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.

Social Media Policies: New Guidance from the NLRB

Yesterday the National Labor Relations Board (NRLB) issued a third memorandum regarding social media policies. Many employers have adopted social media policies that require employees to observe certain guidelines when participating on social media sites. Employees have been terminated for violating these policies. The NLRB has found that some of the policies and the terminations violate Section 7 of the NLRA. As I've discussed previously, certain provisions of the NLRA apply to all employers, not just those with unions. 

A copy of the entire memorandum can be found here. Below are a few of the highlights:

 

·         The use of broad terms such as  "confidential information" or "disparaging remarks" in a social media policy may be unlawful if not coupled with examples of the types of confidential information or disparaging remarks that are prohibited and do not interfere with Section 7 rights.

·         Restricting an employee's discussion of the "terms and conditions of employment" to other employee's is a violation of the NLRA. Employee's have a right to discuss such topics with non-employees.

·         Advising against "friending" co-workers is prohibited

·         A "savings clause", indicating that the policy is not intended to interfere with the NLRA, will not make an otherwise unlawful policy, lawful.

 

The memorandum provides a variety of different policy excerpts that were deemed unlawful and the reasons for the determination. Thankfully, the memorandum also includes a policy, in full, that was considered lawful. Some of the language in the approved policy may be considered overly broad standing alone, but the NLRB determined that in context and with the examples set out in the policy employee's would not reasonably construe the policy to interfere with their rights. Thus, it's important to include examples which provide limitations to otherwise broad language.

Take time to review your social media policy to ensure compliance with the NLRA. If you currently do not have a social media policy, I recommend adopting one.

Drug Testing Policies

 

Iowa law allows an employer to conduct drug or alcohol tests on employees in certain circumstances if certain rules are followed.

 

1.      You must have a written Drug Testing Policy that has been provided to your employees before you can administer a drug test to an employee.

2.      The written policy must provide the disciplinary and/or rehabilitative actions that will be taken against those who test positive or refuse to test. 

3.      If you test for alcohol you must establish an alcohol concentration level at least .04 or greater as the standard.

4.      You must have require a supervisor involved in the testing to attend at least 2 hours of initial training and 1 hour of training every subsequent year. 

5.      You must establish an awareness program to inform employees about the dangers of drug and alcohol use in the workplace.

6.      You must follow specific procedures when conducting a drug and/or alcohol test.

 

The State of Iowa has produced a work-place drug testing guide for more details and answers about drug-testing in the work-place. If you would like to adopt a Drug Testing Policy for your company you should contact your attorney to ensure that you are following all the guidelines.

Medical Marijuana Use: What This Means for Employers

Last week, the Oregon Supreme Court ruled that employers are not required to accommodate the use of medical marijuana in the workplace. A great summary of the facts and reasoning behind the decision can be found here. The bottom-line is that marijuana, despite being legalized for medicinal uses in a number of states is still considered an illegal drug under federal law, and employers are not required to accommodate its use.

In 2008, the California Supreme Court went one step further by ruling that employers are not obligated to accommodate the use of medical marijuana off-site. The ruling wasn’t available on

the California Supreme Court website anymore, but you can read a summary here.

 

What does this mean for Iowa employers? For now, nothing. But the legalization of marijuana for medical use has recently been creating a stir in Iowa.  In March of this year the Iowa Board of Pharmacy recommended that marijuana be legalized for the purpose of medicinal uses. They plan to propose legislation to the Iowa Legislature during the 2011 session. If the legislation passes, which some predict will happen, what does this mean for employers with a zero drug tolerance policy? Will accommodations need to be made for employees who consume marijuana off-site or on-site?

 

The California and Oregon rulings are only the “law of the land” in California and Oregon.   Those rulings will not be definitive for any situations that may arise in Iowa. In fact, other states with medical marijuana statutes have implicit or explicit protections for employees written into the statute. Any decisions under those statutes will likely be different than the California and Oregon rulings. Clearly, the language of any law passed by the Iowa legislature will be important in determining an employer’s obligation with respect to employees who use marijuana for medicinal purposes. 

 

Even though no Iowa law exists currently, employers should be cognizant that any law passed legalizing medical marijuana use may have major implications on current employment policies. Employers should be ready to implement new policies and address the situation when/if the legislature passes a law legalizing marijuana for medicinal use. Such policy amendments may be required by the implicit or explicit language of the statute or be based on an employer’s individual decision relating to its employee’s medicinal use of marijuana.  Change may be coming and employers need to be prepared.

No Beer? We're Striking!

A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

No Beer? We're Striking!

A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

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

Guns in the Workplace

Florida Governor Charlie Crist signed a controversial fire arms bill today.  On the anniversary of the Virginia Tech shootings and in light of increased violence in schools and the workplace, increased laws controlling guns might be expected. However, the new Florida legislation allows employees to keep legally owned guns locked in their car during work hours so long as the employee has a permit to carry a concealed weapon. The new law is getting mixed reviews.  Employers are understandably upset as they are prohibited from promulgating policies concerning guns on their property.  Proponets believe it is a constitutional right of all citizens.

Currently Iowa employers are still allowed to set forth their own policies concerning guns in the workplace and on company property.