Category Archives: Workplace Rules and Policies

Over the weekend, the New York Times published a chilling article about employer reliance on credit reports, The Long Shadow of Bad Credit in a Job Search. The main character was a poor guy who couldn’t find work as a shoe salesman after he couldn’t pay medical bills incurred for an injury he suffered after getting laid off (and losing his insurance).

The article points out that employers are actually a bit less likely to check credit reports on applicants than they have been in the past. While previous surveys (conducted by our friends at SHRM) have found that about 60% of employers check credit reports on applicants, that number is now down to about 50%. At the same time, however, many people have seen their good credit ratings go down the tubes in the last five years. So fewer employers are checking, but they may be dinging a higher percentage of candidates for poor credit.

Why do employers check credit reports, anyway? For certain positions, a credit report might reveal pertinent information. You may not want an employee who never pays bills on time to manage a department budget, prepare economic forecasts, or have free access to a company credit card. In many situations, however, poor credit reveals no more than bad luck: high medical bills, divorce, and job loss account for many financial woes. Although there are certainly some people who run up huge debts on luxury items, never planning to pay for them, there are many whose debts are based on sadder — and more mundane –circumstances.

Rejecting these applicants for jobs puts them in a Catch-22: They lost a job, which hurt their credit, which will prevent them from getting a job, and so on. In recognition of this, states are starting to step in and prohibit employers from using credit reports in making hiring and other job decisions. Nine states have passed these laws so far, and more are considering similar legislation. You can find our articles on these laws in State Laws on Employer Use of Credit Reports; for more information on the rules for using applicant credit reports in hiring, including notice and consent requirements, see Can Prospective Employers Check Your Credit Report?

Temporary Office Dog: Richmond

A few years ago, I posted about some of the benefits of bringing dogs to work, including higher productivity, lower stress, better social cohesion, and better teamwork. A recent article in USA Today cites even more research to prove what dog owners instinctively know: Pets decrease stress in a tangible way, by lowering cholesterol and blood pressure levels. They increase our opportunities to socialize and exercise.

In fact, the article cites a 2012 study conducted at a single workplace in North Carolina, which revealed that workplace stress levels of employees who brought their dogs to work decreased by 11% as the day progressed. Employees who didn’t bring their dogs (or didn’t have dogs to bring) saw stress levels rise a whopping 70% in the same timeframe.

All of these benefits help explain the continuing office trend to allow dogs at work. Surveys show that about one in five employers allow employees to bring dogs to work, including the Daily Show and Google. (Those who consider themselves “dog people ” rather than “animal people” have to love their gentle rebuff of the feline: “we like cats, but we’re a dog company.” Me too, The Google; me too.)

Former Office Visitor: Flora

And those are just the human benefits: For the dogs, the benefits might be even greater. Dogs get to enjoy the company of their human companions for more of the day. They get to scrounge scraps from coworkers. They get treats, belly rubs, and head scratches from office dog lovers. And, for some dogs, the opportunity to go to work lowers their stress as much as it lowers ours; it may even save their lives.

Pet ownership is at an all-time high, according to the American Pet Products Association. Almost half of all households in this country have a dog. But it can be hard to take care of a dog when you’re a working stiff. Dogs need to use the facilities, exercise, socialize, and get their mental stimulation, just like we do. If a family member, friend, or paid helper isn’t available to meet these needs, dogs will figure out other ways — ways less friendly to furniture, carpets, and possibly neighbors — to get things done. Older dogs may be fine on their own all day, with the help of some chew toys and a doggie door. But for younger dogs and recently acquired dogs, more supervision is better.

No alarm clock today

That’s my personal angle on the dogs at work issue: It’s a great way to help more dogs get adopted and stay that way. My employer has been dog-friendly for its entire 40+ year history. Once a week, one of my dogs comes to work. Every once in a while, I stop by the office while walking a dog from our municipal shelter, Berkeley Animal Care Services, like red-headed beauty Flora. And recently, I was able to help a friend and her newly adopted dog get over the “home alone” hump by bringing teenage heartthrob Richmond to work with me for a few days. This allowed Richmond to socialize with lots of new people, get used to behaving calmly in a new environment, and have some time to settle in with his new family; now, he’s a successful stay-at-home companion to canine siblings (including little Bimo, pictured above) and human grandparents. (And my own dogs didn’t seem too sad about the opportunity to sleep in.)

Looking for your own dog to bring to work? Visit your local shelter! If you’re in one of the counties that participates in Maddie’s Fund Pet Adoption Days (San Francisco and Alameda County are), you can adopt your pet free on the first weekend in June — and be all set for Take Your Dog to Work Day on June 21.

It was bound to happen: All those Harlem Shake videos on YouTube have finally gotten the attention of the lawyers. According to Law.com, the Federal Aviation Association is investigating safety concerns over a Shake incident by passengers on a Frontier Airlines flight. (You will perhaps not be surprised to learn that the group was led by members of Colorado College’s Ultimate Frisbee team.) Safety concerns were also cited in the firing of a group of Australian miners for their on-the-job Shake performance. (See more in the Law.com article, When the Harlem Shake Bumps Against Workplace Policy.)

The article didn’t even scratch the surface of employees recently fired for participating in dance crazes, including an Oxford Librarian fired for allowing the filming of a Harlem Shake video at the University, and the Gagnam Style 14, a group of young lifeguards in Southern California who were fired, then rehired, after posting their homage video. Ride those horsies straight to the unemployment line, kids! Even Conan O’Brien has gotten into the act, firing an Indian chief, an astronaut, a giant banana, and someone dressed as a pillow, just as they start gettin’ their Shake on. (Okay, so this last one seems to be a parody.)

Some employment lawyers have taken this opportunity to talk about the infiltration of social media into the workplace, draining company resources and lowering employee productivity. I suppose that’s fair enough, and there may be true safety concerns when employees are getting their groove on down a mine shaft. On the other hand, some of these videos look to be real morale boosters. They can even be useful to employers: A local rescue group for older dogs (Muttville) has posted theirs — which includes people dressed as dogs and actual dogs — as a promotional video. At least we can be glad it isn’t thirty years ago, when the Streak was popular! Oh wait, it still is for this fired guy.

Unless you’ve been hiding under a rock, you probably heard about Yahoo’s recent decision to prohibit employees from working from home. The ban, intended to promote collaboration and innovation, will start in June. Almost all of the news coverage I’ve heard and read has focused on a few angles:

• Is innovation really harmed when employees work from home? (The consensus: yes, but productivity is higher when employees work from home, in certain jobs at least.)
• Is this the start of a trend? (To quote the Magic Eight Ball, “my sources say no.” The trade-off makes sense only for companies that must innovate constantly to succeed: the serial innovators, as John Sullivan referred to them on the PBS NewsHour. And Yahoo needs to make some big changes to turn its fortunes around.)
• Isn’t it kind of ironic that perhaps the most famous working mom — other than Michelle Obama — instituted this policy? (You be the judge. Over at the Daily Beast, Ellen Galinsky points out that men are more likely than women to work mainly  from home, and more likely to be allowed to work from home.)

All interesting discussions. What interested me far more, however, was the memo that actually announced the change, sent out by Yahoo’s head of HR (and reproduced here at AllThingsD). If I were a Yahoo employee — or just a Yahoo, as the memo puts it — who had been working from home, and I received this memo, I would be pretty angry. I’m not sure if I would be angry enough to send it to the media, as a number of Yahoos apparently did, despite the all caps heading tagging the memo as “PROPRIETARY AND CONFIDENTIAL — DO NOT FORWARD.” But angry for sure.

The change in policy is bad enough from an employee perspective, especially considering that some employees may have taken the job (or turned down other offers) because of the opportunity to work from home — and arranged their lives accordingly, from child care to pet ownership to buying or renting a home that’s too far away to commute regularly. No matter where you come down on the innovation/productivity argument, or whether you think this change will ultimately help Yahoo rebound, it’s clear that an employee benefit is being taken away.

Which must have made the odd cheerleading tone of the memo hard to take. There’s no acknowledgment that this might be difficult or unwelcome for some employees. There are, however, many references to the company’s culture and identity, from what “being a yahoo” is all about to the need “to be one Yahoo!” to the company’s effort “to become the absolute best place to work.” There’s also an admonition that even Yahoos who “occasionally have to stay home for the cable guy” must use their “best judgment in the spirit of collaboration.” Seriously? Does that mean missing even a few hours of work could harm the company’s success? Could they have come up with a more frivolous reason to miss work? Using the official announcement of what is sure to be an unpopular change in company policy to tout what a “productive, efficient and fun” place you are to work is the kind of HR speak that gets internal memos sent to news outlets by angry employees. I’m just sayin’.

On February 6, 2013, the Department of Labor issued its final regulations implementing statutory amendments to the FMLA. These regulations incorporate the amendments Congress passed in 2010. Among other things, the 2010 amendments:

• tweaked the way eligibility and hours are calculated for flight crews
• expanded the right to take qualifying exigency leave to cover not only employees with family members in the National Guard and Reserves, but also employees with family members in the regular armed forces, and
• expanded the right to take military caregiver leave to cover not only employees with family members who were seriously injured while on active military duty, but also employees with family members who exacerbated a preexisting injury while on active duty and employees with family members who are veterans suffering from a serious injury incurred while on active duty.

About a year ago, the Department of Labor issued proposed regulations implementing these provisions and seeking input from the public on a few key issues, including how to implement the leave provision to care for a veteran. Rather than issuing proposed regulations on this topic, the Department decided to hold off until it had received comments and issued its final regulations. As a result, the Department delayed the effective date of this provision. Until it issued final regulations defining the key terms (including who qualifies as a veteran and what constitutes a serious injury for a veteran), the Department took the position that employers were not legally required to provide this type of FMLA leave.

That has now changed. As of the effective date of the final regulations (March 8, 2013), employers are now required to provide FMLA leave to employees who need time off to care for a family member who is a veteran and suffered a serious injury while on active duty.

The final regulations have changed military family leave in a few important ways:

• Veterans defined. One of the reasons why Congress amended the FMLA was to allow time off for employees to care for family members who had served in the military and later manifested serious health problems, notably PTSD. The final regulations define “serious injury,” and make clear that injuries are covered whether they manifest before or after the veteran leaves the military. The veteran must have been in the military in the five years before the employee first takes FMLA leave. However, the time between the Congressional amendments (October 28, 2009) and the effective date of the final regulations (March 8, 2013) doesn’t count against this five-year limit. The Department excluded this time because employers weren’t required to give leave to care for an injured veteran during this period. 
• Qualifying exigencies expanded. As required by Congress, the final rule expands qualifying exigency leave to cover not only family members who are members of the National Guard and Reserves, but also family members who are in the regular armed forces and are deployed to a foreign country. This type of leave is intended to allow employers to handle practical matters arising from a family member’s deployment. The final regulations make a few changes to this type of leave. For example, employees may take up to 15 days off for a family member’s rest and recuperation leave (the previous limit was five days). The final regulations also add a new type of qualifying exigency leave, to allow employees to take time off to make arrangements for a military family member’s parent who is incapable of self-care. For example, the employee might need to hire a caretaker for the parent, tour care facilities, and so on.

The Department of Labor has issued a helpful FAQ set on the final regulations.

If you’ve gotten a paycheck since the beginning of 2013, you’ve no doubt noticed one effect of the fiscal cliff deal Congress reached last week: It did not extend the payroll tax holiday. Employees had been getting a break on their Social Security taxes, but now it’s over. The tax on Social Security went back up by 2% to its former level, resulting in lower paychecks for everyone.

I’ve fielded a few questions this week from people wondering if there’s anything else in the 11th hour deal that should interest them, given that they don’t earn enough to be affected by the expiration of the Bush tax cuts on very high earners. The answer, as always, is that it depends. There were certainly extensions and changes that trickle down to the 99%, starting with the extension of the Bush tax cuts for the rest of us. Here are a few of the job-related items:

• If you are out of work, you no doubt know about this one: The federal government extended its emergency unemployment benefits program. For unemployed people who have exhausted the benefits available from their state, this program provides additional weeks of benefits. The program was set to expire at the end of 2012. 
• Employees can continue to exclude from their income — and therefore,  not pay tax on — certain benefits paid by their employers, including educational assistance and adoption assistance. The bill also allows employers to continue claiming tax deductions or credits for certain benefits, such as child care.
• The CLASS Act is gone. This program was part of the larger healthcare reform legislation. It created a long-term care insurance program to be paid by payroll withholding from employee paychecks, if employers opted to participate in the program. Critics claimed it was inadequate at both ends, from the funding to be paid in to the benefits to be paid out. I don’t know enough about it to weigh in, but no matter: The program got killed.

Finally, a very restricted group of employees — the ones who created this mess in the first place — got a pay freeze. So if you are a Senator or Congressperson, you will just have to continue living on your $174,000 annual salary. If you are the majority or minority leader of either house, you get $193,400. And if you are John Boehner, you will have to budget yourself to only $223,500 a year. Performance-based salaries? You be the judge.

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.

About a month ago, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on the use of arrest and conviction records in employment decisions. The EEOC has long warned employers that blanket policies of excluding anyone with an arrest or conviction could lead to discrimination claims, given the much higher arrest and conviction rates of African American and Latino men. This guidance clarifies the rules for employers, giving examples of the kinds of policies and decisions that might violate Title VII and providing a framework for employers who take criminal records into account in hiring, retention, or promotions.

The guidance points out that consideration of criminal records could lead to disparate treatment or disparate impact claims. In a disparate treatment case, the employee would have to show that the employer treated people in different protected classes (for example, those of different races) differently in considering criminal records. If an employer ran a criminal background check only on non-White applicants, excused minor offenses by White applicants while excluding Latino applicants for the same types of records, or assumed that an African American with a youthful drug offense posed a safety risk while a White applicant with a similar offense did not, that employer is treating applicants differently based on their race or national origin.

The trickier situation involves disparate impact claims, in which the employer’s apparently neutral policy has a disproportionately negative effect on people in a particular protected class. Because arrest and conviction rates vary so much by race and national origin, a blanket policy of excluding all applicants with a criminal record could easily result in a disparate impact against African American and Latino men. This is the reasoning behind the ongoing “ban the box” campaign, to get rid of the check box on employment applications asking whether applicants have ever been arrested or convicted of a crime. A company that routinely disqualifies any applicant with a criminal record from further consideration for any job could well be courting a discrimination claim.

Of course, this doesn’t mean employers don’t have good reason to screen out applicants with a record of particular offenses for particular jobs. No one wants a convicted sex offender working in a classroom or someone who just finished serving a felony sentence for identity theft handling confidential customer information. The EEOC provides a three factor test, which employers can use to ensure that any criminal record exclusion accurately distinguishes between those who pose an unacceptable risk and those who do not. The employer must assess:

• the nature and gravity of the criminal offense or conduct
• how much time hass passed since the offense or sentence, and
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

Even if this test indicates that the applicant may pose a risk, the employer should allow the applicant an opportunity to provide mitigating information demonstrating that he or she shouldn’t be excluded based on the offense. For example, the applicant might show that the criminal record is simply inaccurate. Or, the applicant might provide facts about what really happened, previous work history, rehabilitation efforts, and so on, in an effort to demonstrate that the record shouldn’t disqualify the applicant from the position.

Becoming the first state in what looks like a trend, Maryland has enacted a law, Senate Bill 433, that prohibits employers from requesting or requiring that employees or applicants hand over their passwords to social media accounts and other personal online accounts. The California legislature is currently considering a similar law, as are a handful of others. And the federal government isn’t far behind: Senators Schumer and Blumenthal have asked the Department of Justice and the Equal Employment Opportunity Commission to investigate whether asking employees or applicants for their passwords violates current federal law.

It’s fitting that Maryland was first in line: It was the case of Robert Collins, who was asked to provide his Facebook password during a recertification interview for his job at the Maryland Department of Corrections, that first publicized this issue. (Here’s my previous post about his case.)

No matter how people feel about whether employers should consider public posts in making job decisions, most everyone agrees that information an employee takes steps to shield should remain private. As Senator Schumer put it, requiring applicants to hand over their Facebook passwords is akin to asking applicants “for their house keys or to read their diaries.”

Not to be left behind, Facebook has also weighed in on the issue by making it a violation of the site’s code of conduct to “share or solicit a Facebook password.” In a statement by Erin Egan, the site’s Chief Privacy Officer, Facebook says that it has “worked really hard to give you the tools to control who sees your information”; she also warns employers that they could expose themselves to “unanticipated legal liability” by demanding user passwords.

As more states consider and pass these bills, employees and applicants would be wise to take advantage of the protection by scrubbing their public online identity and shielding their private information behind a password. Apparently, however, that’s easier said than done. A recent study (reported on ZDNet) revealed that users find Facebook’s privacy policies incomprehensible — in fact, harder to understand than government notices, credit card agreements, and even bank rewards program documents. (The good news for Facebook: Users found Google’s privacy policies even more difficult to understand.) Perhaps that explains why 13 million Facebook users, according to a recent Consumer Reports projection, either aren’t aware of Facebook’s privacy settings or haven’t tried to use them.

Last week, the California Supreme Court issued a long-awaited decision in Brinker Restaurant Corp. v. Superior Court, a huge class action lawsuit alleging that employees were denied meal and rest breaks and required to work off the clock. Brinker owns a number of restaurant chains, including Chili’s and Romano’s Macaroni Grill. The lawsuit, initially filed by five employees, turned into a class action on behalf of almost 60,000 Brinker employees statewide. That group was divided into three subclasses: employees who were required to work more than five hours without a meal break; employees who were required to work more than three-and-a-half hours without a rest break; and employees who were forced to work off the clock (that is, to do work for which they were not paid).

California law requires employers to provide a ten-minute paid rest break for every four hours “or major fraction thereof” an employee works. However, no rest break need be provided to employees who work less than three-and-a-half hours total. As for meals, California law prohibits employers from requiring employees to work more than five hours without giving them a 30-minute meal break; this time is unpaid. In the Brinker case, the parties argued about when (that is, in what part of an employee’s shift) these breaks must be provided and what obligation the employer had to make sure the employee didn’t work through breaks. They also disputed whether these issues could properly be decided for the whole class or whether they should instead be decided on a case by case basis.

The Court issued a broad opinion, deciding not only the issues directly before it but a few more that are sure to come up as the lawsuit proceeds. Here’s the upshot:

Rest breaks: The Court had a math fight with the Court of Appeals on the “major fraction” language. (The Court of Appeals found that an employer could provide only one break in a seven-and-a-half hour shift.) The Supreme Court concluded that employees who work at least three-and-a-half hours but no more than six hours are entitled to one rest break; employees who work at least six hours but no more than ten are entitled to a second rest break; and so on. The Court also rejected the employees’ argument that one rest break must be provided before the meal period and one after in an eight-hour shift. Although the Court agreed that this made sense “as a general matter,” it declined to state a rigid rule regarding the timing of meals and breaks.

Meal breaks: There were a couple of big questions here. First, what is the employer’s duty during meal breaks? The Court found that the employer must provide a 30-minute meal break, during which the employee is entirely relieved of duties and is free to leave the work site. The employees wanted to impose an additional requirement that employers ensure employees do no work during their lunch, but the Court refused. If the employer pressures employees to work through their breaks, however, it violates this provision, and is liable not only to pay the employee for the break time, but also to pay a penalty. Second, the employees wanted the Court to require a meal break every five hours, so that if the first one was taken toward the start of a shift, the employee would be entitled to a second break five hours later. The Court disagreed: Employees are entitled to a meal break before they finish five hours of work; if an employee works ten hours, the employee is entitled to a second break. There is no requirement that the meal breaks be no more than five hours apart.

Class claims: The Court decided that the rest break claims could proceed as a class action, because they were based on the employer’s policies and procedures. The Court sent back the meal break claim so the trial court could decide whether a class should be certified under the Court’s interpretation of the five-hour rule. The Court rejected the idea of class certification on the employees’ claim that they were required to work off the clock, finding that it was based not on a company-wide policy, but on the actions of individual employees and managers.

This case has been touted as a win for employers, and it is — but mostly in the sense that adopting the employees’ arguments would have greatly expanded their rights as previously understood under California law. The Court didn’t take away any established employee rights with this opinion. While it’s not fun to have to take your “lunch” shortly after starting an eight-hour shift, then work on without a substantial break for many hours (and trust me, I’ve been there), it’s also a fairly common practice, especially in service industries where employees can’t all take their breaks at the same time. In this case, the trial court found entirely for the employees, then the Court of Appeal reversed and went entirely for the employer. The Supreme Court’s opinion seems to just rebalance the scales to where most people thought they were in the first place.