Monthly Archives: January 2016

UBERIZATION OF THE WORKPLACE, PART 1: WILL THIS RADICAL INNOVATION CHANGE THE FACE OF EMPLOYER/EMPLOYEE RELATIONS?

This blog post is part one of a six part series on the impact the Uber business model is having on employment laws across the nation.

Have you Ubered? If you haven’t, then you should try it before you weigh in on whether it is a good or bad thing.  At its most basic, Uber is an alternative to calling a cab (and there are progressively pricier and flashier versions of Uber if you prefer to travel in style).  All you do to Uber is download an app to your smartphone, provide your credit card information, and then request a ride.  Uber has conducted background checks and insurance checks on folks who use their personal vehicles to pick you up and take you to your destination.  No cash is exchanged.  The cost of the ride is charged to the credit card on file.  Read More »

HANDLING EMPLOYEE ATTENDANCE AND PAY WHEN THE WEATHER OUTSIDE IS FRIGHTFUL

Like it or not, winter has finally arrived.  During times of snowy and icy road conditions, employers will undoubtedly be faced with tardiness, absenteeism, and the possibility of implementing office and/or plant closures.  One question that often arises during inclement weather is how to handle pay issues under the Fair Labor Standards Act (FLSA).  If you find yourself in that boat snowmobile, read on!  images Read More »

THE LAW IS AN IDIOM

Here’s a little fact that may knock your socks off:  according to the EEOC, retaliation is the most frequently alleged civil rights charge in the federal sector and has been for nearly a decade.  In West Virginia, retaliation claims comprise approximately one third of such cases, and that’s nothing to turn a blind eye to.  Retaliation claims tend to hitch their wagons to claims for other forms of discrimination or harassment; yet, it’s pretty common for the underlying discrimination claim to disappear in a puff of smoke while the retaliation claim keeps on trucking.  This is a tune we’ve been singing for years on this blog, but with the EEOC taking a closer look at retaliation, we’ve got a few tricks up our sleeves to help stop retaliation in its tracks.

While it may be as obvious as the nose on my face, step one would be to reduce discrimination claims.  While some folks seem to always have an ax to grind, employers can do something about employees who have a real beef.  You probably (hopefully) have a company anti-discrimination policy, so use it.  Make sure your employees are treated consistently and in accordance with this policy.  Remember too: actions speak louder than words when it comes to zero tolerance for harassment and discrimination.  So, make sure that elimination of discrimination is a value held from the top down in your organization.  Fewer discrimination claims = fewer retaliation claims.

The next step you can take is to go the extra mile when you investigate complaints.  Document what you do and when you do it.  Certainly, I’m preaching to the choir when I remind you of the importance of keeping the investigation as confidential as possible, within the bounds of what the law permits.  This is particularly vital with regard to claims of retaliation because the fewer people who know about the complaint and the investigation, the fewer people who could possibly retaliate.

Make no bones about it:  you must have a written company policy prohibiting retaliation.  You will remind the complainant at the conclusion of the investigation not to keep mum if s/he experiences what they believe to be retaliation for their complaint.  You will remind the accused and witnesses that retaliation is prohibited.  Don’t beat around the bush with your employees; instead, train them on what retaliation is so they can spot it and stop it dead in its tracks.  Remember, the EEOC boils retaliation down to three key phrases:  retaliation occurs when an employer takes an adverse action against a covered employee for engaging in a protected activity.  For example, an adverse action can run the gamut from telling an employee to hit the road to moving him to the graveyard shift.  It all depends upon the circumstances.  A covered employee can be someone who has requested leave or a reasonable accommodation or may be the person we’ve been talking about who made a complaint about something she reasonably believed to be an unlawful practice.  Protected activities are usually as simple as you might expect:  filing a charge of discrimination, participating in an investigation of discrimination, or requesting a reasonable accommodation based upon disability or religion.

Finally, with retaliation claims, timing is EVERYTHING.  In most cases, timing is the best evidence a plaintiff has of retaliation.  It goes like this:  a complaint is made, investigated, and resolved under the company’s policy.  Before the complaint was made, however, the employee was treading water at the company, and his career was on its last legs.  If you’re lucky, your supervisor was on the ball, documenting the problems, the counseling, and the warning to shape up or ship out.  So, when the last straw finally breaks the camel’s back, you will have the documentation to support the adverse action you are about to take with the employee.  In each instance, you must look before you leap into taking an adverse employment action against an employee who has recently been involved in protected activity.  If the timing, documentation, or past practice do not support the decision you are about to make, put the brakes on it before it costs you an arm and a leg in court.  Assuming the conduct is not something that must be immediately nipped in the bud, get your ducks in a row by going back to the drawing board with the employee and documenting it properly the second time around.

While you should be glad to see the end of any claim for discrimination or harassment, the remaining retaliation claim can prove to be a tough customer to defend.  As they say, an ounce of prevention is worth a pound of cure.  Whether we see eye to eye on the matter, or maybe you think I’m off my rocker, I’d love to hear your Views about how you dodge the bullet of retaliation claims.

JOINT EMPLOYMENT IN THE SPOTLIGHT AGAIN

The legal concept of joint employment has been buzzing in 2015, and a new opinion from the U.S. Court of Appeals for the Third Circuit – covering primarily Pennsylvania and New Jersey – recently addressed the issue.  As those who read this blog regularly know, the Fourth Circuit addressed the question a few months ago, which we discussed here, and back in August, the National Labor Relations Board issued its much-discussed Browning-Ferris ruling, which we discussed here. images Read More »

NEW YEAR’S RESOLUTION: CLEANING UP THE FILE ROOM

Whether 2015 was good, bad, or ugly for you, 2016 is here, offering a clean slate of opportunity.  Whether you want to improve your health, your relationships, or your professional life, the first step is to make a New Year’s resolution.  A true New Year’s resolution is much more than a well-intentioned plan that you consider in the abstract during the serenity of your commute, between the craziness of work and home; it is something you are committed to – something you put into action and see to its completion – despite resulting difficulty. Read More »

SOME RESOLUTIONS FOR A HAPPY NEW YEAR!

Here’s to the bright New Year,
and a fond farewell to the old;
here’s to the things that are yet to come,
and to the memories that we hold.”
– Unknown

The New Year is often a time to reflect on the past year and to set resolutions for the coming one. Not only is this a perfect time to work on personal growth, but it is also the perfect time to work on how you manage your relationship with your employees. Here are five considerations as you enter the New Year:

Happy-new-year-Funny-Sms-Jokes-2016 Read More »