Emojis: Any Possibility of Discrimination and Harassment?

February 25, 2019

Can you believe “Emojis” are now entering the harassment and discrimination workplace litigation lawsuit arena! Logically, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases. And now we have in federal discrimination cases.

While harassment cases dominate these filings, it’s not just employees who are using 🍆 to establish a hostile work environment. Employers are using employees’ use of emojis to respond to alleged acts of harassment (such as 😄, or 😉, or 😉) to help establish that the alleged hostile work environment was either welcomed or subjectively not offensive.

For example, in one case the court held that the plaintiff’s use of a smiley face emoji in a text message to her accused harasser helped establish an absence of a hostile work environment. In other case these emojis were at issue: 😉 😘 and 😉; and (😊).

Honestly, there is another side of the coin. You might have heard when celebrity Chef Michael Isabella was sued for sexual harassment. In his case he referred to an attractive female customer as “corn” afterwards’ one of his chef’s commented that one woman was “so hot, he’d eat the corn out of her s—.” The lawsuit alleged further acts of harassment via text messages with corn emojis 🌽. This was obviously way out of line.

The question that arises is whether or not employers now need a policy against the use of emojis in the workplace in any form of communication. Emails, text messages or any other form would be the concern. My opinion, at this time, is “not really.” My reasoning is simple because most employers already have such a policy under their “harassment” policy. You do not need a separate policy to forbid your employees from using what is becoming an acceptable form of communication.…

We can still have a healthy debate over the professionalism of emoji use in business communications but a common sense attitude should be all that it takes. There are surveys out there that have stated nearly half (41%) of workers use emojis in professional communications. And among the senior managers polled, 61% said its fine, at least in some situations. My sense is that your view of this issue will depend on a combination of your age, and your comfort level with technology.

As for me, I use emoji all the time, even at work. Email is notoriously tone deaf. It’s easier for me to drop a 😊 into an email or text message to convey an easy response. Especially when I am driving! Just kidding! In other words, 😁. Emojis are 👌, and it’s perfectly fine to ❤ them at work 👍.


Do You Know How to Spot an Employee at Risk for Violence?

February 19, 2019

Last Friday afternoon, an employer informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.

After the news of this tragedy broke, reports surfaced of Martin’s history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.

A criminal history of violent arrests and offenses is not necessarily a predictor of workplace violence. Still, there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.

Research has shown that these warning signs include:

  • A chronic inability to get along with fellow employees
  • Mood swings and anger control issues
  • Expressions of paranoia or persecution. Being a “victim”
  • A history of problems with past jobs and and/or personal relationships
  • An inability to get beyond minor setbacks or disputes at work
  • A fascination with guns, weapons, or violent events
  • A sudden deterioration in work habits or personal grooming
  • Signs of stress, depression, or suicidal ideation
  • A major life problem, such as divorce or legal problems

If one more of these red flags surface, it is recommend that you refer this employee to seek attention through the company’s employee assistance program, for assessment and treatment.

If you are compelled to fire an employee who you think poses a risk of violence, it is recommended that you take further steps to mitigate against the risk of your termination transforming into a workplace tragedy.

It is highly recommended that employers consider following:

  • Consider a professional threat assessment
  • Consider using a neutral manager or outside security consultant to carry out the termination
  • If there is manager or supervisor who has been the object of threats or anger, that person should not be the person to conduct the termination
  • Have security nearby—not in the same office, but close enough to hear signs of a problem and to act
  • Do not take a break. There are numerous instances of an employee asking for a bathroom break or time to compose him- or herself, and using the break to retrieve weapons
  • Wait until the end of the workday to terminate, if possible. This protects the dignity of the fired employee and minimizes the number of employees on hand should a situation escalate
  • Minimize any reasons why the employee would have to revisit the workplace. Mail a check; have uncollected belongings sent to the person’s home via a delivery service
  • Allow the person as much dignity as possible, but be brief and to the point. Do not get into a back and forth
  • Emphasize any severance benefits and outsourcing help that may be available. Some organizations decide they will not contest unemployment or offer the option of resigning.

As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against these kinds of tragedies, a few preventative steps can go a long way to putting you in the best place to deter and respond.

As many of you are aware, we offer active shooter training through our violence in the workplace preparedness program. If you would like some assistance in this area please feel free to contact us.

Two Articles: eVerify & Arbitration Agreements

February 11, 2019

There is good news and bad news regarding eVerify.

Good News:

The President’s signature on the continuing resolution reopening the government brought eVerify back to life.  eVerify is now back up and running and accepting employee information.

Bad News:

eVerify employers now have a limited time to enter the employee information for every person they hired in the last thirty-five days.  Employers should expect slow/sluggish performance from the eVerify system and longer than normal response times when contacting eVerify for assistance while the backlog of data and requests for service are processed. With another “possible” partial shutdown on the horizon, eVerify may be interrupted again.

What it Means for Employers:

The partial government shutdown did not affect an Employer’s obligation to create an I-9 Employment Eligibility form.  All employers (eVerify and non) are required by law to create an I-9 form after employment is offered and no later than the employee’s third day on the job.  Employers should store I-9 forms in a filing system separate from other personnel records.

U.S. Supreme Court Provides More Guidance on Arbitration Agreements

In the last two weeks, the nation’s high court issued two opinions concerning an important issue relating to enforceability of arbitration agreements, namely, who decides the “gateway” issue of whether or not a particular dispute is arbitrable—a court or an arbitrator?  According to the Court, if the arbitration agreement contains a provision expressly delegating issues of arbitrability to the arbitrator (rather than a court), that provision governs, and a court does not have authority to decide the issue.  There is a limited exception to this principle, however.  If the dispute involves transportation workers who are involved in interstate commerce, the issue of arbitrability must be decided by a court because the Federal Arbitration Act (“FAA”) expressly states that it does not apply to contracts of employment for such workers.  Thus, even if an arbitration agreement with an interstate transportation worker includes a clause delegating arbitrability issues to an arbitrator, a court still must decide the issue of arbitrability in that limited context.

Medical Marijuana Bill Pending Could Change Terminations for Use!

February 4, 2019

Employers and employees continue to be somewhat in the dark about the use of marijuana since California (and other states) has legalized the use of medical and recreational marijuana.  These laws have placed employers in a tough situation as they grapple with crafting and enforcing workplace drug policies that comply with an area of the law that is arguably unsettled. Let’s clarify.

Marijuana remains a Schedule I drug under federal law, and California employers may maintain and enforce policies prohibiting its use. And California employers are not required to accommodate an employee’s use of medical marijuana while at work.

But that may change soon. In February 2018, a bill known as AB-2069 was proposed that would amend the California Fair Employment and Housing Act to make users of medical marijuana a legally protected class. This means they would be protected from employment discrimination and entitled to reasonable accommodation. My obvious concern is that every person who smokes marijuana will go to one of those “$40.00 doctors” and easily obtain a medical marijuana card. Having a medical condition will become commonplace which will open the door to more disability claims, an issue which is already out of control in California.

AB-2069 is still working its way through the legislature. In the meantime, let’s take a look at the evolution of medical marijuana law in California.

In 1996, California became the first state to legalize medical marijuana. Proposition 215 legalized the cultivation and use of medical marijuana for the treatment of illnesses “for which marijuana provides relief.” Recognizing the need for a distribution system, the California legislature then passed SB-420 in 2004. This permitted patients to form nonprofit medical cannabis collectives and protecting the cultivation and distribution of marijuana for medical purposes.

As a result of Proposition 215 and SB 420, Californians were able to easily obtain medical marijuana prescriptions for seemingly any medically related reason.

In 2008, the California Supreme Court ruled in Ross v. Raging Wire Telecommunications, Inc., that California law does not prohibit an employer from refusing to employ, much less accommodate, a medical marijuana user, even if the marijuana use is permitted under California law. The state Supreme Court held that the state’s disability discrimination laws do not require employers to accommodate illegal drug use, even if prescribed for medical purposes. And because marijuana is still illegal under federal law, the employer in this case was not required to accommodate the plaintiff’s use of medical marijuana.

The growing acceptance of marijuana use culminated in 2016 with the passage of Proposition 64, which legalized the recreational use of marijuana in California. The sale of recreational marijuana became legal in California on January 1, 2018.

California legislatures may look for guidance from other states. Currently there are eleven other states that have laws protecting medical cannabis patients from employment discrimination: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island, although the level of protection varies from state to state. California — surprisingly — does not currently have any such protections. But if enacted, AB-2069 would undoubtedly create a host of issues for employers with operations in California.

There is a glimmer of hope. The pending AB-2069 includes two critical limitations. First, it explicitly states that employers may discipline or terminate an employee who “is impaired” at work or during work hours due to the use of cannabis. But it is difficult to know when someone is under the influence of cannabis. Unlike alcohol, where Breathalyzer tests may show the exact level in a person’s blood, there are no available tests that show the level of impairment for marijuana at a specific point in time. This had been a longstanding issue. Drug tests show only that marijuana was consumed within the past 30 days or so. Therefore, as a practical matter, it may be difficult for employers to prove that an employee was under the influence of marijuana at work. Second, AB-2069 acknowledges that because marijuana remains illegal under federal law, California employers must be allowed to refuse to hire or may terminate a marijuana user if employing the person would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

For now, employers with operations in California may continue to treat medical marijuana (and recreational use) as an illegal drug that need not be accommodated in the workplace. But even if AB-2069 does not pass, we are likely to see similar bills seeking to protect medical marijuana users from employment discrimination.

Employers with California operations would be wise to plan ahead and consider policies for future implementation in the event that California joins the growing list of states protecting medical cannabis patients in the employment context.