Employment Law Roundtable
Employment law has grabbed more headlines in recent years, particularly due to the more aggressive enforcement of the National Labor Relations Act by the National Labor Relations Board. In particular, Section 7 of the act, which among other things pertains to protecting concerted activity among employees discussing working conditions, has been a source of controversy.
People in the executive suite have discovered that employees can rip their supervisors on social media and face no disciplinary repercussions, just as long as they are engaged in such concerted activity. With this in mind, IB convenes a “pocket” roundtable that will shed some light on what employers can and cannot do with respect to employment law. Here’s almost everything you always wanted to know about employment law and cannot afford to ignore.
Our Expert Panel:
Bob Gregg
Attorney and partner, Boardman & Clark
Troy Thompson
Attorney and partner, Axley law firm
Cay Villars
IB blogger, management consultant and executive coach, Celebrus Facilitation, Coaching and Consulting
GLYNN PATRICK: Let’s open the discussion with social media and the question of where the line is drawn in the sand. The NLRB social media rulings have a lot of employers scratching their heads. We know that employers can’t discipline workers for posting derogatory remarks directed at supervisors on social media sites as long as it’s considered protected concerted activity. But can they at least discourage such behaviors as detrimental to the organization when talking to line staff?
THOMPSON: This is an area of the law that is under development. In the past 20 years, private-sector employers generally were unaware that the National Labor Relations Act had application to them. In the last several years, the Labor Board has been policing conduct by non-union employers, including social media. I think it’s appropriate for employers to have social media policies, but they must be aware of and respect employees’ Section 7 rights. So there are some limitations on what those social media policies can have. They can’t have a rule that would have a chilling effect on the employees’ exercise of Section 7 rights.
GLYNN PATRICK: Can they have a policy regarding an employee’s personal Facebook site? How far into a worker’s home computer or personal network can you go?
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“The gray area occurs when employees engage in statements that disparage the employer or their managers or their employees, and that’s the type of conduct that the Labor Board has taken an enforcement position on that’s contrary to most employers’ idea of fairness.” – Troy Thompson, partner, Axley law firm
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GREGG: The answer is, yeah, you can and probably in many circumstances should have policies, or at least guidance for people. For instance, if I work in a health care setting, the mere fact that I’m off the job does not mean that I have the right to discuss the health care of our patients. If I am entrusted with the privacy information, with the financial and personal identity information of people because I work in finance or any related business, just the mere fact I’m off the job does not give me the right to blog about our customers, clients, or the secret sauce.
So there’s clearly, always has and always will be, reason to tell people that they have a confidentiality and other obligations to our customers, our business secrets, and so on, off the job. The issue that we get right now is that there’s a good deal of confusion about how far that can go. I clearly cannot threaten my co-workers. Even off the job, I cannot make threats against people and say, ‘boy, when I’m going to come into the job, I’m going to do something.’ That clearly flows between off and on the job. But I can make many hostile comments about my company because the labor law gives me the right to be angry about things.
Where the balance and the confusion is right now is that even the NLRB gives you different guidance. They put out a model policy that said, ‘here, use this one.’ And then another NLRB guidance said, ‘oh, no, that would be illegal’ and pointed to things in their own model policy. And so even the attorneys right now, maybe especially the attorneys, are saying, ‘this is a little confusing. We wish they would get their act together. We wish that there would be some decisions that will give us some guidance and stability.’
GLYNN PATRICK: What if an employee is tweeting while at work, and they’re on a break, tweeting ‘well, this happened, and that happened, and so I pretended that I was doing this, but I was really doing that’? Are employers permitted to monitor tweets or to follow their employees as a way of finding out what they’re saying if it’s not normally pertinent to the workplace?
THOMPSON: There’s no legal limitation on employers’ ability to monitor public posts by employees on nonworking time. The gray area occurs when employees engage in statements that disparage the employer or their managers or their employees, and that’s the type of conduct that the Labor Board has taken an enforcement position on that’s contrary to most employers’ idea of fairness. Most employers would expect some duty of loyalty from their employees, and when employees engage in disparaging comments, it’s troublesome to employers. Then to have a federal agency take a position that it’s all right for the employees to do that … that’s a difficult pill for employers to swallow.
GLYNN PATRICK: Particularly at-will employers who do not want to become a case precedent as this law is being sorted out for firing someone that they no longer trust in the workplace.
Wave of the future
VILLARS: I’d like to know how companies handle this ambiguity.
GREGG: This is the wave of the now and the future, and I think that there’s a lot of confusion because every time we turn around, there’s new technology. New technology allows people to do things that we never thought of in our previous policies and that the NLRB and all these other laws never thought of, so we’re seeing a lot of new laws. We’re seeing the law that’s just been introduced in Wisconsin regarding private social media as opposed to public.
I am seeing a number of employers who are, number one, encouraging their employees to get on social media for the company but encouraging them not to use their electronic devices for personal social media while they’re on the clock and, in fact, even saying, ‘keep your cell phones in your car because then we don’t have to worry about policing you while you’re on the job. What you do off the job, well, that’s a different story.’
GLYNN PATRICK: If the company provides the phone, who owns what I do on that phone? If you’ve told me to use that phone, I’m also likely going to use it to text my daughter if a need arises to call her.
GREGG: Well, there’s the issue that is growing. Who owns it? The other side owns it in litigation, because once there’s litigation, there’s an obligation to turn over all, and I mean all, of the information related to the issue at hand. And the moment that you start using either your personal phone for business or your business phone for personal, especially the latter, that’s a business record, and it all comes in. And so your children’s soccer schedule, your doctor’s information, your bookie’s number, they’re all coming in.
And you can argue over what’s personal and what’s not, but the moment you start to mix and match, it’s no different than putting your birthday presents on your business credit card, because once you’ve mixed that record, it’s going to be hard for you to argue that the whole thing is not related to the business and that the business does not have the right to get it, and especially in discovery. In litigation, the other side does not have the right to have that. There are a number of cases on that, so I’m advocating for people, just like you carry a business card for your credit card, you carry a business phone, and you carry a personal phone, and you try not to mix them.
(Continued)
THOMPSON: [Back to the earlier question of social media], in my experience, in the short term, employers are taking a relatively conservative approach when they discover that one of their employees has engaged in disparaging communication on social media. The stakes are relatively high. If an employer takes adverse employment action against an employee such as termination, the Labor Board could order reinstatement with back pay and benefits, and that can be costly. So most of my clients are taking a more conservative approach and waiting for things to shake up.
There’s an interesting fact in that about two months ago a federal circuit court of appeals decided that the Labor Board, over the last two years, has been rendering decisions without a proper majority or proper forum. And so that cast a shadow on all of the Labor Board’s decisions during that period of time. The Labor Board disagrees and takes the position that we’re going to continue on as business as usual. But more importantly, as Bob said, the general counsel issued a memorandum on social media that sets forth the enforcement tone or policy of the Labor Board, and that’s not going to change.
GLYNN PATRICK: Let’s say your employee has a friends-only chat room assumed to be private. Another employee who was invited into that friends-only chat room has made a printed copy of a conversation wherein employee A commented that they falsified their travel records to get extra money because they felt the boss owed them that for putting up with something in a meeting. You know how friends will always explain why they were justified in doing something like that. Now the manager has the print copy. Can you act on that, or is it considered privileged information inside that private-use framework?
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“The moment that you start using either your personal phone for business or your business phone for personal, especially the latter, that’s a business record, and it all comes in [to court]. And so your children’s soccer schedule, your doctor’s information, your bookie’s number, they’re all coming in.” – Bob Gregg, partner, Boardman & Clark
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GREGG: The difference here is how you got it. There’s a really great case where an employee was at her manager’s home. She and her husband came over to the manager’s home for dinner, like people often do, and somewhere after several glasses of wine, the employee started telling the manager how another employee had a private chat room where they were badmouthing company executives. And the manager said, ‘oh, have some more wine. And after a couple of more glasses …’
GLYNN PATRICK: Let’s go to a computer.
GREGG: Yes, after more glasses of wine, the manager talked her into getting on the computer, tapping in, and showing what was on there. They fired that third employee, who then sued, and the company and the manager were in deep trouble because that’s wiretapping. Breaking into somebody else’s private room is an invasion of privacy. It’s a violation of the Electronic Communications Act.
And badmouthing management is exactly what the labor laws protect – wages, hours, terms, and conditions of employment. And so if one were to break in, muscling somebody, coercing somebody, threatening somebody who had the key to get in and have access, whether what they found was a violation of company policy, was unethical or illegal, it would still be an illegal act.
GLYNN PATRICK: In a wiretap, if one party gives permission, did the manager not then argue that this other employee, being a party to the chat room, had given permission to bring them in? Or was the challenge based on the alcohol?
GREGG: It’s no different than getting somebody, anybody, under the influence. Admitting, ‘oh, they signed on the dotted line for the swamp property after we gave them a lot of drinks’ is not going to hold up. But if somebody voluntarily, who has permission, prints it off, comes and reports it, that was not breaking, that was not entering. That is using a valid piece of evidence. And so the issue in this case is how the information came to us. We didn’t break in. We weren’t even asking. Somebody voluntarily gave us that information in a print format. I think that’s fair game.
THOMPSON: Sometimes, in the context of a disciplinary investigation, an employee will deny alleged misconduct. In the course of that same investigation, another employee may accuse the employee of engaging in that conduct. The employer has a right to make the credibility determination as to whose story it believes. And so in that circumstance, the employer could rely on the report of the co-worker that this person made an admission to me that he committed fraud against the employer.
Screen play
GLYNN PATRICK: I talk to a lot of employers; the ones I know make a concerted effort not to check, during a screening process, CCAP records – court filings. Anyone, however, can go online and check someone’s involvement with the court system, as the charges don’t have to be proven to be listed online – only filed. So let’s say that Company X had made a job offer and announced it would be hiring a new insurance officer, and a couple people looked at the candidates and checked them on CCAP and brought in a report that one of them had some blur on their record. Can that be a decision in hiring? If not, what should the employees be told who brought it forth?
THOMPSON: Many employers are surprised to learn that the Wisconsin Fair Employment Act prohibits discrimination on the basis of arrest or a conviction record. There is an important exception to that rule where the circumstances of the presently pending arrest or the past conviction substantially relate to the circumstances of the position. When that occurs, the employer can either decline to hire somebody with a presently pending arrest record or decline to hire somebody with a conviction record to the extent that it’s substantially related.
The issue of whether a conviction is substantially related is usually hotly contested, but it is a viable defense for an employer to raise. If you’re an employer who does business in the city of Madison, to the extent that you are covered by the Madison Equal Opportunities Ordinance, it has a similar rule. But unlike the Wisconsin law, it limits an employer from looking backwards beyond three years from the date of conviction, placement on probation, or parole. So it’s a shorter window under the city ordinance, and the analysis has to occur prior to the decision being made. Under Wisconsin law, that analysis can be conducted at any time.
(Continued)
GREGG: Let’s start with the back part of this, at the employees who looked it up. CCAP is a public record. Every single person in the public has the absolute total right to take a look at public records. And in fact, I will bet if you happen to be a manager or an executive, your employees have looked you up. If you are in collective bargaining on the management side, the union has looked up the record of every single person on the bargaining committee just in case they can use that at some point for whatever they wish to use it for, and it’s public record.
Now, if they bring it into the workplace and started a gossip campaign, that may be different. But if they are informing you, actually, I would probably tend to say thank you. Thank you for being diligent. Please don’t gossip about it. And then you do what Troy said. You take it in light of relevance. Is it directly and substantially related? Someone called me and said, ‘we’re hiring a welder, and we found out they have a conviction record.’ And I said, for what? And they said, ‘possession of undersized fish.’ And I said, ‘I don’t think that one’s related.’ But if it was a game warden they were hiring, that would have been directly relevant. In a financial position, as this one was, do they have a record for anything that had to do with honesty, with financial indiscretion and stuff like that, or was it something totally unrelated?
GLYNN PATRICK: Such as speeding.
GREGG: Yeah, such as speeding. The EEOC has come up with a set of guidelines also on arrest conviction records, and they have said, ‘we believe that they have an adverse impact in some equal opportunity areas, and so we find them suspect.’ And they have imposed the same substantial relationship test. Frankly, if you’re in Wisconsin and you’re in compliance with Wisconsin, especially with Madison’s ordinance, you were probably already in compliance.
The issue is the individualized analysis. It’s difficult in some cases to simply take the title of the conviction and say, ‘therefore, because there are so many things that can lead to that same conviction, that you need to do a little bit more analysis than simply take a look at the title in most cases.’
Liable for liability
GLYNN PATRICK: Let’s move on then to the topic of personal liability and company liability, because at the heart of employment suits is ‘how much is this going to cost, and who is going to pay?’ How much personal liability is involved if a manager transgresses a duty-of-care issue if they’re out drinking with an employee, and then the employee is in an accident on their way home? Where does the line between manager or ‘the agent of the company’ separate, and is a manager ever personally financially liable for the actions of the business?
THOMPSON: In most cases, an employee is going to allege that the manager was engaged in the course and scope of their employment, and therefore the employer is liable for the acts or omissions of the manager when engaged in the course of performance of their job duties. There are times, however, where the employer will defend a claim on the basis that the manager was engaged in conduct not within the course of employment but outside the scope of employment, as in the case of drinking at a holiday party, or getting into an accident after stopping off, or engaging in improper conduct at a social gathering that may be partially sponsored by the company. And it’s a gray area when the employer knows or should have known that the manager and employee were engaging in this conduct.
GLYNN PATRICK: Let me give an example. A manager states that they didn’t hire someone because they were – fill in the blank with gay, old, black, fat, Jewish or whatever. Who is liable, the company that does not have a discrimination policy and wasn’t aware of what the manager did? Or is it the manager who made that side comment to a colleague about his hiring decision?
GREGG: The company. If I can go back to the [previous] issue, you said drinking and driving. In Business published an office parties edition a few years ago, and if one would go back and read that, they would find that it is difficult in Wisconsin for a company to be liable for the after-happy-hour or after-party drinking and driving of their employees, unless they do something special that puts them over that line, because we’re a social host state. However, in the issue of personal liability, there’s a growth area.
Normally in a discrimination case like sexual orientation, race, sex, religion, etc., the state and federal laws, by and large, say that the employer is liable. There are a growing number of laws that allow the plaintiffs to sue the individual manager and collect from their assets as well. Fair Labor and Standards Act, the FMLA, and there is a federal law in race discrimination, 42 U.S. Code 1981, that allows personal liability. And now it seems that every time Congress gets together and makes a new law, they want to impose personal and sometimes even criminal liability against individuals.
So there’s a stack of about 20 different laws now that you can name both the organization and the individual. And to their surprise, line supervisors often wake up finding that they have been named in a wage-and-hour case because they made some dumb decision about not paying people overtime or not having them keep proper records. And sometimes, especially in an economy where the company is shaky, they will choose to collect from the individual manager because there’s a second line of protection for their verdict.
THOMPSON: The vast majority of employers are very committed to complying with the laws that apply to them. They create policies concerning fair employment. They train all of their employees at the time of hire on those policies. They train their managers on enforcing those policies. And when an employee raises a concern, they do a prompt and thorough investigation and take appropriate action to prevent a recurrence and resolve any issues. One of the reasons that employers do that is because ultimately they are responsible for the actions that their managers take. But even in the absence of that, most of them would go through those motions anyway just because it’s the right thing to do.
GLYNN PATRICK: And that would bring up a question about defense. If a manager is being cited personally, would a reasonable defense be that they were not offered training, that they never had a duty-of-care training, that they never had a discussion when they were brought in as a manager from somewhere else, and so there wasn’t that clear expectation that, for example, you can’t buy drinks for co-workers after hours, or call them while they are on vacation and still charge for vacation time?
GREGG: There are a couple of answers. First, every organization has an obligation to provide training to its managers. Our court has said it’s an extraordinary mistake not to give training on the basics, the duty of care of harassment, some of the basics of what you can and can’t do. The laws have been in effect for 40 or more years; it is no longer just negligence, it’s an actual intentional disregard of the obligation by the company to do so. A manager could say that.
At the same time, there are some things the court says you should know just because you’re a human being, and you’re in a supervisory position. And in fact, companies can sue their managers for doing things with intentional disregard of their duty to the company in some circumstances.
One of the tricky questions is, who is a manager? The U.S. Supreme Court right now is deciding a case on how far do you go? Is a lead worker truly a manager that can find the organization and also have some personal liability? Or are they a non-management lead co-worker? And that’s a scary one right now because we have a lot of people who give daily guidance to people, but they don’t have the ability to hire, fire, set wages, or anything like that, so right now that’s an up-in-the-air question.
(Continued)
THOMPSON: It’s also important to note that supervisors are held to a different legal standard in Wisconsin. In the context of a harassment claim, when a nonsupervisory employee is alleged to have engaged in the harassment, the victim has to demonstrate that the conduct was severe and pervasive. That requires multiple instances of harassing conduct. In Wisconsin, when the supervisor is engaging in the harassing conduct, a single, isolated act is sufficient to create a hostile work environment. So employers are generally aware of this and closely monitor their supervisor conduct.
VILLARS: You mentioned 20 [applicable] laws. Are there a couple that are big?
GREGG: The Fair Labor Standards Act. Family Medical Leave Act only applies if you have 50 people, and so for small businesses, that is not an issue. For larger businesses, it is. But larger businesses probably have a human resource function that will help cushion that a little bit. But all you have to do is have one person, and you’re liable for the wage and hour rules. And so that’s probably the big one.
Some of them are not employment laws. They are personal liabilities under things like the Clean Air Act. And so if you’re at a business that has to comply with that, and somebody does a whistleblowing, and they report violations of the Clean Air Act or a variety of other whistleblowing acts, then there can be personal liability of those people who retaliate against them. So don’t retaliate! Know what your protected activities are, and don’t ever retaliate against people.
But I think the Fair Labor Standards Act is probably the biggest one that I would caution people on. That’s the wages, hours, overtime, not categorizing people who are truly employees as independent contractors. Those are the things that I would worry about most.
THOMPSON: And under Davis-Bacon [prevailing wage], there are some criminal penalties under a number of these statutes. I also have a case right now under the MINER Act, so for your construction readers who operate a gravel pit, there is individual liability for supervisors, and I’ve got a case where a supervisor is alleged to have allowed a worker to have performed services without fall protection and was cited and assessed a proposed penalty of $40,000 against the individual supervisor.
On salary
GLYNN PATRICK: Employers don’t want to have the wage-and-hour review and find out they are out of compliance when they are, in good faith, trying to comply.
THOMPSON: There has been an explosion in wage-and-hour claims in Wisconsin in the last five to 10 years for several reasons. First, the Fair Labor Standards Act is New Deal legislation, and it’s difficult for employers to comply with that today.
You have a similar, but in some ways different, scheme of state laws, and so employers might be complying with federal law but simply be unaware of a different standard under state law. Plaintiffs’ attorneys know that it’s very easy to identify a wage-and-hour violation with most employers, inadvertent as it may be.
The interest is increased for plaintiffs’ attorneys because they know that if there’s one employee, there may be a class of similarly situated employees, and that’s where the big money is. Also, attorneys can recover their attorneys’ fees if they prevail in one of these claims. And so from an exempt versus nonexempt standpoint, most employers are generally aware that there’s a rule, that there’s a requirement that the employee be paid on a salary basis. Some employers are unaware that there’s a separate duties test that the employer must establish in order to properly treat somebody as exempt from the overtime requirements.
GLYNN PATRICK: And what about personal leave for determining paid time off? If someone works five minutes out of a morning, should we consider that they’ve worked all morning rather than assess paid time off?
GREGG: This is difficult to simplify. Let’s presume that your people meet the salary-basis test, that they get a salary, but aren’t paid overtime. The general principle is that, salaried, I don’t get paid any more if I work overtime, but I don’t get paid any less if I work under time. Paid time off (PTO) is a good idea because you don’t have to police it. People can call in well if they want to.
THOMPSON: Under federal law, employers are taught that they ought not be tracking the actual hours worked because that is akin to treating somebody as if they are nonexempt. There’s attention here, though, because under Wisconsin law, there is an administrative code provision that states that each employer shall maintain daily time records, including starting and ending times of each day and each meal period for all employees, including exempt and nonexempt. And so many employers are surprised to learn that they are, technically, under Wisconsin law, supposed to keep those records on their exempt employees as well.
We periodically come across employers who have a commission-only employee, and that’s generally going to be in violation of federal and state law. Under federal law, there’s an exemption for outside salespeople. In Wisconsin, the requirement is that the person spends at least 80% of their time on the road selling. To the extent somebody is paying somebody on a commission-only basis, where there is a possibility that the person is going to go a workweek without getting at least minimum wage for all of their hours worked, that’s a violation of the law.
GREGG: These laws were created in the 1930s under the New Deal. Wisconsin prides itself on having the first law on this for any state in the country. Unfortunately, what that means now is we simply have the oldest, most outdated laws in the country. They were designed for a workplace that did not have technology, so you’re talking about spending 80% of your time on the road. People did that in a car or on a train because we didn’t have planes. They were doing 80% of their time on the road.
And now people work from a home office. Does that qualify as an outside salesperson? Often it does not because they are not, under the rules, outside and selling. I guess we have them go out in their parking lot and use their computer in the summer. The laws don’t match the modern age; unfortunately, by the time we get the change, the technology has moved ahead.
VILLARS: What about the rulings about answering workplace emails from home?
GREGG: Uh-huh, that’s a scary one. You think they’re off the clock. You’re still on the hook for the liability for that.
GLYNN PATRICK: I do a lot of work from 10 at night to midnight, emailing employees, not expecting them to answer me then. But have I legally set up the expectation of 24/7?
THOMPSON: It’s okay to have that expectation of those employees who qualify for a bona fide exemption to the overtime rules. The area of risk is when you’re dealing with somebody who has been misclassified as exempt when they don’t fall within the duties test or when you’re dealing with nonexempt employees. And there’s been a lot of litigation recently over an employee who has to check their smart phone to find out where they’re going to go in the morning to receive instructions. Does that now convert an otherwise non-compensable trip into work to one that the employer now has to pay for?
What we find is that after the employee separates employment, the employee will come forward with a claim alleging ‘I worked X-number of overtime hours over the course of the last two years, and incidentally, here is my secret notebook in which I’ve been recording those extra hours for which I wasn’t being compensated.’ And the courts have said that if the employer is not maintaining an accurate time record, then by default, we are going to go with the employee’s record as the best evidence of the hours worked, unless the employer can demonstrate that it’s not credible.
GREGG: We know when they logged on or off. They’ve got their call record, and that’s increasingly important. I am concerned with the policy on work-at-home and off-the-clock and making sure people know they are not supposed to pick up your emails until 8 in the morning, that they are not supposed to tap in from home. Once in a while, we do something that monitors that.
And if they are violating the line to our system that we do monitor on a routine basis, we nail them so that we don’t have these aftermath issues. The flipside of that is if you do call them, that’s paid time if they’re hourly. If you call them too much while they’re sick, is that a sick day that you can actually burn their sick time? If they were on FMLA, are you interfering with their FMLA rights? So there’s a number of complications.
If you do have them legitimately working from home, do you have security there? If they go down the hall to cook dinner and have left the computer on, are they chalking up work time? Their teenager comes in, and they have access to all of the interesting things that are on your system, so it expands our confidentiality issues. A whole lot of things go into the technology of where and when we are working today.
THOMPSON: Courts have said that employers can’t sit back and receive the benefit of unauthorized work. To minimize liability exposure, some employers have adopted policies stating that employees may not engage in unauthorized work, and so travel time is another area where employers have significant exposure or use of a company vehicle. Are they responsible for loading or unloading the vehicle equipment at home and securing it in a locked garage? Are they to pick up a co-worker, transporting them to a work site? Those are all the kinds of issues that can create liability.
GLYNN PATRICK: If in the office you have ergonomic chairs, etc., if they work from home and fall, or they say, ‘well, my computer isn’t set right, and you didn’t buy me a chair, so now I’ve got carpal tunnel,’ where does that cross over from personal responsibility to company liability in setting up an offsite workplace?
THOMPSON: Under the Wisconsin Workers’ Compensation Act, somebody can have a traumatic injury, they can have an occupational exposure, and so a work comp claim can arise in the context of me bending over to pick up a pencil. If my work environment increased the likelihood of that occurring sooner than it otherwise would have on its own, then the employer can be responsible for that. So I think those are issues that we will continue to wrestle with on a case-by-case basis as technology makes it not only possible but attractive for employers to have employees work from home.
(Continued)
GREGG: If I am working from home simply because I go home, and I’m a salaried employee, and I do some work from home on the computer, that’s my private space. It’s none of your business to come into my home if I don’t want you to. You can monitor my computer, but how I keep my home and wash my clothes and so on is my business, not yours. If I am set up with a home industry, and there are many companies that have people who are at-home workers, they are doing piecework at home, they are provided equipment by the company, which they set up in their basement or a home office, they may, in fact, get credit for having a home office or workspace.
Now it is more of my obligation to make sure that they set that equipment up properly and safely. Pool cues and fishing rods are mostly made at home in Wisconsin, because we have some major industries that use at-home workers. And so they come in, set it up, and want to come in once in a while to make sure it’s still safe company equipment. Now I have that obligation. If I am working at home on a routine basis selling, things like that, it’s still my home. I can set it up as I want to.
But if I say I have a disability issue, or I am developing a work-related issue because the ergonomics are such that I need a special chair, then under the rules for that particular issue, I’m not going to look at your house and inspect your stair to kitchen, but I am going to probably provide you the chair or computer assistance that you need.
The volunteer question
GREGG: You can have volunteers for a for-profit organization. You just have to do it very carefully. The Fair Labor Standards Act does not say you can't, but they look a lot more closely. The volunteer issue is being wrestled with for profit, nonprofit volunteer, quote, volunteer fire departments that aren't volunteer, so . . .
GLYNN PATRICK: I think it's being raised in the context of unpaid interns where some people are approaching us saying, ‘I want to work for you for six months as an unpaid intern so that I could get the experience it would take to get me a job in this market.’ And I'm told unless they're getting university supervision and university credit, no way can we offer something coined an internship or take them on in that capacity.
GREGG: And that may, in fact, be true. Whether you were profit or nonprofit, if you're doing volunteers, then you need to go by the rules, and there are rules that allow you to do it. But the safest one for student interns is to be affiliated with and get credits for that, plus following some other rules too.
VILLARS: I think you went right to where my question was, Bob, reading my mind about the volunteer, because there are so many volunteer boards for a lot of our entrepreneurial companies. And I think there'll be a great deal of interest to make sure that people understand that they're doing the right things.
GREGG: Most people on boards are not doing day-to-day work, so they're not out there wiring or making the pool cues or servicing the refrigerators. The biggest issue on volunteer boards is your liability for the finances and other issues of the organization.
GLYNN PATRICK: For which you would want board of directors insurance.
GREGG: Yes.
THOMPSON: When an employer sponsors charitable activities, there are very limited circumstances where the employer does not have to pay its employees for their volunteer work and those charitable activities. In the context of an unpaid intern, there are very few circumstances where it's acceptable to have an unpaid intern when they're working side by side with an employee who's being paid for similar type of work.
GLYNN PATRICK: Okay. That's the biggest thing because during the recession, there was a lot of opportunity for people, at the point where companies could at least afford laying off people, and you had people saying that I need experience in that thing. If I'm going to be laid off for six months, I need to be getting a skill. I see this as training. And the two just couldn't meet, and it seems to be very sad that they couldn't meet somewhere in the middle.
THOMPSON: That's an area where the legislature could take the lead and provide some opportunities for employers to provide that kind of mentoring to encourage them to help do that training because training is a big issue for the manufacturing employers in the state.
Risk aversion
GLYNN PATRICK: What one piece of advice would you give an employer that you think is most pertinent to minimizing risk?
THOMPSON: The best thing employers can do is to adopt a systematic approach of employee performance management where they have a formal process to deal with employee performance or disciplinary issues. Document issues and obtain employee sign-off and buy-in to reduce the number of credibility disputes and increase the employer’s ability to get out of a case quickly. When an employer is fair to its employees, the employee is also going to be more likely to accept responsibility and less likely to file a claim.
GREGG: Identify the people that make decisions and do management training. The key is documentation and consistency, then fairness. Making sure people in charge understand what that means in your company, how we do it here, and make sure that everybody is doing the same thing, and not off on their own tangent because of their zeal to accomplish the department’s mission at the expense of the overall company’s consistency. Train to do things fairly, consistently, and documented.
Sailing Into Safe Harbors
When it comes to navigating the choppy waters of labor and employment law, one way employers can steer away from trouble is by developing a safe harbor provision.
Not only do safe harbors offer a sensible layer of protection, they are also encouraged in certain laws, including the Fair Labor Standards Act, according to attorney Bob Gregg, a partner with Boardman & Clark.
“It says that if you give people, usually in the employment handbook, a little statement that says, ‘if you have concerns that we’re doing it the wrong way, that we are deducting improperly, that we are not paying you right, please let us know because we want to know,’” Gregg said.
Gregg indicated the safe harbor provision also should say the employer will promptly investigate and take any necessary corrective action, and there will be no retaliation for letting management know there’s a problem. ”If you’ve got that, it means that before people can just go in and file a complaint and surprise you, they have to bring it to your attention as the employer and give you the first opportunity to correct it,” Gregg added. “That’s why it’s called the safe harbor. It provides you a moment of calm before the storm hits.”
Attorney Troy Thompson, a partner with the Axley law firm, said every employer should have a safe harbor policy. He noted the Department of Labor has a model safe harbor template on its website, “and it’s important to include that in your employee handbook and train all of your employees on it.”
The training is critical because safe harbors don’t carry the same legal protection if managers intentionally ignore or otherwise undermine provisions in the handbook. Any safe harbor, or any policy, can be overridden, Gregg noted. “Your executive can give good faith to that, but maybe you’ve got the sales manager telling people, ‘I don’t care what the policy says,’” Greg said. “The moment the sales manager or some other manager undermines the policy, then the policy doesn’t exist anymore, and this is crucial.”
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