A Risky Cocktail: Alcohol and an Employee Party

Tradition dictates year-end celebration and resolution. For an office’s annual party, should such a “celebration” include alcohol? If management’s answer is “yes,” then common sense ought to be applied to maximize the safety and well-being of all attending as well as the public. For example:

• Hold the event at a restaurant or other outside facility licensed to serve alcohol;
• Have a “no-host” bar with employees to buy their own alcohol (and with plentiful non-alcoholic drinks provided for free);
• If it’s to be an “open” bar, provide participants with a limited number of “drink tickets,” requiring them to purchase their own past that limit:
• Ensure a professional bartender is handling the purchases and distribution and has definite instructions on limiting service to the attendees;
• Serve food of course, thus avoiding the added intoxicating effect of an empty stomach;
• Serve food low in salt, avoiding the additional thirst potentially created;
• Hold the event within walking distance of the office and make arrangements for safe transportation home for anyone who needs it;
• Include a statement on the party invitation and/or circulate a written reminder to all concerned on the responsibilities to drink only in moderation and to avoid driving after imbibing; and
• Emphasize to management they are the example-setters at the event.

Another option would be to just not serve or provide the opportunity for alcohol at all while holding the event over a lunch time and with work to follow.

If you have any questions on employer liability in such circumstances, or on any other labor and employment matter, please contact us.

How Not to Interview a Potential Employee

In our expanding world of regulation and – right or wrong – of widening political correctness, interviewing job applicants can be a precarious adventure.

The federal Title VII of the Civil Rights Act of 1964 prohibits discriminatory hiring on the basis of race, color, religion, sex/gender and national origin. Other federal and state laws bar employment discrimination the basis of physical or mental disability, age (usually 40 years-of-age or over), sexual orientation, marital status, pregnancy, medical condition, veteran status and other criteria.

Questions deemed directed at discovering an applicant’s membership in any such “protected category” can later become possible evidence of an employer’s discriminatory intentions. Thus, while any of these “getting to know you” queries may seem perfectly innocent, each of them is a potential problem in the event of a later government investigation or lawsuit:

• Are you married? Divorced? Single? Engaged?
• Do you have children?
• Do you plan to start a family?
• Do you own a home? Rent?
• Are you a citizen?
• What country do you come from?
• What is your maiden name?
• When did you graduate from high school?
• Been sick lately?
• Get that scar in the military?
• What are you doing over Christmas?

Questions to prospects that are clearly aimed at determining actual qualifications for the position applied for are usually within the rules.

Ensuring you have job application forms that fall on the right side of the law is, of course, important. We offer such forms as well as customized guidance on employment screening, hiring, training, terminations and other related issues.

Whether you’re starting a business or it’s been some years since you reviewed and updated your company’s employment forms and policies, contact us to see how we can help.

Fired over Facebook Post – Labor Board Intervenes

The National Labor Relations Board has stepped in to defend a worker terminated over disparaging remarks she posted on Facebook about her supervisor.

The NLRB asserts that employer American Medical Response’s firing decision — as well as its policies prohibiting employees from writing about the company on social media sites — violate worker free speech rights, including freedoms to publicly discuss workplace conditions.

The Connecticut company has defended its actions: “The employee was fired because of multiple, serious complaints about her behavior. The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”

The NLRB’s complaint is scheduled to be heard by an administrative law judge in January, 2011.

For more, see Company Accused of Firing Over Facebook Post [NY Times]

Shorter Schedules Do Not Equal Shorter Legal Requirements

Whether your business is expanding or you are circling the wagons to weather an economic downturn, hiring part-time employees may be part of the game plan.

However, hiring for shortened hours or for fewer days does not absolve an employer from complying with the full range of workplace legal requirements applicable to the full-time workers. Indeed, management of part-time employees may take even greater attention to the wage and hour laws to avoid the pitfalls.

Question: For instance, under California’s labor law, would an employer have to provide one or more ten minute paid rest periods for an employee who only worked for three hours on a given day? How about a worker who put in four hours? Six? Six hours and five minutes?

Answer: It depends and it’s not necessarily simple. A California business must provide a rest period for “each four hours worked (or major portion thereof).” Thus:

● Three hours daily labor: no break required (did not work the minimum four hours);

● Four hours daily labor: one break required (since the worker reached the four hour minimum);

● Six hours daily labor: only one break required (since the worker reached the four hour minimum but not the major portion [more than half] of another four hour period); and

● Six hours and ten minutes daily labor: two breaks required (since the worker reached the four hour minimum and worked the major portion of another four hour period).

Your part-timers could also qualify for required unpaid meal periods, daily overtime, specific paycheck disclosures and other rules. Worker’s compensation and other standard employee requirements are givens, small business or large. Please give us a call with any questions.

For more information on California’s labor laws, visit the California Department of Industrial Relations website

Employee Termination the Right Way

Terminating an employee is never high on a manager’s fun list. No doubt, it can be a delicate task. Firing an employee the wrong way can lead to a nightmare of expensive accusation and counter-accusation, destroying workplace production and executive morale.

Prevention is key. Two recent articles cover the topic nicely:

Top 10 Employee Firing Mistakes (AllBusiness.com)

Not Legally Required, But Legally Recommended (California Employer Daily)

Have questions or observations about employee termination? Submit a comment and we’ll get back to you.

Office Holiday Survival Guide II: Respecting Employee Religious Practices

Christians and Jews hold far from a “monopoly” on December as a major holiday month. Here is your end-of-the-year interfaith and cultural diversity line-up for 2010 (to the degree we could determine with a few Google searches):

Dec 1: Suijin-Matsuri – Shinto

Dec 2-9: Hanukkah – Jewish

Dec 7: Al-Hijra (New Year) – Islam

Dec 8: Bodhi Day – Buddhism

Dec 8: Immaculate Conception of Mary – Catholic Christian

Dec 12: Feast day – Our Lady of Guadalupe – Catholic Christian

Dec 12: Advent Fast Begins – Orthodox Christian

Dec 16: Ashura – Islam

Dec 16-25: Posadas Navidenas – Hispanic Christian

Dec 21: Solstice (Yule) – Wicca/Pagan

Dec 25: Christmas – Christian

Dec 26: Death of Prophet Zarathushtra – Zoroastrian

Dec 26-Jan 1: Kwanza – African cultural celebration

Dec 31: Oharai – Shinto

Dec 31-Jan 4: Maidyarem Gahambar – Zoroastrian

We suppose the “rap” on California is that a large enough office is likely to employ not only members of every group named above, but multiplicity of adherents to other spiritual groups and their equivalents, falling just short of the Church of Monday Night Football. In this state as in all others, employers must be particularly keen in December to the proper fielding of religiously based requests for time away from the office.

Under the federal Civil Rights Act, the California Fair Employment and Housing Act, and the equivalent laws of other states, businesses must seek to “reasonably accommodate” an employee’s religious observances (including, by-the-way, the sincere parallel observances of atheists and agnostics) unless any feasible approval of the request for time off results in “undue economic hardship” for the company’s operations.

The law states that such “undue hardship” need only be more than “minimal” (Latin: de minimus). However, there is also the practical aspect. Denying a request, no matter how extensive the disruption to the employer, could lead to a discrimination claim if not handled properly.

Moral, just in time for the holidays: When an employer is in doubt on whether to grant a religiously based request to be exempted from any workplace activity, it’s time to consult with a labor law attorney.

California Employers’ Obligations

It has been said that death and taxes are the only two sure things in life but man, those people ought to cheer up. After all, you don’t even get to all that “death is inevitable” drivel without love (hopefully), sex (rock & roll optional), pregnancy and childhood. California supports the pregnancy part with some of the most protective workplace leave laws in the nation.

California’s Pregnancy Disability Leave (PDL) law requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.

Among other features:

● Employers may require a doctor’s written confirmation that the employee has become medically disabled due to a pregnancy—unable to perform her job duties—before granting such leave;

● Employers can also require the worker utilize any deserved sick pay during that leave;

● The pregnant worker can take that leave in increments or on a part time work schedule;

● Employers may transfer a pregnant woman who has requested a reduced work schedule to another position, as long as the employee’s benefits and pay remain the same and the position demands the same skill set; and

● Except in very limited circumstances, the employer must provide the worker her former position or an equivalent one on her return from leave.

The California Department of Fair Employment and Housing website states “all employers must provide information about pregnancy leave rights to their employees and post this information in a conspicuous place where employees tend to gather. Employers who provide employee handbooks must include information about pregnancy leave in the handbook.” The State of California issues a pamphlet it suggests can be used to provide the required pregnancy leave rights information to individual employees.

Most employment agreements typically contain an arbitration clause. This requires that any employment-related dispute that cannot be resolved by direct communication or other informal means is to be arbitrated instead of going to court. Arbitration is a form of private dispute resolution that takes the place of a lawsuit and court trial.

Arbitration has many business-related advantages, including a process much more efficient than the often-prolonged procedures of the courts. Thus, employers naturally favor this alternative. The key is ensuring the terms of the arbitration are enforceable.

Many employers make the mistake of providing an “arbitration clause” in employment applications or contracts without attention to the very specific requirements of California and/or other applicable law. If a court finds that the arbitration agreement is so one-sided in favor of the employer as to be “unconscionable” (i.e., there is no equal bargaining power, no meaningful choice and the terms are grossly unfair to the employee), the court can refuse to enforce the arbitration clause.

Moreover, the applicable California law on unconscionable arbitration agreements continues to change, with major Supreme Court decisions on the subject over the last several years.

Employee Discipline Policies

Then-New York Governor Teddy Roosevelt probably summed up politics, diplomacy, and personnel management with his line: “Speak softly and carry a big stick; you will go far.” Some suggestions:

● Management is Part of the Solution, Not the Problem – In the face of reported misconduct, a personnel manager should always proceed in a manner in which he or she could take pride later. It is possible the report is false, misleading, or otherwise in error. Investigation should be fair and forthright. Unless, it’s a matter of some overt, observed threat to safety, the accused should have the opportunity to respond fully to any accusation before a decision is made on consequences.

● Document, Document, Document: Document.

● Policies Should Allow Discretion on Discipline – Employment contracts and workplace policies that strictly define the procedures that must be followed and the consequences that must result from specific offenses are too restrictive for anyone’s good. While policy should supply standards of conduct and rules for reporting, investigation and handling of misconduct, policy should also provide management the discretion to deal fairly with situations on a case-by-case basis.

For example, a company policy that promises only a warning for any first offense may be a problem when an employee’s first misbehavior is embezzlement or violence against another worker.

● Consistent Handling of Reported Misconduct – Managers should strive to deal with similar situations similarly. If there are reasons why one employee received a harsher consequence than another for a similar offense, the reasons should be documented. See Document, Document, Document: Document section above.

Workplace discipline is never fun. It is even less so when management badly handles a matter, either too softly or too harshly. When in doubt, reach out. You usually can reach us at nearly the speed of light.