Employment Blog: Ireland Stapleton Pryor & Pascoe P.C.

Continuing on my discussion about dress codes, I now turn to the sticky issue of religious discrimination and, particularly, head coverings. Religious beliefs are entitled to protection under Title VII (the Federal Statue that prohibits discrimination in the workplace).

The term "religion" includes all aspects of religious observance and practice as well as belief, and the definition of a "sincerely held belief" includes atheists. Under Title VII, an employer must offer a reasonable accommodation to resolve a conflict between an employee's sincerely held belief and a condition of employment – including a dress code – unless the accommodation would create an undue hardship for the employer.

Whether a belief is "sincerely held" determines whether that belief is entitled to the protections of Title VII, and making that determination is "more often than not a difficult and delicate task." What does it even mean?; even judges struggle to answer that question.  A dress code that restricts employees' ability to wear hats or headdresses have a disparate impact on employees who hold certain sincerely held beliefs and observe those beliefs through their attire. If employers take adverse employment actions against employees because of their religious headdress, or unreasonably fail to accommodate an employee's religious observance or practice without undue hardships on the conduct of the employer's business, liability could result.

Despite this difficulty, courts remain willing to engage in the exercise of confirming that an employee has a "religious" or sincerely held belief, and that the headdress is actually protected religious expression under Title VII.

The cases on this issue run the spectrum of unpredictable to "did you make that up?"  For example, in McGlothin v. Jackson Municipal Separate School District, the court held that the discharged employee failed to establish that she wore African-style head wraps based upon her religious beliefs, and therefore failed to prove a violation of Title VII. Instead, the McGlothin court found that the employee's beliefs were "cultural." By contrast, a Washington state court held that it was discriminatory to refuse to promote a server to a more desirable shift because she wore a Muslim headdress.

In addition, an Ohio state court held that the Catholic Church discriminated against an employee by firing him for wearing a monk's hood without formal recognition from the church. The court held that the church failed to prove that allowing plaintiff to wear the hood presented an undue hardship. 

Even if appearance issues are directly tied to an employee's religion, an employer may be able to regulate headdresses to a certain extent. Safety concerns provide a good example of this exception. A New York court held that an employer may require all employees to wear hard hats, even if doing so interferes with an employee's religious expression or belief that requires wearing a headdress or other covering.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney.

This article may not be reprinted or reproduced in any manner without prior written permission of the author. Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

 

I know that I promised to post a series of blogs about dresscodes, and I will get back to that.  But, an interview on NPR started me thinking about gender in the workplace.  Consider these excerpts:

"A special report in this week's Time Magazine finds that American women have made huge strides in the workplace since those days. By years end, for example, women will make up more than half the workforce. That persistent wage gap is still there, but it's closed significantly. And Time's poll found more than three quarters of adults say that's good for both society and the economy.

...both men and women say their employers have not done enough to accommodate a world where 70 percent of American families have a working mom."

The statistics are interesting.  What do we do with them?  Should employers allow employees to work flexible schedules?  Increase paid leave to allow employees to deal with family issues?  What about employees without traditional families? Should they be allowed flexibility, too?

As an employer and a mother, I see both sides of this argument.  I have no answers.  Instead of pretending like I have it all figured out, I will urge you all, as HR professionals, employees and employers, to consider where we were and where we are, with the issue of gender in the workplace.  I will suggest that we have made strides, and that there is work yet to be done. 

If you'd like to read more, the Talk of the Nation interview is located here:

http://www.npr.org/templates/story/story.php?storyId=113939266&ft=1&f=1006

And the Time Magazine issue is located here:

http://www.time.com/time/specials/packages/completelist/0,29569,1930277,00.html

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

Identity theft is terrifying. The idea of someone using your information – Social Security numbers, addresses, etc. – to conduct business or move assets strikes fear in the heart of many.

Reclaiming a lost identity is exhausting, time consuming and expensive. For example, a survey prepared for the Federal Trade Commission found that 16 percent of victims of identity theft polled had to pay for some or all of the identity's thief's purchases. According to the survey, victims spend an average of 81 hours trying to undo the damage, and 28 percent of those polled had been unable to restore their identity despite spending more than a year trying to do so. How does this stress impact the workplace? HR records contain sensitive information, and its protection is of paramount importance. Social Security numbers, birthdates, the identity of family members, health information and other details provide fertile ground for hands]on and cyber identity thieves.

What can you do to protect your employees and your company from identity theft? Look at how and when you use employee Social Security numbers, especially when coupled with other information, i.e., name and address. In most situations, alternative identification descriptors could replace the use of SSNs. Pay particular attention to the use and storage of financial and HR systems and company intranets, as these systems are subject to attack by cyber villains. Review job descriptions and confirm which employees must have access to sensitive employee records information. Consider conducting ongoing background checks for those employees. Audit personal employee information currently maintained and determine if all data elements are absolutely essential for business or government reporting purposes. Eliminate any data that is not essential or is merely "nice to have." Shred outdated hard copy records that contain confidential employee information. And, by all means lock and secure all employee and applicant records and allow access only to those with a need to know.

What should you do if you become aware that sensitive employee information has been made available to employees who are not authorized to have it? The increase in identity theft crimes has resulted in the enactment of numerous state security breach notification laws. These laws generally do not distinguish between consumers and employees. Consequently, employers are wise to comply with these laws in the event that employee personal information is acquired by unauthorized individuals.

Colorado has a statute that governs an employer's responsibilities in the event of a breach of security regarding employees' personal information. This statute, C.R.S. § 6]1]716, is part of the Colorado Consumer Protection Act, and applies to incidents occurring on or after June 1, 2007. The statute provides that in the event of a breach of the security of the system, an employer must conduct a good faith investigation to determine the likelihood that personal information has been or will be misused. Unless the investigation determines that no such misuse has occurred or is likely to occur, the employer must notify the affected employees.

From this discussion, take away one thing: An ounce of prevention is worth a pound of cure with issues of sensitive information and identity theft.  

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article continues on a discussion started earlier this month, in my blog, on dress codes.

Now that you have a basic understanding of the ways in which a dress code might surface as evidence in litigation, you may be ready to throw in the towel and let employees wear pajamas to work. But, must you? Short answer: No, you may regulate employee dress. You may even have different policies for men and women. We'll start there.

Gender

It is generally accepted that dress codes may differentiate between men and women so long as they do not impose a heavier burden on one gender than the other. If the policy imposes a heavier burden or more restrictions on one sex or the other, courts look for additional information supporting a business justification for the policy. For example, courts agree that dress codes cannot generally require females to wear uniforms if males are not required to do so, if the employees are performing the same job.

After analyzing the burden posed by a gendered dress code policy, courts will look to whether the employer can articulate a legitimate business reason to justify the burden. If an employer can articulate a legitimate, nondiscriminatory reason, even a dress code that places a higher burden on one sex over the other may be upheld. For example, one state trial court upheld an enhanced dress code for female employees at a male inmate educational campus, due to the legitimate and nondiscriminatory (if somewhat paternalistic) justification that "provocative, revealing and inappropriate attire by females" would create an inherent security risk.

Makeup Policies

OK, so you can tell people what to wear. Can you tell them not to wear green eye shadow?

Courts seem to agree that employers may regulate female employee's makeup use. In Jespersen v. Harrah's Operating Co., the Ninth Circuit heard the complaint of a female bartender who was terminated for refusing to wear makeup. She sued under a theory of disparate treatment and disparate impact sex discrimination under Title VII. The Ninth Circuit found that Harrah's "required all bartenders, men and women, to wear the same uniform of black pants and white shirt, a bow tie, and comfortable black shoes. The standards also included grooming requirements that differed to some extent for men and women, requiring women to wear some facial makeup and not permitting men to wear any." Jespersen did not wear makeup on or off the job and testified in deposition that wearing makeup would conflict with her self-image and interfere with her ability to do her job. However, the Ninth Circuit found that Jesperson had failed to support a disparate impact, harassment or stereotype claim, explaining that "[g]rooming standards that appropriately differentiate between the genders are not facially discriminatory."

Conversely, in Wislocki-Goin v. Mears, the Seventh Circuit affirmed the termination of an employee for wearing excessive makeup and wearing her hair down in violation of a "Brooks Brothers look" dress code.

Transgender Status

What about transgender employees?

Though the Colorado Anti-Discrimination Act ("CADA") was amended in August 2007 to include protection for sexual orientation and transgender status, as of October 2009, Title VII does not list sexual orientation or transgender status among its protected classes. Cases such as Etsitty v. Utah Transit Authority, decided in 2007 by the Tenth Circuit, make clear that transgendered employees do not currently enjoy protection independent of other protections (such as race or national origin) under Title VII.

However, as stated by the Sixth Circuit, "[s]ex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender nonconformity." Employees have challenged dress codes as discriminating against transsexuals under the Title VII gender stereotyping theory first recognized in Price Waterhouse v. Hopkins, but their individual success has varied depending on the facts of each particular case.

Addressing the avenues for a transsexual to pursue claims under Title VII, though transgender status is not a protected class under Title VII, the Tenth Circuit quoted the Sixth Circuit when it held, "[J]ust as an employer who discriminates against women for not wearing dresses or makeup is engaging in sex discrimination under the rationale of Price Waterhouse, 'employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.'"

What does this mean? It probably means that, if you adopt a gendered dress code policy, that you must allow the employee to dress according with the gender with which they identify, and may not require them to dress according to their birth gender. But, as the cases in this area are few and far between, and as courts have not yet grappled with the CADA amendments, we should sit tight and stay tuned on this one.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

As a company, you act through the people who represent you – your employees – regulation of employee appearance is typically a matter of business necessity. Traditionally, employers regulated employee appearance through required uniforms and dress code policies. Dress codes provided a laundry list of items of clothing considered appropriate and those that were not. Tube tops and spaghetti straps were relegated to the fashion "don't" category, while suits were elevated to the "do" category. But the advent of "casual Friday" and "business casual" brought with it dress code confusion. The increased popularity of piercings, tattoos, colorful hair dye and more diverse cultural dress has all but made traditional ideas about appropriate dress, and in some instances, dress codes themselves, obsolete. Employers are now faced with previously uncontemplated appearance issues, and taking their dress code policies back to the drawing board.

This challenge – the desire of employees to express themselves through their appearance – leaves human resource directors, business owners and attorneys terrified to put pen to paper. An examination of recent cases validates their fear, and reveals the many ways in which a dress code might make its way to center stage before a jury. Of interest in these cases are both the complaints lodged and the ways that dress codes are used in litigation. Once the areas of risk are identified, and with the legal theories behind them in mind, employers may begin construction or evaluation of a suitable appearance policy.

Dress codes become evidence in lawsuits in several ways - as evidence of discrimination or harassment (i.e. prohibiting employees who hold religious beliefs to wear head coverings, while allowing others to wear baseball hats on game day), stereotype claims (i.e. requiring women to dress in a "feminine" way) and/or as evidence of a disparate impact (i.e. an appearance policy that expressly prohibits dreadlocks, cornrows or other hairstyles that could have a disparate impact on employees of certain races/national origins).

How would your dress code hold up? Can you articulate legitimate business reasons for all of your requirements? Perhaps now would be a good time to take a look at your policy.

This blog post will be the first in a series to explore the do's and don't's of regulating employee appearance.  Future blog posts will address policies that try to regulate: tattoos, piercings, odor, weight, hairstyles, head coverings, "tight" clothes and other aspects of appearance and dress.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

When I visit a client site, I often ask nosey questions. "What does that person do?" "Do they have a job description?" "Would they laugh out loud if they read it?" "How are their wages calculated?" Sometimes, these questions are answered with conviction. Other times, they are answered with a sound that sort of starts out with an "ahhhhh" and ends with a "mmmmm?" This sound means "I don't have an answer to that question, but I am desperate to give you the right answer. I'm thinking. Don't bother me."

After discussion, we sometimes uncover a task that must be completed (Mental note: prepare accurate job descriptions.) Other times, we identify an opportunity for education (The FLSA cares about exempt vs. non-exempt status, not whether you pay an employee with a salary or with hourly wages). All too often, this inquiry identifies that management is trying to take the easy way out. It identifies the (occasionally dreaded) INDEPENDENT CONTRACTOR.

Why is it appealing to hire independent contractors? Because if you hire independent contractors, you avoid a certain amount of paperwork and hassle. That plumber that comes to fix your sink? She is an independent contractor. That project manager that works along side your employee project managers? He's an employee in independent contractor's clothing.

The unfortunate reality is that independent contractors are born not made. Said another way, you do not decide whether an able soul is an independent contractor or an employee, the IRS, Department of Labor and an assortment of statutes do.

Independent contractors who are really employees can cause trouble:

• They are entitled to unemployment benefits;
• They can make claims for overtime;
• They can sue you under Title VII;
• They can cause tax liability; and
• They can be very, very difficult to deal with.

One reason to care: In June 2009, Governor Ritter signed Colorado HB1310 into law, effective immediately. It imposes a fine of $5,000 per misclassified employee, which could increase to $25,000 for subsequent offense.

Don't get me wrong, independent contractors are great. Some of my best friends of independent contractors. But, if you choose to use them to accomplish your company's mission, you need to be sure that you do so correctly. Take the time to review Colorado's definition of what an "independent contractor" is, and confirm that you are following the rules. (E.g. http://www.coworkforce.com/dwc/whatis/employerwhatis.asp#independentcontractor). If you are, great. If you are not, review your structure and take the time to correct any errors.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

Assembling a good team is crucial to the success of an organization. As the economy stabilizes and more employees are brought on board in your organization, you would be wise to consider the composition of your workforce and assess its make up. Do you have the right people in your organization and are they doing the “right” things?

One tool available to employers in making employment decisions brings us back to grade school: TESTS!

If you decide to use tests in your workforce, consider the following:

• Selection and administration of tests should be done deliberately, by trained managers. Haphazard use can be trouble.
• Select tests that have been validated by research.
• Consider what you will learn from the test – will you discover necessary information, or unnecessary protected information?
• Determine what you will do with the information learned before you have it. This process will ensure that you only dig out information that is truly useful to business missions that you can articulate.
• Any tests that has an adverse impact on one group or another (i.e., on employees who are over 40 or certain racial minorities, etc.) should immediately be discontinued.
• With all tests, provide reasonable accommodation to those employees with disabilities.

As with any tool, tests are only as effective as they are methodically applied. With guidelines and mindful application, testing can be a great resource. Used recklessly, they can result in “keep my card…call me!” legal liability.

Find the EEOC Guidance on testing at http://www.eeoc.gov/policy/docs/factemployment_procedures.html

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

The list of protected classes under Title VII (the Federal law that prohibits discrimination in employment) does not, on its face, spell out every claim that could be brought by a disgruntled employee. I say this because the facts that give rise to a discrimination claim are rarely clear cut. Rarely does a claim cross my desk with facts like these: "I was fired. In my exit interview, they told me it was because I was a woman over 40." Instead, the stories that I hear are steeped in real life, human messiness.

One interesting group of claims that the Equal Employment Opportunity Commission (EEOC) is focusing on are dubbed "caregiving" discrimination claims. In 2007, the EEOC issued enforcement guidance addressing disparate treatment of workers with caregiving responsibilities. In May 2009, the EEOC supplemented the guidance with additional recommendations for employers' best practices.

A caregiving discrimination claim can take many forms. Consider these facts:

• Tim and Jane apply for a position. Both mention their families in their interviews: Jane has small children, and Tim's elderly mother lives with him. The employer asks Jane about her child care arrangements, but does not ask Tim about how he will do the job while caring for his ailing parent. The employer offers the position to Tim because of a fear that Jane won't be able to work occasionally unscheduled hours, because she will need to leave to pick up her kids from child care.
• Bob applies for paternity leave because he and his wife are adopting a baby. Sue applies for maternity leave because she is going to give birth. They apply to different managers, but Sue's request is granted, Bob's is denied. Bob is told that he should "focus on his career" as the sole breadwinner.

In the first example, the employer made an employment decision based upon an assumption about Jane's ability to perform her duties. In the second, Bob's request was denied because of his gender and judgments about what his priorities should be. Both decisions probably created unintended liability.

The claims that arise from this particular form of discrimination are varied and, at times, unexpected. The 2007 guidance outlines several potential claims, including disparate treatment of female caregivers as compared with male caregivers, unlawful gender stereotyping of working women including benevolent stereotyping, pregnancy discrimination, discrimination against male caregivers or women of color, and unlawful caregiver stereotyping under the Americans with Disabilities Act. Other claims could include discrimination or retaliation claims under the Family and Medical Leave Act.

Consider the following steps that you could take to avoid unintended liability:

• Create policies that educate and guide managers.
• Help employees identify stereotypes about caregivers that could lead to unintended discrimination.
• Focus interviews on the applicant's ability to do a particular job, not their actual or perceived inability.
• Create thorough job descriptions that clearly identify the essential functions of the job to facilitate application and promotion procedures.
• Document the entire employment process - from application, through performance and separation.
• Evaluate the necessity/feasibility of overtime, leave, flex time and other workplace options.
• Identify a point person to work on and with leave and family responsibilities issues.
• Communicate clearly about schedules, bending expectations when appropriate and necessary.

Find the EEOC Guidance at www.eeoc.gov/policy/docs/caregiving.html and www.eeoc.gov/policy/docs/caregiver-best-practices.html

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

Effective August 3, 2009, the Colorado Anti-Discrimination Act (CADA) was amended to include sexual orientation and transgender status in its list of protected classes.

That means that covered employers may not make employment decisions based upon an employee’s sexual orientation or transgender status (in addition to membership in other, previously listed protected classes).   The amendment does not mean that an employee who is gay, a lesbian, bisexual or transgender is immune from discipline or termination or enjoys special status.  Rather, that they may not be hired, fired, disciplined (or disciplined more harshly than other, heterosexual employees), etc. based upon their orientation or status.  Sexual orientation and transgender status may not play a role in these decisions.

In my experience, whenever transgender status comes up, two questions leap to the forefront: What about bathrooms? What about a dress code?    

Although we have not yet seen any cases interpreting this amendment, and will probably not see any for quite some time, the Colorado Department of Regulatory Agencies (DORA) published a guide that may provide some insight into the way that a Court may interpret the new provisions.  That brochure is found on the Internet at http://www.dora.state.co.us/Civil-Rights/Sexual_Orientation/SexualOrientationEmploymentFAQBrochure.pdf

Based upon State and Federal law, and this brochure interpreting the new amendments, we speculate that employees who are transgendered may be held to a dress code.  To the extent that a dress code is gendered, they may be held to the dress code that applies to their transgendered gender (the gender with which they identify) not their birth gender.  Similarly, employers may have gendered restrooms, and the employee may use the restroom associated with the restroom assigned to the gender with which they identify, not their birth gender. 

In many ways, this law is very simple. In others, it is complicated.  Transgender status challenges many of us, because it is not something with which we are personally familiar.  In situations like this, compassion, education and sound legal advice are important tools to avoiding unintended liability.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

On August 14, 2009, The Tenth Circuit Court of Appeals (the Federal appellate court that reviews Federal claims for the State of Colorado) issued an opinion that addressed an interference claim under the Family and Medical Leave Act ("FMLA"). (Case No. 08-4034). An FMLA interference claim makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA.

As the 10th Circuit explained, "[u]nder this theory, a denial, interference, or restraint of FMLA rights is a violation regardless of the employer's intent." This case hinged on whether the plaintiff's termination was "related-to" her taking leave.

How does this decision impact Colorado employers? Because some things happen with unfortunate timing. Sometimes employers need to let employee's go, before, during or after a leave. If you find yourself in that situation, how can you evaluate the risk associated with what you "must" do? What would a judge or jury look at to determine whether the termination was related-to the employee's leave?

Here are a few things that the 10th Circuit mentioned in this opinion:

• Timing. Did the termination take place while the employee was on leave?
• He Said She Said. What did the employer tell third parites parties the employee's separation?
• Personnel File. What do the performance reviews say? If the employer asserts that the employee was a poor performer, do the reviews support that?
• The Dreaded Emails. What emails lurk in the computers of those who made the decision? Do they extol the virtues of the employee, or support that s/he was terminated because of their absence? Or, do they show that the employee was terminated because they really didn't do the job?
• Policies. What do your policies say? Did you follow them when you terminated the employee, or did you violate them, suggesting an ulterior motive?
• Contemporaneous Documentation. As employment attorneys like to chant, "document document document." Are there documents that support your (the employer's) view of the world? Did you conduct an investigation? Was it biased or conducted by a third party?

Court decisions provide a road map for one particular set of facts. They are not always analogous to your situation, but they can serve as cautionary tales. And they can provide great insight into how a judge or jury would evaluate YOUR quandary.

Sometimes, we need to do what we need to do. But, before you sign the memorandum, before you send the email, it is best to understand the level of risk associated with your decision.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

The National Labor Relations Act ("NLRA") grants employees' certain rights to organize and interact in a unionized or unionizing environment. As the majority of private employers in Colorado are not unionized, this law is oft ignored. It was not until the advertisements started running on the Employee Free Choice Act and until Governor Ritter signed the "Wage Transparency Act" in 2008 that private employers started sitting up and taking notice about the impact of those laws on their policies that regulate employee interaction.

First, let's talk about what each of these laws does. They are by no means the only laws that regulate employee fraternization (i.e. Colorado's lawful off-duty conduct statute, among others), but they are a good place to start.

The Wage Transparency Act prohibits employers from taking any adverse employment action in situations where an employee "inquire[s] about, disclose[s], compare[s], or otherwise discuss[es]" compensation. The Wage Transparency Act also forbids employers from requiring employees to sign non-disclosure or confidentiality agreements limiting employees' right to discuss openly the pay they receive.

The National Labor Relations Act protects employees' (Section 7) rights of "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives or their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection..."

Huh?

What do these laws mean and how do they apply to you? The Wage Transparency Act does as it appears to do, and prohibits employers from restricting employees' ability to discuss wages. Pay close attention to confidentiality agreements that may be drafted too broadly.

How does the NLRA come into the non-union/unionizing workplace? Consider common handbook provisions that regulate employees' ability to discuss trade secrets, employees' rights to participate in chat rooms, restrict the ability to date, solicit donations to charity, or their right to talk to whatever supervisor they'd like about whatever grievance they may have. All of these policies may be written in a logical way, designed to minimize chaos. But, if they also give a "reasonable employee" the idea that he or she may not speak to coworkers about an issue that falls under the broad umbrella of "mutual aid or protection" then they may violate the NLRA.

In light of the increased attention to non-unionized employees' rights under the NLRA (and its second cousin, the Wage Transparency Act), employers would be wise to review their policies and be sure that employees do not get the wrong idea. It is one thing to tell your employees that they may not tell outsiders the secret formula. It quite another to tell them that they may not meet and discuss issues that they are having at work.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

My legal partner / fellow employment law nerd Michelle Ferguson and I have been talking about the importance of HR policies that guide what employees can do and can’t do with their Blackberry, Palm or cell phone.   True story. 

Why is a blackberry policy important?  Because if your employees are driving down I-25 and they get into an accident and seriously hurt someone (or themselves) while they are talking and/or texting on a phone that you provided to them, bad things could happen to your company… and your insurance policy… and your legal budget.  Not to mention the injured person.

Any argument that employers did not know about the dangers of texting and driving vanished this summer.  HB09-1094 was signed by the Governor on June 1, 2009.  Entitled “Misuse of a wireless telephone” it provides, in essence, two things:

• People who are 18 or older shall not text while driving; and
• People who are under 18 shall not use a cell phone at all while driving.

The penalties for violating this statute include fines and the confiscation of the cell phone. And if you have employees in different states, beware that some states have much tighter restrictions on use of a cell phone while driving.

When you craft your policy (because, after reading this blog I am sure you will rush right out and work on one), you should consider the following:

• When may an employee use a work-issued cell phone?
• What purposes are permissible?
• What restrictions will you place on use of a cell phone?
• Will you require use of hands-free devices or prohibit talking and driving completely?
• To what uses and when may an employee put his or her own cell phone?
• What will you do to monitor an employee’s use?
• Are there other states' laws you with which you must comply?

Other things to consider in addition to potential liability for injuries is the impact work-issued blackberries and other mobile devices may have on an employee's taxes (under debate by the IRS right now!) and whether an employee's off-hour use of work-issued mobile devices that have Internet/Email functions impact wages and rights and responsibilities under the FLSA.  If an employee accesses his/her email on Sunday, and works for a bit, then the employee likely must be paid for this time.

You also may want to include in your policy a reference to your anti-harassment/discrimination policy, your trade secret policy and your electronic media / social networking policy. 

As with all things, the most difficult thing is getting started.  While policies like these might feel a bit like briar rabbit’s briar patch (the more you try the more stuck you are – the more you draft the more convoluted they become), with time they take shape.  And, given the potential clarity and protection they could lend to your organization, I submit that they are worth the effort.

 

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C.  In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

 

Effective August 5, 2008, Colorado employers with one or more employees were required to provide certain accommodations to nursing mothers (C.R.S. 8-13.5-101).

From informal polls (taken by me over coffee with friends who are also working moms) the only thing less glamorous than being a working mom is, perhaps, being a working nursing mom.

What does this statute mean to employers?

As an employer, if you take the time to work with a woman in this situation, you will gain the loyalty of an (usually exhausted, occasionally embarrassed) employee. Which begs the question: Do you have a policy? It has been almost a year since the law went into effect, yet most Colorado employers have yet to address this requirement. It’s awkward, at best, but a clear policy makes difficult situations easier to deal with.

So, what should your policy address? It should address whether the break time used will be paid or unpaid. It should address whether the time will be meal time, break time or both. Consider whether your employees are allowed to work while on this break time (because if they are allowed to work and they are non-exempt, then the break time must be paid under the FLSA). Employers must make "reasonable efforts" to provide a room, close to the work area, for the employee to express breast milk in private. That room may not be a toilet stall. Employers need not adopt a policy that creates an "undue hardship. Whether something is an undue hardship takes into account the size, financial resources and the nature of the business, and also takes into consideration special circumstances of public safety.

One employer with which I am familiar has a "pumping room." That room has a computer complete with Internet, a comfy chair and, most importantly, a lock. Employees (most exempt from the FLSA) may express in privacy and productivity.

Resources are available for employers and employees on the Department of Labor's website: http://www.coworkforce.com/LAB/nursingmothers.asp

 

lhazen@irelandstapleton.com or by phone at 303-623-2700.

 

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at

Facebook posts the following statistics about its users:

 

More than 200 million active users

More than 100 million users log on to Facebook at least once each day

More than two-thirds of Facebook users are outside of college

The fastest growing demographic is those 35 years old and older

 

http://www.facebook.com/press/info.php?statistics

Facebook is growing so rapidly that (and I make this leap, along with other quasi-reliable internet sources) rumors of 400 MySpace layoffs are rampant.

What do these statistics mean for you, as an employer? It means that now is the time to re-evaluate your social networking policies.  Lawyer posts are always replete with disclaimers and find print. Should your employees' posts be, too?

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Do your employees have facebook pages?  If they do (and I guarantee you that some of them do), consider protecting your company's trademarked name from abuse on Facebook.  Starting June 13 Facebook users can change their URL to a name.  Even yours. 

In light of recent cases, you would be wise to suspect that employees are gathering to talk about your practices.  Might they use your name to identify a cyber gathering place?  And if the page is "invitation only" can you do anything about it?

In one suit in New Jersey, Brian Pietrylo filed suit against Houston's Restaurant for, he argues, accessing a MySpace page message forum for employees of the restaurant.  Pietrylo argues that management inappropriately accessed the "invitation only" chat room and spied on employees.  The case has not yet gone to trial, but employers would be wise to watch its progress.

What should employers do?  First, seek information on your own Facebook URL (particularly if you have a corporate Facebook page).  The link for users to get information regarding registering their URLs is: http://www.facebook.com/help.php?page=896.  Only those who joined Facebook before June 9, 2009 can register a URL on June 13; everyone else must wait until June 28 (to avoid "name squatting" -  people joining Facebook just for the purpose of grabbing a URL)  

And, perhaps more importantly, consider protecting your trademarked name from use by employees or others.  The link for information about protecting registered trademarks is: http://www.facebook.com/help/contact.php?show_form=username_rights

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.