Category — Workplace
Our very own HR Law Matters contributor Jim McCabe has written an insightful analysis on whether employers can prohibit employees from secretly recording conversations in the workplace. The article was published yesterday on Law 360 and can be viewed here.
The article discusses the types of legal challenges to policies and practices limiting secret workplace recordings that have been brought under federal whistleblower statutes, federal nondiscrimination laws, and the National Labor Relations Act.
Jim’s article reviews these challenges and offers thoughts on the risks employers face when they consider enacting or enforcing such policies on secretly recording conversations in the workplace. He offers considerations all employers must weight before deciding to take an action — such as terminating an employee — for secretly recording conversations.
This article is a must-read for employers, whether they have such a policy, have considered creating one, or just want to be sure they are aware of the benefits and risks such a policy could have for their workplace. If you have more questions or want to discuss this topic further, be sure to call or email Jim — he’d be happy to hear from you.
March 10, 2015 No Comments
I recently read a brief article regarding the former Captain of “The Best Damn Ship in the Navy.” The article, an interview with Capt. D. Michael Abrashoff, formerly Captain of the USS Benfold (shown below), specifically focuses on his view that safety must be a top priority in any workplace. As he says, even on a ship safety is something that you cannot just “order.” Rather, safety is something that has to be part of every individual’s daily thinking — from the Captain all the way down to the lowest ranking sailor.
Captain Abrashoff’s perspective is useful for any workplace leader or any HR professional with responsibilities for workplace safety — and his point would be that every leader and HR professional has that responsibility. The Captain offers some points worth considering and taking to heart in creating or reviewing your own safety program:
- Creating a culture of safety is a must.
As he notes, even the Captain of a ship cannot “order” safety. A belief in the importance of safety becomes a “culture of safety” when it permates everything. Everyone has to feel the importance of doing every task safely.
- When employees are injured, they don’t feel safe and that affects performance, not just medical costs.
Safety affects the success of the organization as a whole. It cannot be compartmentalized or just made a facet of certain actions or obviously dangerous situations; it must be considered in everything that is done and recognized in everything that is not done too. Safety impacts the bottom line in more than just lost work time, medical costs and workers’ compensation claims.
- A safety culture takes actions, not just words.
Captain Abrashoff not only scheduled training on safe practices and improvements, but he attended the training and participated in the initatives right along side everyone else on the ship. By sending the message that safety considerations applied to everyone, he helped communicate the right message. As he says, “Every sailor knew that I felt their safety was a top priority of mine and not just lip service.”
- Any sailor could stop any process if they thought safety was being impaired.
- Any sailor had a direct line to me if they thought their chain of command wasn’t sufficiently concerned or didn’t see what they were seeing.
These two concepts are key to an effective safety program. Employees will not believe there is a real commitment to safety if they have no role in it or if they are required to proceed with any action they consider unsafe. Knowing they have the right to say “stop” and that they can go to the top if they need to — even in a super-heirarchical organization such as a branch of the military — underscored that the Captain was serious about safety. That made the workplace safer.
While a Navy ship is not your regular “workplace,” the lessons of Captain Abrashoff’s experience offer great guidance to HR professionals and leaders in any workplace.
October 28, 2014 No Comments
Over a year ago, I wrote our first blog post on HRLawMatters.com. It was about a favorite phrase of labor and employment lawyers: “No good deed goes unpunished.” It discussed how employers doing “good deeds” for employees was often the right thing, but that if not done thoughtfully and carefully, doing good deeds can lead to regrets and “punishment.”
We see this all the time in our practice. For instance, a manager is demoted into a non-management role rather than being terminated outright for poor performance. Despite the risks of this decision, the employer thinks it is helping him by not terminating him. But when the employee fails miserably in the non-management role, he is fired. He sues, largely because of the “indignity” of the demotion prior to his termination. There might have been no lawsuit (or at least a much simpler one), if the manager had just been fired. The employer’s “good deed” of demoting him first rather than firing him blows up in its face.
While this type of “punishment” for attempting good deeds happens often, I am not totally against doing “good deeds.” My faith in them was reaffirmed recently while I was traveling with my family. My wife, my two young kids and I were flying home. None of us had seats together on a completely full flight, so we had to do some seat swapping once on the plane so each kid had a parent sitting with them. [Read more →]
April 4, 2013 No Comments
Jimmy Robinson, one of our Labor & Employment Group members, wrote about the FMLA for another one of our Firm’s blogs this week. Since the FMLA is always a topic of interest to HR professionals, we thought we’d re-post it here.
You can check out the blog post in its original location, or just read the content below. Enjoy, and thanks Jimmy!
REMINDER: All employers covered under the Family and Medical Leave Act (”FMLA”) were mandated by the U.S. Department of Labor (DOL) to display the new FMLA poster by March 8, 2013.
Background: Twenty years ago, President Bill Clinton signed the FMLA into law. The law, requiring all employers with 50 or more employees to provide job-protected and unpaid leave for qualified medical and family reasons, ranks as one of the most insidious and complicated federal statutes for employers. Instead of using the FMLA’s 20th anniversary as a catalyst to provide FMLA clarifications, the DOL instead, issued additional federal regulations that implement statutory changes ensuring the FMLA will continue to be one of the biggest compliance headaches for covered employers.
Poster Revisions: The poster revisions include the updated language outlining the rights involving military leave, military caregiver leave, the expansion of the number of families of veterans covered, an expanded definition of a covered service member to include veterans discharged within the past five years under conditions other than dishonorable and the FMLA eligibility update for flight attendants and airline flight crews. To download a copy of the poster, click here . [Read more →]
March 15, 2013 No Comments
The last post, Part 1, set forth the first five items on a wish list from an attorney’s perspective – specific ways in which a Human Resources department can minimize problems down the road. The final five items are just as important. Read on … [Read more →]
February 14, 2013 No Comments
Human Resources professionals have a job that requires a great deal of effort – a good HR Manager will stay on top of developments in employment law; establish sound, consistent procedures for managing typical staff issues, such as leave requests, on-site injuries, and separation from employment; and cultivate good relationships between employees and management. From the other side of the phone line, however, comes a wish list from an attorney’s perspective – what the Human Resources department should consider doing to help minimize difficulty down the road and ensure as successful an HR year as possible. [Read more →]
February 12, 2013 No Comments
Our firm’s latest “Advisory” just went out this afternoon explaining the D.C. Circuit Court of Appeals‘ ruling from last Friday that President Obama’s “recess” appointments to the National Labor Relations Board were unconstitutional, and therefore the Board was without the required quorum to act in a case from last year in which it found a soda-bottling company had committed an unfair labor practice.
This case involves a fascinating legal issue of the interpretation of the U.S. Constitution and the separation of powers between the Legislative and Executive branches (at least for those who find such things fascinating). This decision is also good news for a particular soda-bottling company that challenged the NLRB’s decision. [Read more →]
January 29, 2013 No Comments
The horrific Newtown, Connecticut elementary school massacre has brought the gun control debate front and center. But gun violence is not just in our schools. In August, a former employee shot and killed a co-worker near the Empire State Building before being shot by police himself, and eight bystanders were injured in the shoot-out. A 30-person Minneapolis sign company was decimated in September when an employee who was discharged shot and killed six people, including the company’s founder and a UPS delivery driver, and wounded two others before taking his own life. In November, an Apple Valley Farms employee shot four co-workers at a chicken processing plant in Fresno, California, killing two of them, before turning the gun on himself. Not long after, a ConAgra Foods employee in Indianapolis fatally shot his co-worker outside a break room, then killed himself. Two other workplace violence incidents, in Pine Bluff, Arkansas (an employee fatally shot her co-worker) and Manteno, Illinois (an employee shot and wounded his co-worker), took place in July, 2012. [Read more →]
January 3, 2013 No Comments
Men Only, Boxer Briefs, & No Fingerprints — Abercrombie & Fitch’s Employment Policies Could Ground Its Private Jets
Retailer Abercrombie & Fitch has been known to push the envelope at times. If you’ve seen their half-naked male models posing in store windows in only a pair of boxer briefs, then you know what I’m talking about. Nonetheless, it still may be surprising to learn that Abercrombie’s CEO only hires all-male flight attendants to work on his private jets and requires them to wear only polo shirts, jeans, boxer briefs, and flip flops as their uniform (unless it is less than 50 degrees outside, of course).
As reported in a recent Huffington Post article, Abercrombie’s “Aircraft Standards Manual” is full of bizarre and sometimes outright ridiculous requirements. For example, it requires cabin attendants to remove all loose advertising and inserts from the 13 specific magazines that are stocked in the aircraft’s credenza, as well as the newspapers which are brought on board. The manual also contains a five-point set of instructions for seating the CEO’s two dogs.
A review of the Manual may also leave you wondering, “Can they really do that?” Well, after reading some highlights from the 47-page Manual, my initial impression is that they probably can – after all, requiring employees to constantly check all areas of the plane (including seat belts) for finger prints, and place eight (and no more) tri-folded napkins behind the bathroom vanity does not appear to violate any employment laws.
However, is there a legitimate business reason for only hiring men as flight attendants? Title VII prohibits discrimination based on gender unless there is a bona fide occupational qualification, (“BFOQ”) for the discriminatory employment policy. Essentially, the BFOQ defense allows for exceptions to Title VII if the job is truly defined by sex. For example, the restaurant chain Hooters, has been sued on numerous occasions because of its policy to only hire female wait staff, yet it somehow manages to shake the Equal Employment Opportunity Commission (“EEOC”) by arguing that its waitresses are there to provide “vicarious sexual entertainment.” Abercrombie may be skating by as well because so far, it does not appear that any females have challenged Abercrombie’s men-only hiring practices. (Considering all the requirements of the Manual, perhaps few people want to work on its CEO’s plane?)
That does not mean, however, that Abercrombie is free from all legal issues. Abercrombie has been the subject of employment lawsuits alleging discrimination on the basis of race and gender. Now, Abercrombie can add age discrimination to that list because the Aircraft Standards Manual was disclosed as part of a lawsuit brought by a former Abercrombie pilot who alleges that he was terminated because of his age and as part of a move by Abercrombie’s CEO to hire only young men as part of his flight crew.
So, what do you think about the Manual? Do you think it is evidence that Abercrombie’s CEO is “obsessed with youth” (as the lawsuit asserts)? What about the apparent hiring of just men for the aircraft staff? Do you think that could be allowed? Check out the article here and let us know.
November 9, 2012 No Comments
Many employers are committed to promoting and maintaining a diverse workforce. But why do employers value diversity? Does diversity really affect a company’s balance sheet? Or does diversity only have abstract value?
A brief that was recently filed with the U.S. Supreme Court argues that some employers seek diversity as a tool for increasing revenue and remaining competitive in global markets.
The Supreme Court recently held oral arguments in a case involving affirmative action policies in higher education. The case involves a challenge to the admissions policy at the University of Texas — a policy which considers an applicant’s race as one of several relevant admissions criteria.
Notably, dozens of America’s largest employers (including Proctor and Gamble, IBM, United Airlines, Viacom, Pfizer, Xerox, and Cisco) filed an amicus “(friend of the court”) brief in support of the University of Texas’ admissions policy. These employers argue that having and recruiting a diverse workforce is “a business and economic imperative” that makes them more competitive and increases overall revenue. [Read more →]
October 22, 2012 3 Comments