IN THE NEWS – WORKPLACE BULLYING

If your company’s work environment is a reminiscent of a trip back to middle school, it may be time to update your policies and take a stand against “workplace bullying.”

Although conventional wisdom has been that rude and intimidating conduct between co-workers and even by supervisors falls outside the arena of legal liability for employers, recent court decisions have taken a closer look at workplace bullying as a component of more traditional claims like assault. An August 4 article by Cari Tuna in the Wall Street Journal notes that the Indiana Supreme Court recently upheld a $325,000 jury verdict awarded to a medical technician who was bullied by his supervisor, a cardiovascular surgeon. According to the allegations in that case, a pattern of verbal abuse culminated in a confrontation where the accused bully walked toward his victim with clenched fists while yelling at him. The jury found that conduct threatening enough to fall within the definition of assault, a finding the higher court upheld because it viewed that incident in the context of the pattern of bullying.

An earlier article in the New York Times by Tara Parker-Pope (3/25/08) reported that a surprising 37% of all workers surveyed by a national research firm admitted they had been the victim of workplace bullying.

Several state legislatures are reviewing “anti-bullying” legislation. Although none has been passed into law to date, companies may want to take a proactive stand against conduct that researchers have identified as a leading cause of workplace stress, loss of productivity and high turnover, by adding a ban on nondiscriminatory bullying to their HR policies.

IN THE NEWS – IMPACT OF NEW GUN LAW ON WORKPLACE SAFETY POLICIES

Are your employees keeping loaded guns in their cars on company property? Under a new Florida law, you can’t ask. On July 1, the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 went into effect. Under this law, an employer can no longer prohibit its employees from bringing loaded guns onto company property – so long as those guns remain locked in the employee’s vehicle.

Certain exceptions do apply – schools, prisons, nuclear power plants, Defense Department contractors, and business that maintain explosives – but unless your company falls into one of those categories, your employees (with valid concealed weapons permits) must now be permitted to keep firearms in their cars, and you cannot take disciplinary or retaliatory action against them for doing so. The Act also applies to “invitees” to your business premises, thereby including customers, volunteers, student interns, vendors or anyone else with a legitimate reason to park their vehicle in your parking lot.

But before you begin polling your employees to determine whether they are keeping guns in their vehicles, you should know that the new law also provides: “No public or private employer may violate the privacy rights of a customer, employee, or invitee by verbal or written inquiry regarding the presence of a firearm inside or locked to a private motor vehicle in a parking lot…”

Many employers and commentators have raised concerns about the possibility that this new law may lead to an increase in workplace violence, by making weapons more accessible to disgruntled and unstable employees or customers. Although the new law is reportedly facing several challenges in the courts, for now it is the law.

Any employee handbook that prohibits employees from bringing firearms onto company premises should be revised to make an exception for firearms that are lawfully stored in an employee’s locked vehicle.

EMPLOYER ALERT – LISTEN TO THE MUSIC

A Silicon Valley engineering firm is paying $168,000 in damages and amending its anti-harassment policy to include the playing of music with offensive lyrics, as part of the settlement of a racial harassment case filed by the EEOC.

According to the EEOC’s statement released June 24, the lawsuit was filed based on the failure of the company’s supervisors to respond appropriately to complaints by a black employee that a co-worker, a 27-year-old Vietnamese American, played and sang along with rap music that had racial slurs in the lyrics, including the “N-word,” within his earshot in the workplace.

Do you, as an employer, now need to monitor the musical taste of your workers and pre-approve what’s playing on their radio or iPod, even in the break room? Or prohibit employees from listening to music at work altogether? No. But you do need to train your supervisors to take complaints of this nature seriously, and make a distinction between music that simply reflects different tastes, and music that could reasonably be perceived as offensive based on race, ethnicity, sex or any of the protected classes under federal, state and local discrimination laws.

EEOC District Director Michael Baldonado had this to say about the case. “This is the kind of situation that many workplaces [in the country] face: How do you manage the culture clash – across generations, race and ethnicity, you name it – in a workplace that gets more diverse every day? I think it’s critical to try to put yourself into the shoes of the other person and take all complaints of discrimination seriously. Together we can try to defuse tensions and prevent situations from developing into discrimination and harassment.”

TIP OF THE DAY – SAFETY IN ADVERTISING

Targeting your message may make sense in advertising, but it can signal trouble if the ad you’re placing is for an employment opportunity. Be careful not to use language that could be interpreted as an age or gender preference.

Describing the ideal candidate as a “recent graduate” or the position as “entry level” could signal a preference for a young candidate, and result in EEOC filings by older job applicants who believe they were rejected for discriminatory reasons.

IN THE NEWS – SUPREME COURT RULING PUTS THE BURDEN ON EMPLOYERS TO PROVE POLICIES IMPACTING OLDER WORKERS ARE “REASONABLE”

In a decision hailed by employee advocates as a triumph, the U.S. Supreme Court ruled yesterday that in age discrimination cases the employer bears the burden of proof that employment decisions having a “disparate impact” on older workers are based on a reasonable factor other than age.

Three years ago, in March 2005, the Supreme Court ruled in the landmark case of Smith v. City of Jackson that the Age Discrimination in Employment Act (“the ADEA”) protects workers when an employer implements a policy which, on its face, has nothing to do with age, but in practice disproportionately impacts employees over age 40 in a negative way. (Notably, this marked a significant change for Florida employers because until that ruling, federal courts in Florida had held that the “disparate impact” theory was not applicable to age discrimination cases. To win a case, an ADEA plaintiff had to prove the employer’s alleged discriminatory policy was intended to harm older workers.) In Smith the Supreme Court held that such claims were in fact actionable under the ADEA, but did give the employer a “safe harbor” for their policies. Once an employee was able to show that the policy did in fact have a disparate impact, the employer could avoid liability by bringing forward evidence that the policy was based on “reasonable factors other than age,” a standard referred to by the Court as “RFOA.”

By requiring only an RFOA in the Smith case, the Court gave employers an advantage they did not have in disparate impact cases that traditionally arose in the contest of sex discrimination claims under Title VII of the Civil Rights Act. It has long been held that to avoid liability for a policy that has a disparate impact against a protected class under Title VII, the employer must show that the job requirement is a “bona fide occupational qualification,” referred to as a “BFOQ.” The classic examples in those early cases were height and weight restrictions which disproportionately excluded women from jobs as firefighters, but were held to be BFOQ’s because a certain minimum height and weight was deemed necessary to the ability to carry an overweight, unconscious victim out of a burning building. By interpreting the ADEA as requiring a lesser standard – the reasonableness standard of the RFOA instead of the absolute job necessity standard of the BFOQ – the Court made it much easier for an employer who was not intentionally discriminating to defend policies that had a disparate impact on older workers, so long as those policies were otherwise reasonable.

The question that remained after the Smith decision, however, was what happened procedurally after the employer brought forward evidence of the RFOA? To prove discrimination, did the employee have to prove that the employer’s asserted justification for the policy was in fact unreasonable? Or did the employer have the burden of proving that it was reasonable? While this distinction may appear at first blush to be a minor question of semantics, the question of who has the burden of proof can drastically change the outcome of a trial.

Until yesterday, federal courts were split on this issue. The Supreme Court has now resolved the question in Meacham v. Knolls Atomic Power Laboratory, holding that the employer must not only bring forward evidence that its policy was based on an RFOA, but also prove that the factor relied on is a reasonable one.

What this case means as a practical matter for employers is that care should be taken to examine any policies that appear to disproportionately impact older workers, and be prepared not merely to articulate a reasonable, nondiscriminatory basis for that policy but also to prove that the policy is reasonable.

IN THE NEWS – SLEEPING ON THE JOB?

In most workplaces, sleeping on the job can get you fired. But according to recent news reports and commentaries, a growing number of employers are not only permitting employees to take naps but actually encouraging the practice. Some are even providing a designated area, complete with couches, blankets, nature cds and privacy screens. Those employers argue that tired employees are less productive, and allowing workers to take a 15-20 minute “power nap” actually increases their productivity and cuts down on absenteeism resulting from fatigue and related heath issues, as well as reducing on-the-job accidents.

Boston University clinical psychologist William A. Anthony, PhD, has written a book on the topic, The Art of Napping at Work. In his book, Anthony suggests that Americans are sleep-deprived, not due to irresponsible habits but rather as a result of the expanding demands of their jobs, lengthy commutes, and household responsibilities. According to a recent ABC news report, the typical American needs 8 hours of sleep per night, but only gets about 6.7. In a poll conducted in late 2007 by the National Sleep Foundation, a surprising one-third of those surveyed admitted having fallen asleep at work at least once in the last month. In a earlier survey by the same group, more than 51% of workers surveyed admitted that sleepiness on the job was interfering with their productivity. According to a study by Cornell University, 40% of workers are sneaking naps at their desks or in their cars during lunch.

Is allowing employees to take an afternoon nap the answer? For some companies, perhaps. But before embarking on such a policy, you should consider the costs and logistics of administering a “nap” program, how to prevent the policy from being abused, and whether naps would be “on company time” or “off the clock.”

EMPLOYER ALERT – USE OF SOCIAL NETWORKING SITES CAN BACKFIRE

Many employers are looking at social networking sites like MySpace and Facebook for additional information in screening job applicants. The conventional wisdom has been that searching for and reviewing these sites can provide useful information about an applicant’s judgment and character. Have they been blogging about frequently calling off work at their last job after a long night of partying? Do their photos and comments indicate a lifestyle of excessive alcohol consumption or use of illegal drugs? Have they “trashed” their previous employer online? Are they posting the sort of photographs that you would find embarrassing if one of your customers “Googled” their name as a representative of your company?

All of the foregoing is information that certainly could be relevant to your hiring decision. But when does information obtained online become “too much information,” placing your company at risk?

This issue is discussed at length by Lester Rosen, head of a California-based national background screening company, in a two-part series published in Recruiting Trends®, an online newsletter for HR professionals. Mr. Rosen cautions that privacy issues may be involved if you or your background screener access these sites by setting up a cover identity, and that in some circumstances Fair Credit Reporting Act notifications may be required by law for including review of these sites in a background investigation.

The most troubling issue noted in the article, however, is that reviewing an applicant’s social networking site may give you information about their disability, age, race, national origin, religion, sexual preference or other characteristics which of course can not be considered in making employment decisions. If you decide not to hire the individual, they may assume that you have discriminated against them based on that information. Mr. Rosen’s article appears at http://www.recruitingtrends.com/online/thoughtleadership/969-1.html