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Employment Law Update

Making faces doesn’t count as retaliation

July 18, 2021 by

By Mike O’Brien Not every negative consequence amounts to retaliation In asserting a claim for retaliation, an employee must prove he or she suffered a “materially adverse action.” But that probably doesn’t include someone “making faces” at you. In Fisher v. Bilfinger Industrial Services Inc., the employee alleged that his supervisor retaliated against him by (among other things) “making faces at him.” The First Circuit Court wasn’t impressed. The court noted that “adverse employment actions” are things like “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” “Making Faces,” on the other hand, amounts to “a frivolous claim that does not implicate Title VII.” In the litigation world, we call this a “bench slap.” You can read the full decision here. More limits on non-competes . . . eventually On July… . . . read more

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YOUR CAREER

Potential for disaster when you serve on a volunteer board

July 14, 2021 by

By Lynne Curry Sometimes you take on work for which you aren’t paid—because it matters, or because you’ve been talked into it. Perhaps you serve on the board of a non-profit legal aid corporation, offering your experience and knowledge as a law office manager. Possibly you run for your condo association’s board of directors because you want some control over the condominium unit in which you live. Despite the zero pay, you occasionally face situations that require hard work and take every ounce of skill you possess. Recently, I helped a community health clinic 11-person board of directors when they found themselves petitioned by angry former employees and upset community members. They hadn’t expected the depth of allegations against the clinic or its top two leaders, nor to find their… . . . read more

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The pandemic changed employees: Can managers adapt?

July 7, 2021 by

By Lynne Curry “The employees who return to the office after a year of remote work aren’t the employees their bosses remember” says a June 12 Wall Street Journal article.1 Remote work changed how employees want to work. Employees that tasted independence don’t want to give it up. Employees who felt betrayed lost trust in employers. What do managers and employers need to understand? Shift from managing to coaching: Even pre-pandemic, most employees preferred managers who outlined “here’s where we’re going and why” and set clear expectations and goals to those who micro-managed. “After a year of working in solitude,” notes the WSJ article, employees “expect more control over how, when and where their work gets done and to have greater autonomy relative to their managers and organizations.”1 This challenges… . . . read more

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WELLNESS

How managers can help with employee mental health

June 10, 2021 by

By Robert Half Continued stress has long been an impediment to a healthy workplace, especially when it leads to burnout—increased mental detachment from the job and reduced effectiveness. In a 2019 Robert Half survey of managers, a staggering 96% said their employees experience burnout to some extent. And in a related poll, 91% of workers themselves reported feeling at least somewhat burned out. And then came COVID-19 The anxiety and uncertainty associated with the pandemic has further gnawed away at mental well-being for many managers and employees. New stressors for home-based workers often included larger workloads due to leaner staffing, not being able to interact with colleagues in person and the challenge of caring for children or elders during the workday. In a 2020 global study by Qualtrics, SAP and… . . . read more

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EMPLOYMENT LAW UPDATE

New guidance, sort of, about COVID-19 in the workplace

June 7, 2021 by

By Mike O’Brien EEOC provides new COVID-19 guidance The Equal Employment Opportunity Commission (EEOC) has released some new guidance on COVID-19 issues at work. Here are the four EEOC-noted highlights of the most recent update, in late May: First, an employer can require that all employees physically entering the workplace be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the laws prohibiting disability and religious discrimination. Additionally, from the EEOC’s perspective, “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” Second, the federal EEO laws do not prevent/limit employers from offering incentives to employees to get… . . . read more

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MANAGING STAFF

Staffers push back about returning to work

May 20, 2021 by

By Lynne Curry Question: We’re getting enormous pushback from our staff to an email we sent out last week stating that employees need to return to the workplace. At the same time, our organization, which is set up to serve clients, can’t survive if we let all the employees who want to work from home do so. It’s not fair to our clients or the employees who show up at work. Further, when I call those who allegedly work full time but at home during the workday, they often let slip the fact that they’re not working. I’ve been told, “let me turn down the TV” or “sorry I didn’t answer right away, I was out in the garden.” Those who want to work from home insist they’re afraid they’ll… . . . read more

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COMPLIANCE

Wage whispers: Can we stop salary talk?

May 14, 2021 by

By Paul Edwards When one employee finds out another employee makes more money, it can send ripples throughout your entire workplace. In light of the morale damage this kind of talk can cause, you may be tempted to tell employees not to discuss salaries at all. The problem is employees have a legal right to discuss their salaries with other employees because of existing NLRA protections. What is the NLRA? The NLRA or National Labor Relations Act, is a large, developing area of federal law that’s rapidly changing the way you can regulate your employees’ speech, both on and off the job. Section 7 of the NLRA grants union and non-union employees alike the right to engage in certain activities so they may collectively bargain. These protections apply to all speech related… . . . read more

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EMPLOYMENT LAW UPDATE

Three White House announcements for employers

May 6, 2021 by

By Mike O’Brien  bio President Biden calls on employers to provide paid time off for employees to get vaccinated In a White House press release dated April 21, 2021, President Biden called “on every employer in America to offer full pay to their employees for any time off needed to get vaccinated and for any time it takes to recover from the after-effects of vaccination.” The White House statement adds that President Biden will announce “a paid leave tax credit that will offset the cost for employers with fewer than 500 employees to provide full payment for any time their employees need to get a COVID-19 vaccination or recover from that vaccination.” By Executive Order, President Biden increases the minimum wage for federal contractors to $15/hour On April 27 President… . . . read more

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COMPLIANCE

Dare we ask our coworkers: Are you safe?

May 2, 2021 by

By Lynne Curry bio Question: We have a small eight-person office. We don’t interact with the public. Although we’ve worked remotely for the past year, we’ll be moving back into the office in the next few weeks. We’re generally looking forward to it, Most of my coworkers have been vaccinated. We talk on Zoom about how happy we are to have gotten vaccinated and compare side-effect stories. Two of our coworkers don’t participate in these discussions. I suspect they haven’t been vaccinated and don’t intend to get vaccinated. Am I allowed to ask? Is it necessary or appropriate to have different rules regarding masks for different employees; for example, “masks aren’t required unless a meeting includes person “x”? Can we forgo masks all the time and figure any unvaccinated employees… . . . read more

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EMPLOYMENT LAW UPDATE

Court gives guidance on return to work and ADA

April 25, 2021 by

By Mike O’Brien In ADA Case, Tenth Circuit says onsite work may be essential One of the most frequent questions that the writers of these updates receive is whether employers who moved to a remote workplace in response to the COVID pandemic may now recall employees to onsite work. Generally, we’ve advised employers that they are free to require onsite work, although they may need to make exceptions for employees with disabilities under the Americans with Disabilities Act (ADA) or provide leave to eligible employees under the Family & Medical Leave Act (FMLA). On April 8, 2021, the United States Tenth Circuit Court of Appeals (the federal appellate court for the mountain west region), issued an important ADA decision about onsite work requirements in the case of Unrein v. PHC-Fort Morgan,… . . . read more

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