Archive | February 2012

Religious discrimination under Title VII

“Religious liberty might be supposed to mean that everybody is free to discuss religion. In practice it means that hardly anybody is allowed to mention it.” ― G.K. Chesterton

That comment may be a bit extreme, but it has a kernel of truth in the workplace.  In light of the upheaval this week over Quran burning and Muslim and Christian tensions, Title VII employers should remember that they must not allow religion to become a workplace issue. Employers spend a lot of time training to guard against race and sex discrimination, but they may not spend enough time monitoring other protected classes. The federal Civil Rights Act prohibits an employer from discriminating against employees on the basis of religion. This can be by harassment, failure to provide reasonable accommodation, or adverse employment action.

Employers cannot hire, fire, discipline, or require different or stricter requirements because of religious beliefs. A hostile environment can occur if there is pervasive, unwelcome conduct motivated by religious belief that results in an intimidating or offensive workplace.

Sometimes an employer must balance the interests of those who wish to proselytize or openly perform a religious act with those who are offended. Employers can accommodate those offended by excusing them from certain work requirements or alternating breaks so that different groups have less interaction. A policy restricting outside information or promotion of outside activities may be warranted but must be evenly enforced as to all outside activities. Thus, if an employer prevents employees from posting literature on a tent revival in the break room, it should be consistent and prohibit school fundraiser brochures and Girl Scout cookies too.

Compensating Employees for Time Spent Traveling

How do you treat payment for employees who are “On the Road Again”?

A basic tenant of employment law provides that an employee is responsible for getting to work, and the employer is not obligated to pay for this commute time to work (unless the employee works during the travel).  That commute or home-to-work travel is not pay time under the FLSA pursuant to the Portal-to-Portal Act.  However, there are times that the employer should pay the employee for travel time.  The question is whether the travel is for the organization’s benefit (trips out of town, to clients, etc.) or for the employee’s benefit (getting to the workplace).  Even if the employee works at different job sites, travel to the site is not compensable, unless the employee must report to a central location and then is sent to a remote job site.

Travel that is part of the regular daily duties of the employee, such as visits to customers, must be counted as work time.  For day trips, any travel to the ultimate location is compensable.  However, travel to an airport or other mass transit terminal is treated as home-to-work travel.  For an overnight stay, all travel during normal working hours, regardless of the day of the week, is compensable.

“The life I love is makin’ music with my friends, and I can’t wait to get on the road again.”  Sorry if you have Willie Nelson in your head now.

Applicability of Employment Laws by Number of Employees

How many employees must an employer have for a particular law to apply?

100     Worker Adjustment and Retraining Notification Act (WARN Act)

50       Family & Medical Leave Act (FMLA)

20       Age Discrimination in Employment Act (ADEA)

15       Americans with Disabilities Act (ADA)

15      Genetic Information Nondiscrimination Act (GINA)

15      Title VII

1        Unemployment Compensation Law

1        Fair Labor Standards Act (FLSA)

1        Uniformed Services Employment and Reemployment Rights Act (USERRA)

There are several other state laws as well, including:  5 Tennessee Workers’ Compensation (1 for construction/coal mining), 8 Tennessee Human Rights Act, and 100 Tennessee Maternity Leave Act.

National Labor Relations Act issues may become important during political race

With the Republican Presidential primary race in full swing, there are many issues being discussed.  The National Labor Relations Board’s activities may come into more focus during the election campaign.  The NLRB has been active during the Obama administration’s term, and our firm has been monitoring what it does.  The new appointees have changed the focus of the Board, and the Board has issued new regulations, which require employers to post notices of employee NLRA rights and which change the process for representation elections.

The Wilson Worley Employment attorneys have written several newsletters in recent months about the NLRB/NLRA.  The newsletters include “Administrative Law Judge Holds that Company Violated NLRA When It Prohibited Employees From Discussing Their Pay,” “NLRB Declares Employees Have Protected Right to Seek Class Relief,” and “NLRB Finalizes ‘Right To Organize’ Notice Rule.”  For links to read these newsletters, and other Wilson Worley employment law updates, follow this link:

Are You Prepared for a HIPAA Compliance Audit?

The Office of Civil Rights of the Department of Health and Human Services is running a pilot program this year to audit HIPAA compliance.  To read more about the program, click here to access the update written by George Samuel, attorney at Wilson Worley.

Do you have a social media policy?

Come on, everyone’s doing it.  Our society now communicates in fundamentally different ways than it did in the past.  Because of the explosion of social media, employers must consider the implications for their business, workplace, and employees.  Social media is an issue that cuts across all industries and all size businesses.  Do you know what people are saying about your company, its practices, its employees, or its customers?  Some of those may be “your people” talking.

There is a whole new field of potential liability from the use of Facebook, Twitter, and other media.  And now, it is much easier to verify what was said, when, and to whom—and how far the information was passed.  There are PR risks along with the possibility of wide dissemination of confidential information that belongs to you or your clients.  Potential harassment or discrimination may be documented too.  And it may be happening in your workplace—or at an employee’s home, or even in a coffee shop.

Drafting a policy that explains your company’s expectations for the use of social media by employees has become necessary.  Obviously, a lot of use won’t be about the company and there are be protections for some speech under federal or state law, but organizations can and should still address usage, disclosure of information, and disparaging statements.