Our Social Media Posts This Week — Mar. 9-15, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 3/9/14 was about another instance of the NLRB invalidating a “no gossip at the water cooler” policy in a non-Union workplace. Actually, the policy said, “Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.” It went on to define “gossip” as including, in part, “talking about a person’s personal life when they are not present,” “talking about a person’s professional life without his/her supervisor present,” and “negative, or untrue, or disparaging comments or criticisms of another person or persons.” The policy was relied on in part to terminate someone’s employment. The NLRB found that the policy was too broad, as it could be construed so as to prohibit employees from discussing with co-workers discipline and other terms and conditions of employment. NOTE: because the policy was found unlawful, the discharge was invalidated under the NLRA, the employee was awarded back pay with interest, and the company had to post a notice prepared by the NLRB informing its employees about the labor law violation.

TAKEAWAY: All businesses are subject to the mandates of the NLRA. Make sure your company’s policies comply with the NLRA before the Board or a Court tells you otherwise.

On Monday 3/10/14, we talked about what (not) to include in personnel files. To start, there should absolutely be what we all think of as a “standard” file for each employee. Then open a second file too; put in that second file subjective information including, but not limited to, notes from the interview process, notes on the application or resume, and the like; reference checks or letters of reference; documents pertaining to criminal or other investigation of the employee; credit reports; immigration and naturalization information (I-9 Forms); documents/records relative to a medical condition, including drug test results; wage garnishments; photos of the employee, including driver’s license and passport; and EEO forms. Why is this second file a good idea? Because the information in it has nothing to do with job performance and separating it (and granting access only to those with a need to know) helps provide the employer with a potential defense against claims of discrimination based on information in that second file.

TAKEAWAY: Have separate personnel files for items relevant to job performance and those items not so relevant (but still important for an employer to have). Make decisions based only on job performance and pursuant to applicable law.

Next, Tuesday 3/11/14 brought a post about dyslexia being a disability under the ADA (and Dollar General learning that the expensive way). There, an employee asked for help during a mandatory test; the request was denied. The employee refused to continue taking the test without assistance, which resulted in his demotion (including fewer hours and lower pay). The EEOC sued on his behalf. What was the verdict? $40 for back pay and $47,460 for compensatory damages. Ouch – that’s a lot of dollars!

TAKEAWAY: Make sure those tasked with handling your company’s accommodation obligation under the ADA know what/who is covered and the contact information for your company’s employment attorney; leaving your employees floundering might put your business on the hook.

Wednesday 3/12/14 brought a snapshot about how much vacation employees get. We learned the average number of paid vacation days for employees with one year of service and for all employees in general based on a recent survey.

TAKEAWAY: Vacation is not required, but is a good selling point for a company and retention point for employees. Paid vacation can be standardized in your company’s Handbook and then varied by giving certain employees an employment agreement with different terms.

On Thursday 3/13/14, we talked about why your business should or should not have a Handbook. The author of the article suggests several reasons why he thinks one is not needed. On the other hand, I suggest that a Handbook, with general policies that form guidelines, is necessary to set ground rules for the benefit of the company and employees. To augment those general policies, the company should train its managers and HR personnel in enforcement of the policies.

TAKEAWAY: Talk to your employment attorney about why your company should or should not have a Handbook, and, if the decision is affirmative, put it in place and enforce it.

On Friday 3/14/14 we engaged in potty talk: whether excess trips to the potty can be counted as FMLA leave. The answer is “maybe”. First it must be established that there is a condition requiring or resulting in the potty breaks that qualifies for FMLA protection, and then determine what is medically required to enable the employee to perform his/her job (i.e., how much extra time off is needed for potty breaks outside of normal lunch and break periods). Since there is nothing in the FMLA to the contrary, an employer can count that extra time as FMLA leave.

TAKEAWAY: Employers must reasonably accommodate under the FMLA (and not retaliate against an employee making an FMLA claim). However, the employer is entitled to medical documentation and, if it receives no (or insufficient) information, can treat the excess breaks as an unprotected performance issue.

Finally, yesterday 3/15/14 brought a post about living in the future, not the past, by considering bankruptcy for yourself or your business (or both). Neither the author nor I suggest that bankruptcy is right for every person or business, but merely that it should be a consideration along with other options. Depending on the circumstances, it can be the right thing.

TAKEAWAY: Consult a bankruptcy attorney to discuss alternatives, including bankruptcy, to see which is right for you or your business and the best timing for whatever course of action you decide to take.


     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

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