HOT ISSUES IN EMPLOYMENT LAW WHAT WOULD YOU DO? Jeffrey J. Pargament, Esq. Pargament & Hallowell, PLLC 1776 K Street, N.W., Suite 825 Washington, DC 20006

HOT ISSUES IN HOT ISSUES IN EMPLOYMENT LAWEMPLOYMENT LAW

WHAT WOULD YOU DO?WHAT WOULD YOU DO?Jeffrey J. Pargament, Esq.Jeffrey J. Pargament, Esq.

Pargament & Hallowell, PLLCPargament & Hallowell, PLLC1776 K Street, N.W., Suite 8251776 K Street, N.W., Suite 825

Washington, DC 20006Washington, DC 20006(202) 775-0707(202) 775-0707

[email protected]@pandhlaw.com

We note that these materials have been prepared as a general discussion We note that these materials have been prepared as a general discussion outline and should not be deemed to be legal advice. Specific questions outline and should not be deemed to be legal advice. Specific questions

should be referred to legal counsel.should be referred to legal counsel.

mailto:[email protected]

© Pargament & Hallowell, PLLC 2010© Pargament & Hallowell, PLLC 2010 22

LEARNING OBJECTIVESLEARNING OBJECTIVES

Review hot issues in employment lawReview hot issues in employment law Identify common workplace mistakesIdentify common workplace mistakes Educate you regarding the often Educate you regarding the often

conflicting employment lawsconflicting employment laws Offer recommendations for keeping you Offer recommendations for keeping you

and your organizations out of troubleand your organizations out of trouble Answer your employment law questionsAnswer your employment law questions


SCENARIO ASCENARIO A

‘‘Tis the Season . . . Tis the Season . . . Your organization is having its Holiday Your organization is having its Holiday

Party at the local hotel. You have Party at the local hotel. You have booked a room for yourself. One of your booked a room for yourself. One of your employees has had three too many. employees has had three too many. The hotel is sold out. The hotel is sold out.

What would you do?What would you do?


‘‘TIS THE SEASON TIPSTIS THE SEASON TIPS

Distribute drink ticketsDistribute drink tickets Ensure minors are not “cocktailing”Ensure minors are not “cocktailing” Cut people off – from drinking to excessCut people off – from drinking to excess Don’t allow inebriated guests to driveDon’t allow inebriated guests to drive For those of you who need the For those of you who need the

reminder – No groping allowed and no reminder – No groping allowed and no fisticuffs permittedfisticuffs permitted

Don’t jeopardize your careerDon’t jeopardize your career


SCENARIO BSCENARIO B

Tommy’s productivity has been suffering Tommy’s productivity has been suffering and he has been placed on a Performance and he has been placed on a Performance Improvement PlanImprovement Plan

To ensure he meets deadlines, he To ensure he meets deadlines, he frequently arrives early and leaves work frequently arrives early and leaves work late, but does not record his extra hourslate, but does not record his extra hours

In essence, Tommy puts in 45 hours to In essence, Tommy puts in 45 hours to accomplish 40 hours of workaccomplish 40 hours of work



SCENARIO CSCENARIO C

Mary eats at her desk while she is on Mary eats at her desk while she is on her unpaid lunch breakher unpaid lunch break

She occasionally fields calls and She occasionally fields calls and responds to co-workers’ inquiriesresponds to co-workers’ inquiries



FAIR LABOR STANDARDS FAIR LABOR STANDARDS ACTACT

Requires overtime (1½ x regular rate) payment to Requires overtime (1½ x regular rate) payment to non-exempt employees who work more than 40 non-exempt employees who work more than 40 hours in a given weekhours in a given week

No comp time for non-exempt personnelNo comp time for non-exempt personnel Non-exempt employees are entitled to Non-exempt employees are entitled to

uninterrupted meal breaks if said breaks are uninterrupted meal breaks if said breaks are unpaidunpaid

Exempt employees must be paid a salary – Exempt employees must be paid a salary – cannot deduct for partial day absencescannot deduct for partial day absences FMLA intermittent leave exceptionFMLA intermittent leave exception

Recordkeeping requirementsRecordkeeping requirements


COMMON FLSA ISSUESCOMMON FLSA ISSUES

Are employees properly classified as exempt/non-Are employees properly classified as exempt/non-exempt?exempt?

Do we have employees working off the clock?Do we have employees working off the clock? Are non-exempt employees experiencing more than Are non-exempt employees experiencing more than

de minimis interruptions during their unpaid meal de minimis interruptions during their unpaid meal breaks?breaks?

Are you docking exempt employees’ pay for partial Are you docking exempt employees’ pay for partial day absences?day absences? Again, FMLA exceptionAgain, FMLA exception

Who is keeping track of employees’ time?Who is keeping track of employees’ time? Have you retained records demonstrating hours Have you retained records demonstrating hours

worked and compensation?worked and compensation?


SUGGESTIONSSUGGESTIONS

Undertake periodic auditsUndertake periodic audits To ensure proper classificationTo ensure proper classification Compliance with pay policiesCompliance with pay policies

Maintain accurate job descriptionsMaintain accurate job descriptions Establish reporting procedures for employees to report Establish reporting procedures for employees to report

extra hours; interrupted meal breaksextra hours; interrupted meal breaks Employers should not look the other wayEmployers should not look the other way In general, where employees do not receive uninterrupted In general, where employees do not receive uninterrupted

lunches or put in extra hours, they should be compensatedlunches or put in extra hours, they should be compensated In such case, what is an employer to do?In such case, what is an employer to do?

Pay the employees, butPay the employees, but Discipline/discharge serial violatorsDiscipline/discharge serial violators


FLSA AMENDED TO REQUIRE FLSA AMENDED TO REQUIRE BREASTFEEDING BREAKSBREASTFEEDING BREAKS

Employers must provide unpaid breaks and Employers must provide unpaid breaks and space for nursing mothers to express breast space for nursing mothers to express breast milkmilk Applies only to non-exempt (hourly) employeesApplies only to non-exempt (hourly) employees Must provide “reasonable” breaksMust provide “reasonable” breaks Must provide a space, which is not a restroom, Must provide a space, which is not a restroom,

that is shielded from view and free from intrusion that is shielded from view and free from intrusion from co-workers and the publicfrom co-workers and the public

Entitled to breaks for up to one year after birth of Entitled to breaks for up to one year after birth of childchild

Employers with fewer than 50 employees may be Employers with fewer than 50 employees may be exempt if they can show breaks would cause exempt if they can show breaks would cause “undue hardship”“undue hardship”


SCENARIO DSCENARIO D

Mary reports that a co-worker is Mary reports that a co-worker is posting derogatory comments about posting derogatory comments about the company and her supervisor on the company and her supervisor on Facebook.Facebook.

What do you do?What do you do?


FACEBOOK, TWITTER AND FACEBOOK, TWITTER AND OTHER SOCIAL MEDIAOTHER SOCIAL MEDIA

The National Labor Relations Board provides The National Labor Relations Board provides protection to employees who engage in protection to employees who engage in protected concerted activityprotected concerted activity Coverage is extended to “employees” as defined Coverage is extended to “employees” as defined

by the National Labor Relations Act; not by the National Labor Relations Act; not supervisorssupervisors

Activities must be by the employee or by an Activities must be by the employee or by an employee on behalf of self and othersemployee on behalf of self and others

Protected concerted activities include complaints Protected concerted activities include complaints about wages, hours, or working conditionsabout wages, hours, or working conditions


Complaints about supervisors, if voiced by Complaints about supervisors, if voiced by an employee on behalf of other employees, an employee on behalf of other employees, are generally deemed protected concerted are generally deemed protected concerted activityactivity

Therefore, generally cannot discipline Therefore, generally cannot discipline employees who, on behalf of themselves employees who, on behalf of themselves and others, utilize social media to complain and others, utilize social media to complain about wages, hours and working conditionsabout wages, hours and working conditions

However, the NLRA generally does not However, the NLRA generally does not protect employee who publicly denigrates protect employee who publicly denigrates the company’s productthe company’s product

NOTE: Rules prohibiting “employees” from NOTE: Rules prohibiting “employees” from discussing their wages are also violative of discussing their wages are also violative of the NLRAthe NLRA


RESTRICTIONS ON USE OF COMPANY’S RESTRICTIONS ON USE OF COMPANY’S ELECTRONIC SYSTEMS FOR SOLICITATIONELECTRONIC SYSTEMS FOR SOLICITATION

Employers may impose non-discriminatory rules Employers may impose non-discriminatory rules restricting the use of electronic communications restricting the use of electronic communications systems for purposes of union solicitationsystems for purposes of union solicitation

The Register-Guard and Eugene Newspaper GuildThe Register-Guard and Eugene Newspaper Guild, , 351 NLRB No. 70 (2007)351 NLRB No. 70 (2007) NLRB held that employees have no statutory right to use NLRB held that employees have no statutory right to use

employer’s email system for union organizing activitiesemployer’s email system for union organizing activities Employer permitted to implement a policy providing that Employer permitted to implement a policy providing that

its communication systems and equipment “are for its communication systems and equipment “are for business purposes only and may not be used to solicit or business purposes only and may not be used to solicit or proselytize for commercial ventures, religious or political proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related causes, outside organizations, or other non-job-related solicitations”solicitations”


NOTE: Policy must not be enforced in a NOTE: Policy must not be enforced in a discriminatory manner so as to single out discriminatory manner so as to single out union organizing activities. Limited union organizing activities. Limited charitable solicitations are generally charitable solicitations are generally permissible.permissible.

NLRB in NLRB in Register GuardRegister Guard held that held that permitting charitable and personal permitting charitable and personal solicitations did not prohibit employer solicitations did not prohibit employer from enforcing the policy against from enforcing the policy against organizational activitiesorganizational activities

However, NLRB consists of political However, NLRB consists of political appointees and may revisit its decision appointees and may revisit its decision with different resultswith different results


BEST PRACTICES – POLICIES FOR BEST PRACTICES – POLICIES FOR RESTRICTING USE OF COMPANY’S RESTRICTING USE OF COMPANY’S

ELECTRONIC SYSTEMSELECTRONIC SYSTEMS

Establish clear policies and disseminate to Establish clear policies and disseminate to employeesemployees

Monitor compliance and enforce policies Monitor compliance and enforce policies uniformlyuniformly

General rules for use of electronic systemsGeneral rules for use of electronic systems Clearly state that electronic equipment and Clearly state that electronic equipment and

systems (including email and Internet) are systems (including email and Internet) are the property of the employer and employees the property of the employer and employees should not have any expectation of privacy should not have any expectation of privacy in their usein their use Employers may limit use to business purposes Employers may limit use to business purposes

only or permit limited personal useonly or permit limited personal use


Require employees to disclose Require employees to disclose passwordspasswords

Require that systems must be used for Require that systems must be used for lawful business purposes onlylawful business purposes only

Prohibit harassment and Prohibit harassment and discriminationdiscrimination

Prohibit disclosure of employer’s Prohibit disclosure of employer’s confidential or proprietary informationconfidential or proprietary information

Prohibit solicitation using company Prohibit solicitation using company resources and systemsresources and systems


RULES FOR SOCIAL NETWORKING, RULES FOR SOCIAL NETWORKING, BLOGGING AND OTHER INTERNET BLOGGING AND OTHER INTERNET

ACTIVITIESACTIVITIES

Prohibit non-work-related postings to Prohibit non-work-related postings to social networks and blogging while at work social networks and blogging while at work or while using company equipmentor while using company equipment

Prohibit disclosure of personal information Prohibit disclosure of personal information of other employeesof other employees

Prohibit use of employer’s logos/graphics Prohibit use of employer’s logos/graphics in employee postingsin employee postings

Prohibit employees from implying that Prohibit employees from implying that they represent the employer – must use they represent the employer – must use disclaimersdisclaimers


Prohibit publication of defamatory, Prohibit publication of defamatory, discriminatory or sexually offensive discriminatory or sexually offensive remarks about other employeesremarks about other employees

Prohibit defamation and fraudProhibit defamation and fraud Prohibit references to customersProhibit references to customers Ensure that policies cover off-duty Ensure that policies cover off-duty

conductconduct Special considerations for managersSpecial considerations for managers

Prohibit managers from becoming Prohibit managers from becoming “friends” with employees online“friends” with employees online

Managers may not engage in fraudulent Managers may not engage in fraudulent access to employee social networking sitesaccess to employee social networking sites


SCENARIO ESCENARIO E

James joined your organization six James joined your organization six months ago. He reports that he will months ago. He reports that he will need time off to undergo need time off to undergo chemotherapy treatments. chemotherapy treatments.

What do you do?What do you do?


TIME OFF CONSIDERATIONSTIME OFF CONSIDERATIONS

D.C. Accrued Safe and Sick Leave ActD.C. Accrued Safe and Sick Leave Act Employers in D.C. must provide employees with Employers in D.C. must provide employees with

up to seven days of paid sick leave per yearup to seven days of paid sick leave per year Amount of leave depends on number of employees Amount of leave depends on number of employees

Employees accrue leave based on hours worked, Employees accrue leave based on hours worked, starting with commencement of employmentstarting with commencement of employment

Employees may not use leave until they have Employees may not use leave until they have been employed one year and have worked at been employed one year and have worked at least 1,000 hours in past 12 monthsleast 1,000 hours in past 12 months


Leave may be used for:Leave may be used for: employee’s own illness; employee’s own illness; to obtain medical diagnosis or care; to obtain medical diagnosis or care; to care for a child, parent, spouse, domestic to care for a child, parent, spouse, domestic

partner, or other family member who is ill or partner, or other family member who is ill or needs medical diagnosis or care; or needs medical diagnosis or care; or

for certain absences related to stalking, for certain absences related to stalking, domestic violence, or sexual abusedomestic violence, or sexual abuse

Employee must provide at least ten days Employee must provide at least ten days notice when leave is foreseeablenotice when leave is foreseeable

Unused leave carries over but is not Unused leave carries over but is not compensable upon separationcompensable upon separation

Hardship exception – requires written Hardship exception – requires written request for exemption, which must be request for exemption, which must be renewed annuallyrenewed annually


FMLA/ADA INTERPLAYFMLA/ADA INTERPLAY

FMLAFMLA 50 employees within 75 miles50 employees within 75 miles One year of employment; 1250 hoursOne year of employment; 1250 hours 12 weeks per year12 weeks per year

DCFMLADCFMLA 20 employees20 employees One year of employment; 1000 hoursOne year of employment; 1000 hours 16 weeks every two years16 weeks every two years

ADAADA 15 employees15 employees


D.C. Human Rights ActD.C. Human Rights Act Covers Covers allall private sector employees private sector employees

Under ADA and D.C. Human Rights ActUnder ADA and D.C. Human Rights Act Obligation to provide reasonable Obligation to provide reasonable

accommodations to disabled employees, accommodations to disabled employees, unless doing so would be an undue unless doing so would be an undue hardshiphardship

The fact that an employee does not The fact that an employee does not qualify for FMLA does not relieve the qualify for FMLA does not relieve the employer of its duty to accommodate employer of its duty to accommodate the employeethe employee


AMERICANS WITH DISABILITIES AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF ACT AMENDMENTS ACT OF

20082008 Effective January 2009Effective January 2009 States that the definition of “disability” States that the definition of “disability”

should be interpreted broadlyshould be interpreted broadly Overturns court cases which had limited the Overturns court cases which had limited the

definition of “disability”definition of “disability” Mitigating measures other than “ordinary Mitigating measures other than “ordinary

eyeglasses or contact lenses” may not be eyeglasses or contact lenses” may not be considered in assessing whether an individual considered in assessing whether an individual has a disabilityhas a disability

EEOC regulations are forthcomingEEOC regulations are forthcoming List of “major life activities” has been List of “major life activities” has been

greatly expandedgreatly expanded


SCENARIO FSCENARIO F

One of your managers seeks your One of your managers seeks your approval to terminate, for poor approval to terminate, for poor performance, Mrs. Jones, a six year, performance, Mrs. Jones, a six year, at-will, employee?at-will, employee?



TIPS FOR AVOIDING CLAIMSTIPS FOR AVOIDING CLAIMS

Review personnel file and ensure ample Review personnel file and ensure ample documentation to support the disciplinary documentation to support the disciplinary action/promotion decisionaction/promotion decision

Does the company have a policy regarding Does the company have a policy regarding discipline for enumerated infractions?discipline for enumerated infractions?

Is there disparate treatment?Is there disparate treatment? Beware of the “glowing evaluation”Beware of the “glowing evaluation” Consider the timing of particular employment Consider the timing of particular employment

decisionsdecisions What is prompting the employment action?What is prompting the employment action? Are you inviting a retaliation claim?Are you inviting a retaliation claim?

Does the employee enjoy protected status?Does the employee enjoy protected status?


OTHER TIPS FOR MINIMIZING OTHER TIPS FOR MINIMIZING CLAIMSCLAIMS

Provide regular training on harassment Provide regular training on harassment issues/disseminate policies periodicallyissues/disseminate policies periodically

Remember -- e-mails count!Remember -- e-mails count! Don’t “throw in the kitchen sink” when Don’t “throw in the kitchen sink” when

disciplining or discharging employeesdisciplining or discharging employees False reasons can result in inference of discrimination False reasons can result in inference of discrimination

and merit jury trialand merit jury trial Don’t “moon” your employeesDon’t “moon” your employees Two employees fired after complaining that bank president Two employees fired after complaining that bank president

“mooned” them are awarded in excess of $1 million (“mooned” them are awarded in excess of $1 million (Hitson Hitson v. First Savings Bank, (D.N.M. 2002)v. First Savings Bank, (D.N.M. 2002)

Documents

HOT ISSUES IN EMPLOYMENT LAW WHAT WOULD YOU DO? Jeffrey J. Pargament, Esq. Pargament & Hallowell, PLLC 1776 K Street, N.W., Suite 825 Washington, DC 20006