whether any company protocols or controls were bypassed. If the problem is the result of the actions of one employee or a small group of employees, the CHRO and legal team must assess supervisor and managerial responsibility — did they know about the employee’s actions, did they profit from them, and, if they didn’t know about them, should they have known?
In the containment and damage control phase, CHROs will play a pivotal role in deciding employee corrective actions and working on extended internal communications with employees. When the crisis is especially severe, CHROs are also central in retaining talent and helping employees who are facing hardships because their jobs are impacted. This phase may require CHROs to work with the company’s legal team to manage employee litigation and respond to regulator scrutiny.
During business recovery, many employees may experience a range of emotions, including fear, shock, panic, anger, hopelessness and trauma. They will need help getting back on their feet and CHROs have an important role in helping them get there. CHROs can facilitate internal discussions addressing employee sentiment, creating safe spaces where employees can openly express their feelings and still go back to remaining productive employees. In this phase, CHROs will also serve as stewards over needed cultural improvements.
Lastly, in the learning phase, CHROs should play a leading role in determining how to prevent similar HR crises in the future. Here, a deeper root cause analysis is important. How did the problem happen, did the controls work as the company intended, and if not, why not?
Even if the crisis was not an HR problem, CHROs should still lead the assessment of how to mitigate the effects of future crises on the company’s employees.
In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.
1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?
2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?
3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?
4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?
5. What about self-employed people? What relief is there for us?
6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?
Let me try to answer each as best as I can, understanding that there are no clear answers to any of this, and these issues are difficult and quickly developing and changing.
1. Small Businesses There is no doubt that paid family and sick leave will impose a huge burden on the smallest of employers, especially since the only financial relief in the bill, the 100% tax credit for sick leave wages paid, is not a dollar-for-dollar match and only offers deferred relief.There is one provision in the bill, however, that may offer some help in the most extreme of circumstances.
The Secretary of Labor shall have the authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of section 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern.
This means that if the Secretary of Labor takes this up, he could issue regulations that would permit the smallest of businesses (under 50 employees) to claim an exemption if paid leave “would jeopardize the viability of the business as a going concern.”
Also note that under the same provisions, the Secretary of Labor could also pass regulations “to exclude certain health care providers and emergency responders,” meaning that these vital employees might not receive any paid FMLA or paid sick leave.
Stay tuned to see if this happens once this bill passes.
Finally, late last night, the Treasury Secretary announced that employers will be able to use cash deposited with the IRS to pay sick-leave wages, and for businesses without sufficient taxes from which to draw, the Treasury would make advances available.
Paying sick workers to stay at home is both good policy and good politics. Why not pass a bill that required all employers to provide paid sick leave and then force Republicans to explain their objections to the public?
The bill does require some employers to provide full-time workers with up to 10 days of paid leave. But the requirement does not apply to the nation’s largest employers — companies with 500 or more workers, who together employ roughly 54 percent of all workers.
All I can say is stay tuned. This coverage choice could be altered by the Senate when they take up this bill early this week, or it could be fixed by an entirely different piece of legislation. Or it can remain as-is, making the policy decision that large employers should offer these benefits without a government mandate. As the op-ed points out, according to federal statistics approximately 86 percent of employees at big companies already receive get some kind of paid sick leave. What I’d like to hear from Congress is why this 500-employee line was drawn? Was it a policy choice, the result of big-business lobbying, or with the knowledge that other legislation is on the way to close this loophole?
3. Paid FMLA vs. Paid Sick Leave. There is a lot of uncertainly as to how the FFCRA’s paid-leave provisions interact with each other, but here’s my best read. The paid sick leave provision provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for COVID-19-related absences. The paid FMLA provision provides paid leave at two-thirds of an employee’s regular rate of pay for the number of hours the employee otherwise would have worked for the duration of a COVID-19-related FMLA leave, but the first 14 days of such leave can be unpaid. I’d expect most to substitute and run concurrently the paid sick leave during the initial unpaid portion of FMLA. Thus, the first 10 days of a COVID-19 leave will be paid at 100 percent of the employee’s regular rate as paid sick leave, and the remaining 10 weeks will be paid a two-thirds of an employee’s regular rate as paid FMLA. When an employer drafts or revises FMLA and paid sick leave policies, it should account for this overlap. Finally, please don’t forget about paid sick leave laws in your state or locality, which also might have something to add on this issue.
4. Non-profits. I actually have some good news to share here. The tax credit offered by the FFCRA is against social security taxes, which, unless I misunderstand (and I’m not a tax lawyer), non-profits still pay on their employees. So, the tax credit provision will still off non-profit employers some future relief.
5. The self-employed. This is, perhaps, the biggest issue. While the number varies wildly, there are anywhere between 50 million and 75 million gig workers. That’s a whole lot of self-employed people that this bill does not touch. What are they supposed to do? How are they supposed to earn if the economy shuts down? I wish I had the answer, but I have no idea. It’s a huge gap and huge problem, and absent specific government relief, these people are really going to be struggling, probably for a long time. That said, the tax-relief provisions also seem to apply to the self-employed. So that’s something.
6. Closures.
If a company is forced to shut its doors because of COVID-19, the Worker Adjustment and Retraining Notification (WARN) Act might apply if your business is large enough. It applies to employers with 100 or more employees. It mandates 60 days’ advance written notice (or if no notice is given or can be given, 60 days’ pay in lieu of such notice) before a “plant closing” or “mass layoff.” Please note, though, that a mass layoff does not occur, and therefore WARN does not apply, if the layoff is expected to be for less than six months. Because most expect this crisis to subside in less than six months, WARN likely will not apply to coronavirus-related layoffs. It will still apply to a plant closure if your business is large enough to meet the 100-employee threshold.
Also, keep in mind that some states have their own mini-WARN laws (California, Illinois, Maryland, New Jersey, New York, Tennessee, and Wisconsin, for example) that provide greater coverage. Ohio does not.
Finally, state unemployment compensation is available to employees who suffer coronavirus-related job losses. Ohio, for example, Governor DeWine is issuing an executive order so that unemployment insurance immediately covers workers who are displaced, even temporarily, by coronavirus, which will include a waiver any waiting periods to qualify and of the requirement that an individual seek work to collect benefits.
These issues are quickly evolving. I’m doing my best to stay on top of them and get everyone information as quickly as I can. Stay tuned. It’s going to a difficult time for everyone between now and when this crisis ends.
If your business needs FMLA or sick leave policies drafted, reviewed, or revised for anticipated FFCRA compliance, please let me know.
COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our platform for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will gladly provide a personal, online walkthrough of our platform to help you get started.
Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.
The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).
Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”
Brede, a full-time member of Apple’s Genius Team at one of its Apple Stores, claimed that Apple fired him because he sought FMLA leave as in loco parentis to care for his niece and nephew because of his sister’s serious health condition. According to the court, Brede’s leave was not FMLA-covered.
The flaw in Brede’s FMLA claims on both theories is that … his requested leave to care for those children was not FMLA-qualifying. Brede does not allege that any of the minor children (who would be considered his daughter and sons under in loco parentis) are experiencing a “serious health condition” that requires his care. It is Brede’s sister that has the serious health condition. Even if Brede’s care of the children could be seen, by extension, as care for his sick sister (and Brede cites no legal authority for that proposition), the FMLA does not entitle an employee to take leave to care for a sibling with a serious health condition.
The Brede court got this issue 100% legally correct. Because the FMLA does not provide leave to care for siblings, it also does not provide leave to care for an ill sibling’s children.
In this time international medical crisis, however, let’s not lose sight of the fact that the FMLA is a floor, not a ceiling. Just because the law doesn’t require you to grant a leave of absence to an employee to care for the children of an ill sibling doesn’t mean that you can’t choose to offer such leave. As COVID-19 cases spread, employers are going to have to be nimble and flexible in their responses. The hypothetical spun from the Brede case is but one example of this necessary flexibility.
Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.
Robyn Smith worked as a community manager for apartment complexes. As part of her compensation, she lived rent-free on site.
Several years into her employment, Smith developed pseudotumor cerebri — a condition caused by spinal fluid pressure on the brain — the symptoms of which include migraines, blurred vision, vertigo, and short-term memory loss. She took several leaves of absence under the FMLA, all without incident.
Thereafter, a co-worker complained to management that Smith had been embezzling money by coding her gas and electric bills to vacant apartments. Following an investigation, Towne Properties fired her.
As it turned out, prior ownership had permitted Smith to have free utilities, a fact that no one had bothered to disclose to new ownership. Even after discovering its mistake, however, the company refused to reconsider its termination decision.
The appellate court concluded that the district court had properly dismissed Smith’s discrimination lawsuit. Why? Because, even though the employer’s reason for firing her turned out to be incorrect, it had an honest belief about it when it reached its decision.
To win on her claim, Smith must show (among other things) that Towne’s explanation for firing her was pretext for disability discrimination. In other words, that the neutral explanation is simply cover for a discriminatory motive. Smith can’t show a trialworthy dispute about pretext if Towne honestly believed that she was misappropriating utilities even if that belief turned out to be mistaken.
The court relied on the company’s investigation, including interviews of witnesses and review of documents, to conclude that “Towne made an informed decision based on specific facts.”
The “honest belief rule” is one of the most effective shields available to employers in discrimination cases. As long as the employer has an “honest belief” in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because, in reality, it is incorrect.
Yet, if you want to be able to argue that your honest belief justifies your decision, you must be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence developed in a thorough investigation, is best. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities. Smith v. Towne Properties Asset Management is a good roadmap for employers to follow in claiming the protections of this rule, in the event a decision later turns out to be mistaken.
The United States Center for Disease Control and Prevention has been closely monitoring the spread of coronavirus, a respiratory illness first detected in Wuhan, China. Now that the coronavirus has taken a deadly turn in the United States, many employers are looking for guidance as to how they may protect employees while continuing to adhere to their legal obligations in the workplace.
Here are some suggestions that employers may take to protect themselves and their employees.
Allow employees to work from home as a precaution
In January, the CDC confirmed that the virus may be spread through person-to-person contact. In light of this information and the understanding that the incubation period is between two and 14 days, employers should consider allowing employees concerned about possible exposure to work from home, to the extent practicable.
If remote work is not possible, employers could alternatively consider providing paid leave during that incubation period.
Consider alternatives to business trips
At the time of this publication, the CDC has issued a level 3 health travel notice — recommending that individuals avoid all unnecessary travel to China, Iran, South Korea and Italy. For those employers with employees traveling to any of these areas for business purposes, consider whether postponing or moving the location of the trip is a suitable alternative. Other options may include telephone and/or video conferencing.
Similarly, if an employee expresses concern about business travel to other affected areas, employers should consider reasonable alternatives, mindful of OSHA’s requirement that employers provide “a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to . . . employees.”
Assess risk on a case-by-case basis
With regard to those employees showing what could be early-stage coronavirus symptoms — which are similar to that of a cold — there is a risk of overreaction and business disruption if employers take a one-size-fits-all approach, requiring all employees with those types of symptoms to stay home.
Instead, employers should assess risk on a case-by-case basis and encourage employees to seek and follow professional medical advice in a manner consistent with the employer’s usual sick leave policies.
Similarly, employers should broach the topic of employees’ symptoms carefully as state and federal anti-discrimination laws limit medical inquiries by employers if doing so may reveal an employee’s disability. In light of these limitations, we recommend employers do what they can to ensure a healthy, safe working environment by encouraging any employees showing symptoms of the coronavirus to follow public health guidance and professional medical advice and by reminding employees about applicable human resources policies and procedures.
Take care to avoid discriminatory behavior or actions
An employer must be mindful of all its legal obligations, balancing the requirement to ensure a healthy and safe working environment with its concurrent obligation to maintain a working environment that is free from unlawful discrimination. For example, an employer should seek to avoid any stereotyping behavior by employees, such as inquiries related to the coronavirus that can be linked to an employee’s national origin. Such inquiries could result in claims of unlawful discrimination.
As another example, if an employee discloses their diagnosis with the virus, employers should work with them to determine what steps to take to prevent the spread to other employees in the workplace, as well as to enable the employee to recover and return to work. Options may include a remote work arrangement, paid or unpaid sick leave or another form of leave of absence.
Importantly, employers should ensure supervisors are trained to avoid overreaction and are informed about the applicable laws that restrict inquiries into the health status of employees. They should also be trained on the importance of adhering to company anti-discrimination policies (including avoiding stereotyping based on race, ethnicity, and national origin).
Communicate regularly
By regularly communicating with employees as to current policies and procedures for managing the virus, employers will be best equipped to balance their legal obligations. If, in accordance with CDC or local health official guidance, an employer decides that any employee showing symptoms of the virus will be encouraged to stay home until they are fever free, this should be communicated to all employees uniformly.
If an employee approaches management with specific questions, the employer should proceed with caution and avoid asking questions that may lead to the disclosure of an employee’s disability. Instead, the employer should focus on the employee’s job duties and what adjustments, if any, can be made to enable the employee to perform those duties.
Balance safety and legal compliance
Employers cannot prioritize OSHA health and safety requirements over state and federal privacy and anti-discrimination laws. The threat of the virus does not excuse the employer from its other legal obligations, and claims are bound to arise if an employer lets one of its responsibilities slip.
Please note that the above information is based upon what is presently known about the coronavirus. This is an ongoing issue and employers should remain informed of further updates from the CDC and other local public health officials.
If you’re Fox News reporter Brit Hume, you have a lot of explaining to do. Yesterday, the venerable journalist carelessly tweeted out his internet exploration of “Sexy Vixen Vinyl.”
Some would say Hume made an innocent mistake. Trying to share a story on updated election odds, he tweeted a photo of his screen forgetting about his list of open tabs. I’d say that the fact that he was looking at “Sexy Vixen Vinyl” at work eliminates any innocence in this mistake. That website simply has no place in the workplace, period.
That said, I can guarantee that Brit Hume is not the first employee in history to surf over to “Sexy Vixen Vinyl” on a work computer. This is as good a time as any, therefore, to review your “workplace pornography” policy. While you might not have this policy per se, you should have an “internet use” policy, which should address each of the following—
1. What does your internet-use policy say, does it include prohibitions against pornography, and does it sufficiently and clearly explain that violations will result in discipline, up to and including termination?
2. Do you block websites that might include adult material, or do you trust employees to their own devices? Keep in mind that if you opt for the latter, many adult websites are rife with malware, viruses, and other things that you likely don’t want on work equipment. Also keep in mind that if you opt for the former, you may need to provide for work-related exceptions (like an employment lawyer researching a case, and I speak from experience).
3. If you are overly concerned that your workplace is rife with porn, you could opt for a porn audit, examining all of your technology assets for inappropriate material.
4. Once you become aware of any pornography in the workplace, your obligation as an employer kicks in to promptly investigate and implement reasonable corrective action. Failure to act could subject you to a nasty and expensive sexual harassment lawsuit.
5. Finally, if your investigation leads you to believe that the pornography involves illegal activity (e.g., children), immediately stop and call your lawyer, as this is a serious issue that needs serious treatment.
Conventional FMLA wisdom had always been that if an eligible employee gave notice of a need for an FMLA-qualifying leave, the employer was required to designate the time off as FMLA. That wisdom changed, however, with the 9th Circuit’s 2014 decision in Escriba v. Foster Poultry Farms. Escriba held that the FMLA permits an employee to decline to take FMLA leave, even when the need is for an FMLA-qualified reason. No other circuit has followed Escriba (although the Northern District of Ohio did in 2015). Last year the Department of Labor published an opinion letter [pdf] that expressly rejected Escriba, restating the historically prevailing view that an employer cannot delay designating qualifying leave as FMLA leave, even if an employee asks it to do so.
Practically speaking, the denial of an FMLA-qualifying leave as FMLA-designed leave might be a no-harm/no-foul, as long as the employee does not lose any other rights in the process. If the employer permits the employee to take the leave as unpaid, restores the employee to the same or substantially similar job at the end of the unpaid leave, otherwise treats the employee as if they were on an FMLA leave, and does not retaliate against the employee, a refusal to designate qualifying leave as FMLA leave should not cause any legal issues. It’s no different than having a leave policy more generous than what the FMLA requires … it just grants extra leave on the front end instead of the back end.
Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.
If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.
According to NBC News, McCarrick claims that Amazon fired her after she complained to her supervisor about being made to scour the social media accounts of applicants to determine their race and gender.
McCarrick joined Amazon as a loss prevention manager in July 2018 and was promoted to a regional manager five months later, the suit says.
After her promotion, her supervisor instructed McCarrick to go through the social media profiles of job candidates “for the purpose of ascertaining race/ethnicity and gender,” according to the lawsuit.
In September, she submitted a written complaint raising her concerns about being told to scour applicants’ social media accounts…. Two months later, in November, she was called into a meeting with human resources and the director of loss prevention informing her that she was fired.
I am not going to begin to suggest that employers refrain from searching publicly available information on social media to help screen candidates. Social media can provide a treasure trove of information that could disqualify someone from employment. Wouldn’t you want to know, for example, if a prospective employee trashed a former employer, or shared a former employer’s confidential information, or posted racist comments?
What you cannot do, however, is use social media to screen candidates on the basis of race, gender, or any other protected class. This should be common sense, right? Right?
Robyn Smith worked as a community manager for apartment complexes. As part of her compensation, she lived rent-free on site.
