An Employer's Responsibility when Domestic Violence Invades the Workplace

 In the wake of domestic violence charges against NFL players and the public’s outrage at the NFL’s response as a business owner you may be thinking how you might respond when faced with an employee charged with domestic violence or an employee who is a victim of domestic violence.  Or maybe you believe domestic violence does not affect your workforce.

According to an article published by the ABA, one out of every four women will be a victim of domestic violence.  Additionally, almost 50% of employed victims of domestic violence report that they lost their jobs due to, at least in part, the domestic violence, and almost 50% of sexual assault survivors lose their jobs or are forced to quit their jobs.  Two-thirds of employed victims reported that their abusers harass them at work and almost 50% either missed work or were prevented from working due to the abuser.  Certainly domestic violence affects the workplace.

Employers should respond to the real potential of domestic violence in their workplace with leave policies, safety plans, and discipline policies that address such matters.  Leave policies should be adapted to provide employees with the knowledge and understanding that leave will be permitted to address the effect of violence in an employees’ life.  Likewise, since abusers have the tendency to harass the victim at work, employers should develop a safety plan that provides safety and protection to the employee during working hours, including restricted access, security, and police notification in extreme situations.  On the flip-side, employers should be prepared to respond with appropriate discipline, including termination, when an employee is the perpetrator of domestic violence, particularly when crimes are committed using the employer’s resources or during working hours.

More than policies, however, an employer should train its human resources staff or managers to identify potential domestic violence victims and handle such issues that might arise.  Employers should also inform employees that it takes domestic violence seriously by educating the employees on the policies and procedures that are available should domestic violence occur.

Telecommuting as a Reasonable Accommodation

The 6th Circuit’s telecommuting decision in EEOC v. Ford Motor Co. has been creating a buzz in the employment law community.  Since the concept of telecommuting as a reasonable accommodation is not necessarily innovative, the buzz must be coming from the way in which the court appeared to bend over backwards to declare that telecommuting could have been a reasonable accommodation in this specific instance.  Rather than offer my own critique of the case, check out this blog and this one here or maybe this one if you haven’t got enough yet.  Instead, let’s see what the 8th Circuit and Iowa courts have said about telecommuting.

 [chirp. chirp.]

It’s true, my cursory search of “telecommute” and “reasonable accommodation” in Iowa and the 8th Circuit through my online legal research provider yielded one unpublished one page opinion on telecommuting from 2002.  In Morrissey v. General Mills, Inc, the court found that allowing Morrissey to telecommute would have placed an undue burden on General Mills.  Morrissey’s job as an inventory accountant required her to review only original invoices.  The invoices would have had to be delivered by a courier, which would have possibly led to the disclosure of proprietary information.  The invoices would also have had to be logged out and back in, creating additional work for the other inventory accountant.  According to the court, employers are not required to hire additional personnel, risk disclosure of confidential documents, or increase the workload of other personnel to accommodate a disabled employee.  Telecommuting was not a reasonable accommodation based on the facts presented.

The decision is clearly not a blanket opposition to telecommuting.  These facts simply weren't the right facts to support telecommuting.  As telecommuting becomes more acceptable, requests to telecommute by employees with disabilities will increase.  Be prepared for these requests. Examine your job descriptions and your current telecommuting policies.  Do they need to be revised or updated?  Have you adequately set out the need for an employee's presence in the workplace?  Do you know what technology or workplace changes would need to be made if a request to telecommute was made?   Be proactive, not reactive because it's only a matter of time before a telecommuting request is made by one of your employees.

 

Conducting an Investigation

An employee just made a complaint of harassment or discrimination. You know you have a duty, as the employer, to investigate the employee’s complaint, but aren’t entirely sure how to conduct the investigation. Here are a few tips:

1. Understand the complaint. Take time to listen to the employee’s complaint. Understand what the employee is telling you by asking open-ended questions. Tell the employee that you are glad they brought the problem to your attention and you intend to act upon the complaint. Consider whether the complaint, if true, violates the law or company policies. Complaints that violate the law or company policies need to be investigated further.

2. Take Action. Determine if immediate action needs to be taken based on the complaint. Is the allegation serious enough to warrant a suspension or leave of absence for the harasser during the investigation? Are there documents that need to be preserved immediately? Are there computers or computer records that need to be preserved?

3. Determine who will conduct the investigation. If possible, the investigator should be someone outside the chain of command for the complaining employee. In some situations an outside investigator may be necessary. Limit the number of people involved in the investigation.

4. Plan the investigation. Take time to map out your investigation. Who needs to be interviewed? Where will the interview take place? What questions need to be answered? What documents need to be reviewed? Create an investigation log to record every step you take during the investigation.

5. Conduct interviews. If possible, being the interview process with the complainant. Ask open-ended questions, then more specific questions. Delve into inconsistencies, weaknesses, or contradictions.

6. Update and revise your plan based on the interviews. Continue requesting documents based on the interviews.

7. Make a conclusion. The point of the process is to determine if action needs to be taken based on the complaint and what action needs to be taken. Assess credibility. Review notes and storylines. Find facts that support your conclusion.

8. Follow-up with the complainant. Regardless of your conclusion, discuss the conclusion at some level with the complainant.

An investigation can provide an employer with a good defense if litigation ensues. But more than that, it tells employees that you take complaints serious and you want to keep your workplace free from harassment and discrimination.

What is a Hostile Work Environment?

The term "hostile work environment" gets used frequently by employers and employees. It's used in a so many contexts that it seems to have lost true meaning. Hostile work environment allegations range from employees being micro-managed to employees being ridiculed because of their sexual orientation. So what does hostile work environment mean and when is an employer liable for a hostile work environment?

A hostile work environment is harassment that is so severe and pervasive that it interferes with an employee's ability to perform his or her job. The frequency of the conduct, the severity, whether the conduct is physically threatening or humiliating, and the extent it interferes with work performance are all important considerations when determining whether a hostile work environment exists. The unwelcome conduct can come at the hand of supervisors, co-workers, customers, contractors, or others employees interact with. 

 

But, not all conduct that interferes with an employee's ability to perform his or her job is actionable. A valid hostile work environment claim arises when the conduct is based on a protected class e.g. race, gender, religion. A supervisor who makes an employee's life difficult simply because the supervisor doesn't like that employee doesn't necessarily give rise to a hostile work environment claim. (However, it may not be advisable to allow a supervisor to treat people poorly based on personal likes and dislikes). Other potential claims exist, but courts are generally slow to find employers liable because of personality conflicts within the workplace.

Is the Employee Handbook Archaic

I was told last week by someone in human resources that having an employee handbook is archaic and unnecessary in today's world. The statement caused me to pause. I have been advising employers of all sizes to adopt employee handbooks to fit their company. 

So I stopped to think--is an employee handbook archaic? Are there certain employers that shouldn't bother with a handbook? Should I tell all employers to destroy their handbooks? After considering the benefits of implementing a handbook, it's still my opinion that employers should provide employee handbooks to their employees.

 

First, the purpose of an employee handbook is to provide information to employees about the terms, conditions, and benefits of their employment. It provides an understanding between employees and management about the "house rules" and expectations. Everyone has a reference point when a question arises about a leave of absence, working hours, appropriate appearance or anything else contained in the handbook.

 

Second, it can satisfy an employer's legal obligation to provide notification regarding certain laws. For example, under COBRA employers are required to provide a general notice of COBRA rights and obligations to covered employees within 90 days of the active coverage effective date. The FMLA also requires employers to provide written guidance about employee rights and obligations.

 

Third, in practically every discrimination lawsuit any client has been involved in, the employer policies relating to harassment and discrimination are important. The existence of written policies demonstrates that the employer is cognizant of the potential for harassment and discrimination and is taking steps to prevent it. Written policies provide a defense when a lawsuit arises.

 

For all those reasons, I will still be encouraging my clients to adopt written handbooks and providing those to employees.

Employers Now Required to Post Notice of NLRA Rights

Earlier this week the NLRB issued a final rule requiring employers to notify employees of their rights under the National Labor Relations Act (NLRA) by November 14, 2011. All private-sector businesses, except those "small employers" which the Board has chosen not to assert its jurisdiction over, are required to comply with the rule.

According to the NLRB press release, the notice will inform employees that they have a right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

 

The required notice will be available on the NLRB website and from regional offices by November 1.

Proposed Amendments to Iowa Wage Payment Collection Act

On March 8, 2011 the Iowa Senate passed S.F. 311, which amends Iowa Code Chapter 91A, Iowa Wage Payment Collection Act. Below is a list of important changes:

·         Employers will be required to do the following

o   Notify employees in writing at the time of hiring wages and regular paydays

o   Notify employees in writing whose wages are determined based on a task, piece, mile or load basis about the method used to calculate wages and the wages are earned

o   Notify at least one pay period prior to the initiation of any changes regarding calculation of pay, wages, regular paydays. The notice must be in writing.

o   Upon written request provide a written statement enumerating employment agreements and policies with regard to vacation pay, sick leave, reimbursement for expenses, retirement benefits, severance pay or other matters.

o   Failure to maintain payroll records showing hours worked, wages earned, and deductions made for each employee raises a rebuttable presumption that the employer did not pay the required minimum wage.

 

While many of these things were included in the statute previously, the amendment eliminates the requirement that the request come from the commissioner. Now, all employers will be required to comply with this section.

 

·         Liquidated damages are available whenever an employer fails to pay wages or reimburse expenses. The amendment removes the "intentional" requirement.

 

·         The amendment explicitly prohibits retaliation against anyone for exercising their rights or assisting one in exercising their rights under this chapter.

 

The bill now will move to the House. 

Protect Your Employees' Status During A Furlough

In the wake of tough economic times, many companies are exploring alternative cost cutting methods.  One method is requiring employee furloughs.  Employers are using required furloughs rather than terminations as a cost-cutting measure.  If you are thinking about using a furlough at your company remember the following rules regarding non-exempt and exempt employees:

 

·         Non-exempt employees must be paid only for actual hours worked.  An employer may send non-exempt employees home as a cost-cutting measure without worrying much about the legal problems.  You will need to review any contracts, including collective bargaining agreements, your company may have with non-exempt employees before implementing a furlough to ensure that you are not violating any of the provisions contained within the agreement.

 

·         Exempt employees must receive full salary for any week in which work is performed, without regard to the number of days or hours worked.  If any exempt employee does not receive full salary for every workweek in which the employee performs any work, exempt status is lost and the employee is entitled to overtime pay.  In general, furloughs for exempt employees should be scheduled in full workweek increments to protect an employee’s exempt status.

 

These should be considered general rules.  If you have specific questions about implementing a furlough plan please contact your attorney.

Help! I Need a Reasonable Accommodation!

 

 The ADA requires employers to make “reasonable accommodations” for qualified individuals with a disability.  (“Disability” is a broadly defined term which can encompass a number of impairments.  Determining whether some is disabled for the purposes of the ADA can be difficult. If you have questions whether an employee may be covered by the ADA you should contact your attorney). A reasonable accommodation can include the following:

·         Making existing facilities used by employees readily accessible to and usable by persons with disabilities;

·         Job restructuring, modifying work schedules, reassignment to a vacant position;

·         Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

 

But what else can you do? How do you know what equipment or devices exists? Where do you find the materials you need? The Job Accommodation Network (JAN) was created to help assist employers, employees and other interested people in answering these questions. The JAN staff can help businesses by suggesting reasonable accommodations and assisting with the implementation of reasonable accommodations.  Private businesses may access JAN services by telephone, email and on-line tools. It provides helpful and practical information and guidance for employing and retaining individuals with disabilities.

 

Compliance with Employee Related Statutes

The Iowa Supreme Court’s opinion in Sims v. NCI Holding Corp., is a great example of the importance of complying with employee related statutes. Sims sued his employer for violating Iowa Code § 730.5 (drug-testing) after being terminated for testing positive for an illegal drug.  Apparently, prior to the filing of the lawsuit NCI gave oral notice of Sims' right to a second test rather than written notice as required by the statute.  It was ultimately determined that the employer did not wrongfully discharge Sims and was not required to pay Sims back pay or punitive damages or reinstate him. Because the employer failed to follow the requirements of the statute, however, it was ordered to pay Sims’ attorney fees and costs. The employer’s failure to follow a clear directive from the Iowa legislature likely cost it tens of thousands of dollars in attorney fees. It may have only cost the employer a few hundred dollars to contact its attorney and ensure that it was complying with the statute.

Photo on Flickr by singsing_sky