Monthly Archives: May 2014

WV’S HIGH COURT UPHOLDS STATE PUBLIC POLICY VIOLATION FOR FIRED EMPLOYEE WHO REFUSED TO RETALIATE AGAINST A CO-WORKER WHO FILED HIS OWN DISCRIMINATION CLAIM

As West Virginia employers are undoubtedly aware, there is a cause of action in the state commonly known as a “Harless claim” for wrongful discharge when an employee can show that his or her discharge contravenes some substantial public policy of the State of West Virginia.  In Brown v. City of Montgomery, et al., the West Virginia Supreme Court of Appeals recently issued a decision holding that it is a violation of a substantial public policy for an employer to fire an employee for refusing to retaliate against another employee who has filed a discrimination claim against the employer. 

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THE NLRB’S CONCLUDES THAT COLLEGE FOOTBALL PLAYERS ARE EMPLOYEES UNDER THE NLRA

In the movie “Little Giants,” the type cast nerd devises a play he calls “The Annexation of Puerto Rico.”  It turns out to be nothing more than the old fumblerooski – a play which, as run in the movie, is actually illegal (as any high school or college football official worth any credibility would tell you).  Likewise, a Regional Director of the National Labor Relations Board (NLRB) recently reached a little too far into his bag of tricks when he decided that Northwestern University football players are employees. 

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WORKPLACE GOSSIP: YOU KNOW YOU’VE GOT IT; SO HOW DO YOU STOP IT?

“The tongue like a sharp knife . . . Kills without drawing blood.”  ~ Buddha

Perhaps gossip is a part of life, but it shouldn’t be a large part of your business’s work life.  The rumor mill is a poison in the system of a healthy organization, and the impacts are many.  It lowers productivity because workers engaged in gossip are not engaged in their jobs.  For those who are the victims of gossip, their morale and productivity suffer because their minds cannot be drawn away from the anger, mistrust, and hurt such gossip causes them, and some may feel forced to resign as a result.  Trust – the building block for teamwork and harmony – is utterly destroyed by malicious gossip.  Worse, if the gossip leaks outside of your organization, it can harm your business reputation and your bottom line.

If I don’t have your attention yet – or if you think there’s nothing to be done because gossip is a fact of life – allow me to give you some real life examples I’ve come across in my research which might get your attention or change your mind.  I saw one example in which team members on a project began whispering about one of their teammates who supposedly wasn’t getting her work done and was leaving during the day.  This group speculated about what she was doing when she sneaked off.  Eventually, the co-worker heard the rumors about her and became upset.  She had been staying late and working weekends to try to keep up with her part of the project.  She finally felt that she had to stop the rumor mill by telling everyone that her child had just been diagnosed with a rare form of cancer, and that she had been taking her daughter to specialists for treatment.  This worker was not yet ready to share this deeply personal matter, but she felt she had to in order to protect herself at work.

In another example, an employee at an off-site work conference decided it was a good idea to follow two co-workers – the two being long-term friends – who stopped by one of their hotel rooms for a couple of minutes to retrieve something before re-joining their peers at a conference activity.  Using a cell phone, the employee recorded the two co-workers entering the hotel room, but did not stay to record their exit moments later.  The employee who recorded the footage then showed the video to another co-worker who passed it along to the would-be fiancée of one of the videoed employees, along with an opinion that these co-workers had “hooked up.”  Do you think that rumor negatively impacted the ability of the video-taped employee to trust co-workers, not knowing who recorded the video?  How about the employee’s productivity because of all the time spent dealing with the emotional fallout?  Of course, there was a great impact on the personal life of the video-taped employee, too.

Not all rumors are bad, and not all rumors deserve addressing, but employers should be prepared to deal with them effectively nonetheless.  A rumor about the projected increased revenues for a business can have a salutary effect upon stock prices and is an example of a good rumor.  A rumor concerning the future of your organization as a going concern is probably one that top management would want to address quickly, with as many facts as possible, because the damage done by rumor is swift and terrible to behold.  Petty rumors can usually be ignored because it’s the matter of discussing them which extends their shelf life.

So, what can an employer do to abate the damage of gossip in the workplace?  One thing that can be done is to lead by example.  If you have an issue with a co-worker, approach that individual directly and talk about it.  If someone comes to you with a “juicy tidbit of gossip,” talk to them about the inappropriateness of gossiping.  If you have information to discredit the rumor, then share it.  If you can educate your co-workers on the harms of gossip, to both themselves and the victims, then perhaps those people will limit this type of behavior in the future.  Folks in HR may be particularly helpful in this form of grassroots behavior modification because they can identify employees who can be educated to lead by example, which helps stop the rumor mill before it gets rolling.  HR may also be able to identify the chief gossipers in the workforce and educate them to stop the behavior.  Another method to change the culture at the workplace is to hold group meetings of employees where you discuss how gossip is damaging and ask them to place themselves in the victim’s position.  Give examples of what constitutes gossip and rumor (as I did), then let your employees know gossip won’t be tolerated.

Bear in mind, rumor and gossip can have legal ramifications.  A hostile work environment may be created or discrimination perpetuated.  It also may lead to claims of invasion of privacy or defamation, if the circumstances are right.  Employers should address workplace gossip for these reasons, if nothing else.  If you have ever had to conduct a workplace investigation, you know that the rumor mill runs out of control during these times.  And, typically, the employer is proscribed from sharing any real information with workers to combat these rumors.  That’s why having the right culture and policies in place can make a huge difference.

Another thing you can do to institute the right culture is be sure you have the right policies in place to help keep the peace.  Most of them you probably already have in your handbook, but maybe they need a few tweaks.  Notwithstanding everything you have read up to this point, be careful with “no gossiping” policies, per se.  The National Labor Relations Act protects the right of employees to discuss the terms and conditions of their employment.  A no gossip policy might be too broad and, therefore, deemed to infringe on those rights.  A public employer may also have First Amendment concerns if the subject of the gossip is also speech on a matter of public concern.  However, your code of conduct and your disciplinary policy can address certain behaviors which create discord and threaten harmony, making unacceptable activities subject to discipline.  Also, an “open door” policy – where employees can feel free to address their concerns to management and obtain factual information in response – is often a useful tool in combating a rumor before it begins.  Additionally, a good anti-harassment/anti-discrimination policy will usually cover malicious personal rumors.  Just make sure employees are trained on examples demonstrating this coverage.  Don’t forget that your business device/cell phone use policies can cover the pernicious and surreptitious recording of employees, and your email and electronic communications policy is vital to stopping the spread of electronic gossip and rumor, too.

In my view, stopping harassment requires stepping into the shoes of the victim, seriously considering the damage gossip inflicts on persons and on businesses, and then not doing it (or doing something to stop it).  Getting your employees to think twice before engaging in this type of behavior is priceless.  Do you share the same view?

SIXTH CIRCUIT HOLDS THAT TELECOMMUTING MAY BE A REASONABLE ACCOMMODATION UNDER THE ADA

Last year in this forum, we wrote about how a federal court in the Eastern District of Michigan concluded that working from home was not a reasonable accommodation for a Ford employee who had irritable bowel syndrome.  Specifically, that court determined that telecommuting was not a reasonable accommodation under the Americans with Disabilities Act for the employee because attendance at work was an essential function of her job.  Well, that case was appealed, and in a recent ruling employers everywhere should know about, the Sixth Circuit Court of Appeals gave employers a lot of food for thought about whether telecommuting can be a reasonable accommodation, what essential job functions truly are, and whether the workplace must be at the employer’s physical place of business.
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A QUICK REFRESHER ON JOINT EMPLOYER LIABILITY

Joint employment is not a concept that every employer is familiar with, probably because it most commonly arises in the contractor setting.  Generally speaking, when joint employment is found, it serves to impute liability on a general contractor for the actions of an employee of a subcontractor, based on the idea that the general contractor has sufficient control over the work done by the subcontractor employees.  As you can probably tell, the definition alone suggests there’s a lot of gray area, so it’s not always clear who qualifies as a joint employer.  A recent case decided by the Sixth Circuit Court of Appeals – which covers Ohio, Kentucky, Tennessee, and Michigan – is a good refresher on this issue, particularly since it arose in the context of who may be liable for discrimination under Title VII of the Civil Rights Act of 1964.

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