I recently came across a post that I failed to publish many months ago. The news story is a dated now, but the point remains the same:
I talk with clients about looking at what they do and how they do it, not just what they say. You never want an employment or compliance policy accompanied by a “wink-and-nod.” Consistency is important, just like in parenting because it is not enough to say, “I really mean it.”
There was a recent story that displays that point. You may have seen it: The Houston Astros had a “Ladies’ Night” fan promotion with a Baseball 101 talk, “Diamonds and Bling” music, and the chance for makeovers as a part of coming to a game. There was an outcry over the condescending way the event was promoted. Here’s one account: http://msn.foxsports.com/mlb/story/houston-astros-botch-ladies-night-offend-women-daily-buzz-092513.
Here is the part that struck me, and it’s not unique to a single site that carried the story: Along with the story about how the event was offensive to women, several of the sites had even more questionable content in and around the article and in advertising bars. Just for instance, in the column next the the story above, there was a photo for “Fox Sports Girl of the Week: Kendall” and embedded within the text of the story is “WHO SETS THE CURVE? Check out the FOXiest fans from stadiums across the country and tweet us your photo.” Bravo. What kind of message did all of the verbiage (and images) around that story send? Don’t get me wrong; I know there are other issues at play–readership, advertising dollars, etc. Nothing is simple.
But next time you roll out a new policy, have staff training, or educate on an HR issue, make sure to consider the other messages you are sending in the context of your presentation. It may be that the message is lost in the noise of how it is packaged, who is presenting, or the way you operate.
Job descriptions are important. They are not specifically required by law or regulation. However, the essential functions of a job must be considered in many contexts such as questions involving disability status or leave.
Job descriptions allow the employer to clarify what responsibility an employee has within the business and how the employee is expected to operate. This information matters from the first interview through the end of employment. Descriptions allow the employer to define relationships and obligations between co-workers and departments or divisions. They can set out educational, training, and skills requirements. They can also be the first place an employer looks to consider coaching, counseling, or evaluation. This information helps the employer evaluate performance for different positions too. Likewise, descriptions tell employees what is expected and serve as a form of communication to outline accountability.
1. Tell us about Wilson Worley:
Wilson Worley PC is a general civil law firm practicing in upper East Tennessee and southwest Virginia since 1951 from offices in Kingsport, Tennessee. We listen to client needs and work to develop long-term relationships. We want to be known for the competence, quality, and skill of our people, and we are looking for ways to evolve the legal practice to be what our clients need today.
2. Who works on the Tennessee Human Resources Manual?
The legwork that goes into the Manual is a collaborative effort each year. We have an Employment Practice group that includes several lawyers, and one of its jobs is to monitor what is happening in employment law, locally and nationally. We email newsletter updates to…
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Today marks the beginning of open enrollment in the ACA Health Insurance Exchanges. Also, employer notices with information about the Exchanges must go out today. Forms are available for employers to use.
The White House has an interactive map and information available to the public about the Exchanges. Click here to see the website: State-by-State Monthly Marketplace Premiums
The deadline of October 1 for employer ACA notices is almost upon us. October 1 is also the date that the ACA Health Insurance Marketplace will become operational. Open enrollment begins October 1 with coverage starting January 1, 2014.
As that happens, more information is being made available. The federal government–calling the Exchanges a simple and affordable way to get insurance coverage under the ACA–is promoting the system through several sources.
According to a White House release, “A new report shows that the Marketplace will give uninsured Americans access to affordable health insurance — and finds that average premiums are even lower than experts initially projected. For instance:
- A working family making $50,000 a year can get health insurance for less than $100/month.
- A 27 year-old making $25,000 a year could get coverage for an average of $93 a month.”
Summer associate Katie Steffen has prepared case summaries for two United States Supreme Court opinions released in June. Vance v. Ball State University discussed who is a “supervisor” for purposes of vicarious liability under Title VII, while University of Texas Southwestern Medical Center v. Nassar held that a retaliation plaintiff must prove the “desire to retaliate was the but-for cause of the challenged employment action.” The full newsletter is available by clicking here.
The NLRB found a confidentiality policy to be overbroad. While employers have a legitimate, business interest in restricting the improper disclosure of propriety information, a policy may violate Section 7 if confidential information is defined too broadly. This violation could happen if the definition prevented an employee from discussing the terms or conditions of employment. For example, a prohibition against disclosing personnel information to any person outside the business when the employee could face legal action or firing may be too broad because is prohibits employees from talking about their own personal wages or job conditions.
Tennessee is an at-will employment state. Many employers adopt policies making clear that employees are working at-will. The NLRB ruled that policy language saying that the at-will employment relationship cannot be modified or altered would violate the NLRA because employees may request to change at-will status. The NLRB Acting General Counsel then released Advice Memoranda reviewing at-will employment clauses from two employee handbooks, noting that both were lawful under the NLRA.
Policy impacting use of Social Media
Whether in the context of harassment, bullying, social media, or communications, policies that restrict comments made on social media could arguably have a chilling effect on an employee’s Section 7 rights. Policies that have zero tolerance language are ripe for concern. Comments or communications by the employee may constitute concerted activity if they are for the purpose of mutual aid or protection. If the comments are made as a step toward group action to defend workers, then the action may be protected.
Policy restricting Negative or Adverse Comments
A policy that restricts employees from making statements that purportedly damage the business, defame another individual, or damage another person’s reputation may be considered overbroad because it could prevent an employee from engaging in protected communications critical of the employer or its representatives. Policies against malicious, abusive, or unlawful behavior are not objectionable.
The Board says, “If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court. Recent cases involving a range of industries and employees are highlighted on the map below; please hover over a pin for a summary or click and the full story will appear below.”
Here is a link to the map: http://www.nlrb.gov/concerted-activity.