In this down economy, HR faces some serious risks as employees are worried about money and the possible loss of their jobs. Nonetheless, HR managers can be proactive to protect their companies from harm, asserted Allison West, attorney and principal of Employment Practices Specialists, LLC in Pacifica, California.
With a good dose of humor, West discussed the top 12 areas of risk in her keynote address at BLR's 2009 National Employment Law Update this week in Las Vegas.
1. The Pilfering Privilege. The risk of employees accessing company documents and trade secrets is high, because employees have access to much of the company's data through computer usage. West referred to the Computer Fraud and Abuse Act, a federal law that protects employers in such circumstances. Relying on recent case law, she recommended that employers insert the following statement in their computer-use policies: “When an employee's interest is adverse to the company's the employee is not authorized to use company computers.”
West also suggested that employers have a system of secondary oversight in place to ensure that their IT departments, which hold the “keys to the kingdom,” are not misusing their computer access. She noted cases where IT employees were accessing pornography at work, even though they were in charge of making sure other employees did not engage in the same conduct.
2. Txtul hrsmnt--no lol (Translated: Textual Harassment--not laughing out loud). West discussed several recent cases where an employee's inappropriate texting led to harassment claims. She conceded that it is unrealistic to have zero tolerance for personal use of a computer or texting device, but she stressed the importance of having a texting policy in place. The policy should prohibit any inappropriate texting and any texting that violates any of the company's policies. West cautioned that texting and instant messaging can be recovered and used as evidence at trial.
3. $how Me the MONEY! In West's view, there is no bigger risk than wage and hour claims because of the possibility of a class action. For example, if an employee claims that she has not been given a required lunch break, everyone in her department who also did not get a lunch break can join the action. In these actions, employers can be liable for huge amounts in backpay and fines.
In particular, West cautioned against “voluntary overtime.” When the economy is down, employees who are worried about avoiding being laid off may volunteer to put in extra time to show their dedication and value to the company. However, all overtime must be paid and managers should be aware that voluntary overtime is not okay.
4. We Shall Overcome. West believes that in a down economy, companies are vulnerable to unionization. Many employees are working longer hours for less pay, and a union may convince them that it can make their working conditions better. She also noted that the Employee Free Choice Act (EFCA), a law that would make it easier for employees to unionize, may pass soon. In this environment, West warned against assuming that your workforce would not vote for union representation.
She recommended that employers think of ways to show employees that they care about them and that they listen to their concerns. She also recommended that employers consult with local labor counsel to learn ways to be proactive in preventing unionization.
5. Will You Still Love Me When I'm 64? West noted here that claims under the Age Discrimination in Employment Act (ADEA) are on the rise. She recommended making sure that any severance agreements comply with the Older Workers Benefits Protection Act (OWBPA). She also strongly advised against using a “one size fits all” severance agreement, noting that each severance agreement must be drafted with the individual employee in mind.
In age discrimination claims, anecdotal evidence of age-related jokes and comments are often used as evidence against the employer. West urged HR not to engage in such comments and to train managers that they are not acceptable.
6. Welcome to California--ADAA. West explained that the amendments to the Americans with Disabilities Act (ADAA) have made that federal law very similar to California 's broad state disability law. Under the ADAA, it is much easier for an employee to show that he or she meets the statutory definition of “disabled.”
In this regard, West sees the biggest risk in job descriptions. Job descriptions should accurately reflect the essential functions of the job. West observed that sometimes managers supplant their own “wish list” of job functions onto job descriptions, but it is important not to let that happen. Managers should be made aware of the ADAA and its requirements.
West also encouraged employers not to fear the interactive process in finding an appropriate accommodation for a disabled employee. Discussing an employee's needs can usually result in an accommodation acceptable to both the employee and the employer.
7. It's All In Who You Know. West observed a new trend in discrimination claims: associational discrimination. In these cases, a discrimination claim is brought by an employee who is not in a protected class, but who has associated with members of such a group. For example, in one case a Caucasian coach brought suit, claiming he was fired because his wife was African American. West stated that these claims can be brought under a number of statutes, such as Title VII, ADAA, ADEA, and state laws.
8. We Are Family. West is predicting a rise in caregiver discrimination claims. Although this is not recognized as a separate cause of action, such claims could be brought under gender or race discrimination laws. These claims arise when an employee believes that he or she has been subject to adverse action because of caregiver responsibilities, e.g., employees who care for children or elderly parents.
West reminded attendees of the importance of focusing on job performance when considering taking adverse action against an employee. She also recommended including caregiver discrimination and associational discrimination into harassment training.
9. The High Cost of Getting Even. West noted that retaliation claims have doubled over the last several years. West sees a high risk of retaliation claims by employees who complain on behalf of others. She stated that these are easy claims to make and employees are becoming more educated about them. She urged HR to take all complaints seriously.
10. Leader of the Pack. In a down economy, it is important to remember succession planning. Employers should realize that when the economy turns around, some employees will leave for new jobs. She suggested conducting cross-training. She also recommended rewarding star performers, even in tough times.
11. Can You Hear Me Now? West noted the importance of listening to complaints. She explained that even rumors can put HR on notice that inappropriate or illegal conduct is taking place. So, office rumors should be checked out to make sure that any inappropriate conduct is addressed.
12. Will You Be My BFF? Social networking by employees is popular, but it can be risky. For example, sometimes employees make negative statements about the company on such sites. Or, managers are accused of harassment because of their social networking posts. West stated that it is important for employers to have social networking policies in place. She also believes that employers can restrict managers from engaging in social networking with employees they supervise.