A Day without Who? Immigrants? Women? Or Maybe…?

February 27, 2017

On Thursday, February 23, 2017, in protest against President Trump’s immigration policy, people nationwide participated in “A Day without Immigrants.” As part of the protest, many businesses closed their doors to show what our nation would look like without immigrants. In addition, many immigrants simply did not go to work.

As a result, many of those workers are now out of a job! Am I getting ready to get political here? Maybe, but this nonsense has to stop, and people have to move on! I look at some of these protest, especially this one, as an excuse to skip work. There are other methods to express one’s political opinion.

Twelve workers at one restaurant found this out the hard way. They are without a job after getting fired for skipping work as a show of support for “A Day without Immigrants.”

The restaurant workers were all Hispanic and stated it was important to them to participate in the national protest. Ok, but don’t whine now. The restaurant owner put out statement that he has a “zero tolerance policy for no show/no call incidents and the 12 employees violated that policy.”

Generally speaking, employees working in the private sector do not enjoy free speech rights, and can be fired for what in the public sector would be protected as freedom of expression under the 1st Amendment. Now I must at least acknowledge that there does exist a statute called the National Labor Relations Act, which, under the right circumstances, protects employees who engage in political advocacy. In, there was a case way back in 1978 whereby the Supreme Court held that Section 7 of the NLRA protects employees when they seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” More specifically:

The “mutual aid or protection” clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to … appeals to legislators to protect their interests as employees … To hold that activity of this nature is entirely unprotected—irrespective of location or the means employed—would leave employees open to retaliation for much legitimate activity that could improve their lot as employees.

Fast forward to thirty years later. The NLRB expounded upon these principles in a General Counsel Memorandum, Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy, which specifically addresses protections for employee protests for immigration law reforms. It offers some good news for employers. 

The memo discussed three categories of political advocacy by employees—non-disruptive political advocacy, on-duty political advocacy, and leaving or stopping work to engage in political advocacy. Each receives a different level of protection (or non-protection):

  • Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, which takes place during the employees’ own time and in non-work areas = protected
  • On-duty political advocacy for or against a specific issue related to a specifically identified employment concern = subject to lawful and neutrally applied work rules
  • Leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern = subject to restrictions imposed by lawful and neutrally-applied work rules

What does this mean for the 12 employees fired by the restaurant? If the employer had a bona fide and consistently applied zero-tolerance policy for no-call/no-shows in place at the time, then the NLRA likely does not protect those employees for their participation in the “Day Without” strike. If, however, the employer didn’t have a policy or it is inconsistently applied, the employer may have NLRA issues resulting from the terminations.

Last week’s protest was the first “Day Without…” planned. What’s next, “A Day without Women,” is set for March 8, which may raise Title VII sex discrimination issues if you choose that day to start disciplining employees for political advocacy. If, however, you plan to hold employees accountable for their political activities that draw them away from work without permission, now is as good a time as any to review your work rules to ensure they will permit that accountability.

What’s next? “A Day without Men?” “A day without African-Americans?” “A Day without a Member of the LGBT Community?” Or Maybe a “Day without Business Owners” and they close their doors and now workers across the country will be without pay for that day. Oh well, let me not get too crazy!



Holding Exempt Employees Accountable for Their Time!

February 20, 2017

First, let’s define an exempt employee: Under the Fair Labor Standards Act, employees are owed overtime pay if they work more than 40 hours in one week (or over eight hours in one day in California). To be exempt from this law, you need to meet certain criteria, such as managing two or more people, having advanced skills and working independently, and making a certain level of salary.

The person managing your business almost certainly qualifies for this exemption, since he’s managing others and has serious responsibilities. This means he can be paid a salary and isn’t owed any overtime pay, regardless of how many hours he works. Allowed deductions are rare for exempt employees.

Your last employee took advantage of this and worked as few hours as possible, while still pocketing his entire paycheck. Understandably, you don’t want this to happen again. And you don’t have to let it.

Being exempt doesn’t mean employees can set their rules and hours

In theory, exempt employees should be allowed more flexibility, because they are being paid to do the job, not to work certain hours. But it doesn’t mean that you, as the boss, can’t set requirements for exempt employees as well. Saying that they must be in the office during core business hours (which can vary depending on your business) is perfectly fine. Saying that all exceptions must be approved by you first is also fine.

The prior approval is only necessary when you have an employee who takes advantage of the situation like your previous manager did. Otherwise, you can likely trust people to go to their doctor’s appointments and children’s school programs without having it damage the business. Most people will behave responsibly.

If an employee violates your trust, you can sit down and say, “We need you to be here Monday to Friday from 8 to 5 with no more than an hour for lunch. If you leave without permission again, we’ll have to write you up.” Treat repeated violations the same way you would with a non-exempt employee (someone paid by the hour). Too many violations and you fire the person.

Set expectations from day one

Since you’re hiring someone new, in the job interview you can lay out the expectations. This should include everything from: “You always need to put in at least 45 hours per week. We don’t care when you do it, so long as the hours are met” to “If you want to work at home, you can do so, but not more often than one day per week.” You are the boss and you set the rules. If you’re clear during the hiring process, you will (hopefully) hire someone who is a good fit from day one.

Ask about transportation in the interview

Lots of entry-level jobs ask if you have reliable transportation, but we don’t tend to ask that in management interviews. We assume that everyone making a good salary will have a functioning car, which isn’t always the case. There’s no need to dwell on this question, just say, “Reliable transportation is needed for this job. Do you have reliable transportation?” Please note, unless this job requires driving as part of the job — visiting sites, doing sales calls, etc. — you shouldn’t ask if they have their own car. It doesn’t matter if they take the bus, an Uber, walk or ride a unicycle to work; it only matters that their method of arriving at work is fairly reliable. Everyone has car problems from time to time, or the bus comes late or the unicycle gets a flat, but that should not happen regularly.

Address problems immediately

Don’t wait! If your new manager calls in sick two Fridays in a row, sit down with him and address this potential issue. If he’s gone for multiple doctor’s appointments in a week, ask him if everything is OK and encourage him to call your Employee Assistance Hotline — if your company has one — if he needs help. Keep in mind that doctor’s appointments may be covered under the Americans with Disabilities Act, so if he needs accommodations, be sure you provide those.

The key to managing an exempt employee’s hours is to be upfront from the start. Then you’ll be good to go.


A Favorable Decision: Not Granting Additional Leave of Absence

February 13, 2017

Medical leaves of absence continue to confound employers. Under the ADA, as well as under some state law, an employer must consider an unpaid leave as a reasonable accommodation. An unpaid leave of some limited duration, however, will be reasonable in most cases.

When is an employer free to deny an employee’s request for a leave as an ADA accommodation? A recent case, Williams v. ATT & T Mobile Services, helps to shed at least a glimmer of hope.

Kirsten Williams worked as a Customer Service Representative for AT&T Mobility Services. She also suffered from depression and anxiety attacks. Those issues caused frequent absences from work for the duration of her employment, from 2007 through 2014. Those absences resulted in disciplinary warnings each year.

Beginning in February 2014, Williams started to seek FMLA leave for her issues. AT&T denied that request, however, because she had not worked the required hours (1,250) the prior year. Instead, AT&T granted her short-term disability for two weeks, and conditioned any further leave on its receipt of medical documentation. When Williams failed to meet three different deadlines (after three different return-to-work extensions), in July 2014 AT&T finally terminated her employment for excessive absences.

The Williams decision is an interesting read on attendance as an essential job function and the types of jobs for which flexible work arrangements are not reasonable, but I want to focus on the aspect of the decision discussing AT&T’s denial of any additional leave as a reasonable accommodation.

An employer is not required to keep an employee’s job open indefinitely (don’t go crazy with that last statement!)

In the present case, AT&T provided Williams with retroactively approved a leave and allowed her to retain her position for many months before terminating her in July 2014. Williams submitted an evaluation from her doctor that provided a return date of August 15, 2014, but the note stated that this date was only an estimate. Given that Williams had a history of taking leaves, that her condition failed to improve during those leaves, and that she repeatedly failed to return to work by dates on which her treatment providers had previously estimated that she would be able to return, requiring AT&T to grant further leave as an accommodation would be unreasonable.

Employers, the ADA does not mandate all accommodations; it only calls for reasonable accommodations. How you handle an employee’s medical issues will determine the scope of your required reasonableness. Did you try to work with the employee? Did you have an open dialogue with the employee about essential job functions, the limitations of the condition, and potential solutions? Did you already grant (an) accommodation(s) that failed? Once you deny an accommodation request, you should prepare to defend that decision before a judge and/or jury. Will that judge or jury view your actions as “reasonable” or “unreasonable”? If the answer is the latter, then you might want to reconsider your decision, until your actions tip the scale the other way. The Williams case presents a good example of an employer that tried to work with an employee, and was rewarded for it in her inevitable lawsuit.

Now look, be reasonable. I know it can be very frustrating with the business of granting leaves of absence and the person not returning on a timely basis. This case helps, but is not determinative in every given situation. Employers need to review ALL of the facts with their respective counsel to determine a proper course of action.


The Impact of Trump’s Immigration Ban on the Workplace!

February 5, 2017

Ok, I am trying not to jump into the political madness that is going on but now I must do to certain inquiries. It’s concerning President Trump having signed an Executive Order entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” Section 3(c) of the Executive Order suspends the entry of citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen into the United States for 90 days.  Section 3(f) of the Executive Order permits the Secretaries of the Department of Homeland Security and State to recommend including additional countries to the list.

Over the weekend, at least four federal courts issued emergency temporary restraining orders forbidding the Department of Homeland Security (“DHS”) from removing individuals affected by the entry ban from the United States.  These injunctions are generally limited to individuals physically in the United States.  They do not prevent DHS from instructing airlines to refuse carriage to a citizen of an affected country to the United States, and do not require DHS to release affected individuals in the United States from detention.

Additionally, over the weekend, DHS announced that the travel ban would not effect individuals that hold lawful Permanent Resident Status or “green cards.” Given the state of flux in this situation, California employers would be advised to cancel all international travel for its employees whose places of birth are in one of the affected nations.

This Executive Order does not affect US citizens.  However US citizen employees whose ethnicity may be traced to one of the affected countries may encounter additional scrutiny upon returning to the United States after foreign travel.  Additionally, in order to avoid additional inconvenience, California employers would be well served to ensure that their employees arrive in the United States at a port of entry closest to their final destination.

As I have stated in my “Active Shooter” training seminars we are living in different times. As a nation, we are going to see things we have never encountered before. Whether it is Executive Orders, legislative enactments, active shooters or a domestic or international act of terrorism. We must be aware, be vigilant, and safe!