The speed, convenience, and seeming privacy of sending electronic mail (“e-mail”) have made it a part of everyday interaction in the workplace. Yet, e-mail also has created potential legal problems that can be minimized only with the right strategies and policies. An effective e-mail policy can help your Company steer clear of legal entanglements that can arise from racially or sexually offensive e-mails, collisions with employees’ expectations of privacy and federal law, and policies that attempt to restrict communications that might be protected by the National Labor Relations Board.
Most recently, a bill in both the United States House of Representatives and Senate, the Notice of Electronic Monitoring Act (H.R. 4908, S. 2898) (“NEMA”) proposes to require employers to notify employees of electronic monitoring on the job. The Act would allow an employee to sue an employer for civil damages if the employer conducts electronic monitoring without the required notice. Compensatory damages would be capped at $5,000.00, and total damages per person would be capped at $20,000.00. In cases where numerous employees are affected, per incident damages assessed against the employer would be capped at $500,000.00. All employers who have an e-mail policy in place or are contemplating one should be prepared for Congress to pass the NEMA.
When reviewing and revising (or implementing) an e-mail policy, five factors must be considered:
- Employers should tell employees that they have no expectation of privacy with regard to any information on a computer system that is owned or controlled by the employer. This policy serves as a defense to claims that employees’ privacy interests have been violated under common law and privacy statutes passed in California and Connecticut.
Employers must tell employees that they can never use any computer system to create a hostile or discriminatory work environment. Several courts have recognized that e-mail is “part of the workplace” and can be a source for hostile workplace claims. This policy serves as part of the employer’s defense of taking measures to prevent a hostile workplace.
Employers must tell employees that while e-mail can be an informed mode of communication, it should be treated the same as any other final work product that could be read in the future by unsympathetic third parties. This policy serves to ensure that there are no “smoking gun e-mails” that could later be used in litigation against the employer.
Employers must give employees directions about the use of the employer’s copyrighted or trade secret information. This policy serves to protect employer’s customer lists and trade secrets, if any, from use by an employee who seeks to work for a competitor.
Employers must give employees the employer’s stance on the personal use of e-mails and ensure that their e-mail policies do not discriminate against unions or employees engaged in protected union activities. If an employer allows its e-mail system to be used for personal use, it must allow a union to distribute literature via e-mail. This policy protects an employer from charges of unfair labor practices.
If, and when, Congress passes NEMA, your Company should be ready to provide to its employees a revised e-mail policy. This policy would provide notification of what type of computer use would be monitored, how the monitoring would be accomplished, the frequency of the monitoring, the kinds of information that would be obtained, and how the information would be stored and used.
As we go through the 21st Century, more e-mail issues will arise. Stay-at-home parents looking to make extra money, sales staff working from home, and other employees working off-site will present a challenge to employers. This challenge can be met with a well drafted e-mail policy and appropriate employee training.
By federal statute, employees are entitled to various leaves of absence in certain, fact specific circumstances. The primary sources of the leaves are: the Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) amended by the Pregnancy Discrimination Act (“PDA”). In many instances, the specific requirements of one or more of these leave provisions may overlap or appear to conflict with another. Following is general guidance regarding the application of each of these leave provisions, both separately and in the event of overlap.
Family and Medical Leave Act
The FMLA allows an “eligible” employee to take up to 12 workweeks of leave during any 12-month period of time. In order to be eligible, an employee must have worked for a covered employer for at least 12 months, not necessarily consecutively; have worked at least 1,250 hours of service during the 12 months prior to the leave starting; and the employer’s worksite at which the employee works must employ 50 or more employees within 75 miles.
The nature of the need for the leave also defines an employee’s eligibility. An employee may take FMLA leave in the following circumstances: (1) the birth of a child and to care for a newborn child; (2) the adoption or foster care placement of a child, and to care for that child; (3) to care for the employee’s spouse, son, daughter or parent with a serious health condition; and/or (4) the employee’s own serious health condition which makes the employee unable to perform one or more of the essential functions of his or her job. Finally, during FMLA leave, the employer is required to maintain the employee’s existing level of group health plan coverage, and must take the employee back into the same or equivalent job at the conclusion of the FMLA leave.
The Americans with Disabilities Act
The general purpose of the ADA is to prohibit employers from discriminating against individuals with disabilities in hiring or with respect to terms and conditions of employment. Additionally, the ADA obligates employers to provide a “reasonable accommodation” to an employee who is a “qualified individual with a disability.” Under the ADA, a “disability” is an impairment that substantially limits an individual from performing one or more “major life activities. ” A “qualified individual with a disability,” is an individual with a disability who can perform the essential functions of the job with or without reasonable accommodation. Finally, a “reasonable accommodation” under the ADA is a fact specific determination, but includes making the workplace accessible to and functional for individuals with disabilities, job/schedule restructuring, reassignment to vacant, open positions, acquiring or modifying workplace equipment, and training materials or policies.
The Pregnancy Discrimination Act
Title VII prohibits employers from discriminating against employees and applicants on the basis of race, color, religion, gender or national origin in the hiring or terms and conditions of employment, including when the employer provides family or medical leave. In the realm of leave of absence grants, Title VII does not embody any specific leave provision, but only provides that employers do not discriminate against employees in the way it administers its leave policies. By way of example, if an employer grants unpaid leave of absences up to 8 weeks for non-pregnancy conditions, Title VII would require that the employer offers the same amount of leave to an individual with a pregnancy related condition.
The Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII that makes it unlawful to discriminate against individuals on the basis of pregnancy, childbirth or related medical condition. Generally, the PDA requires that the employer treat a pregnant employee who is temporarily unable to perform her job due to the pregnancy the same as any other temporarily disabled employee. Additionally, the employer must allow a pregnant employee to work into their pregnancy as long as she can perform her job, may not have a rule imposing a time restriction on her return to work following childbirth, but may require doctor’s statements regarding her inability/ability to work as long as it requires the same from non-pregnant individuals with temporary disabilities.
Conflicting or Overlapping Leave Provisions
General Coverage and Protection
A private employer will only be covered concurrently by the ADA, Title VII and the FMLA when it employs more than 50 employees. Employees who are protected by the ADA and Title VII are not necessarily eligible for FMLA, as the FMLA eligibility is dependent upon several factors as described above.
FMLA’s “serious health condition” versus ADA’s “disability”
The FMLA statute provides that a “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves . . .[i]npatient care . . . or [c]ontinuing treatment by a health care provider.” 29 C.F.R. §§ 825.114 (a) (1), (2). The FMLA also provides that an employee may take care of his or herself, spouse, son, daughter or parent when any have a “serious health condition.”
Alternatively, the ADA’s “disability” is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Unlike the FMLA, the ADA’s reasonable accommodation obligation does not require a covered employer to provide an employee time off to care for a spouse, son, daughter or parent, unless the employer typically provides such leave for other employees.
Leave beyond the FMLA’s maximum 12 weeks, intermittent and occasional leave
Under the ADA, an otherwise qualified individual with a disability may be entitled to a reasonable accommodation of additional leave beyond the FMLA’s 12 weeks, if such additional leave does not constitute an undue hardship on the employer.
In constructing a reasonable accommodation, an eligible employee under the ADA may request and be granted part-time work and occasional time off. An employee eligible under the FMLA may also take leave intermittently or on a part time basis as necessary for treatment for or recovery from his or her own serious health condition, up to a total of 12 workweeks in any 12 month period of time.
Reinstatement rights under FMLA and ADA
Unless it would cause an employer undue hardship, the employer is required under the ADA to return an employee to his or her same position upon his or her return. If the employer can establish an undue hardship in keeping a job open, the employer must ascertain whether it has an open, vacant position to which it can transfer the employee. If no equivalent, open, vacant position is available, the employer must look for a vacant position in a lower job classification.
An employee is also entitled to return to his or her position or an equivalent position following an FMLA leave. However, if the employee cannot perform the essential functions of the job upon return due to a physical or mental position, the employer is not required by the FMLA to reinstate the employee to another position.
Health insurance coverage
If an employer grants part-time or occasional time off as a reasonable accommodation under the ADA, the employer must continue health insurance coverage for the employee if the employer provides such coverage for other employees in the same temporary leave status.
Conversely, under the FMLA, an employer must maintain the existing level of coverage for the employee on leave, as long as the employee pays his or her share if employee contribution is required of employees.
Situations where both ADA and FMLA could apply, terms and conditions applicable
Finally, in situations where both the ADA and the FMLA could apply, the FMLA requires that the employer must grant the terms of whichever leave provision gives the employee greater rights.
Workplace violence tripled in the 1990’s. Workplace homicide has been described as the fastest growing category of homicide in the country. In the United States alone, an average of twenty people are murdered each week while at work. Homicide is now the second leading cause of workplace death for men and the leading cause of workplace death for women.
Homicide, however, is not the only form of workplace violence. Other types of workplace violence such as assault, verbal threats, profanity, harassment and stalkings are even more common than workplace homicide, and can be almost as disruptive. Annually, for instance, approximately one million people are assaulted while at work or on duty – about one third by fellow employees.
As a result of workplace violence, companies have suffered tremendous losses from decreased employee productivity, rising insurance costs, increased security expenses, escalating litigation expenses and “runaway” jury verdicts. Ultimately, employers bear this burden, watching both business and legal costs rise when they have to pay for employees’ acts of violence. The Workplace Violence Research Institute estimated that workplace violence and its aftermath cost American businesses approximately $36 billion in 1995. Your Company can make an effort to contain and prevent these costs by taking a proactive approach to workplace violence.
Conduct Thorough Background And Reference Checks
- – The best way to avoid problems with violent employees is not to hire them. Accordingly, management should conduct “live” job interviews whenever possible. Management can sometimes learn about a person’s propensity for violence just by meeting them. In certain circumstances, psychological profile tests may be used to help predict an applicant’s potential for violence. Your Company should also seek information from the applicant’s former employers and conduct a criminal background check. (
- Because many states prohibit the denial of employment based on a criminal conviction unless the crime is closely related to the job duties of the position and if the conviction is not too remote in time, management should consult with an ORM&H attorney when background checks raise questions regarding an applicant’s employability.)
• Create A “Zero-Tolerance” Policy Against Violence And Weapons- Your Company should maintain strict written policies against all forms of violent acts and the possession of weapons at the workplace. These policies should be distributed to and acknowledged by every employee, and should state that any employee who violates the policies will be terminated. They can be incorporated into handbooks in union-free settings and bargained for in union settings.
• Provide Adequate Security Measures– Your Company must maintain adequate security both for its employees and for those people visiting its premises. Depending on the size and layout of a particular location, these measures may include security guards, security cameras and/or card-key access systems.
• Awareness of the Warning Signs – It is often difficult to predict when an employee will act out violently. There are, however, several commonly accepted warning signs that could indicate that an employee may become violent. These include: excessive use of profanity, anger, depression, marital problems, loss of “status” at work, suicidal tendencies, a workplace romance “gone bad,” and threats made against co-workers, supervisors or the company (all threats should be taken seriously). If an employee has one or more of the above characteristics, management should consult with an ORM&H attorney to determine the appropriate level of intervention, assistance or discipline required.
No panacea exists to avoid entirely episodes of workplace violence. Combining education with preparedness, however, will hopefully allow your Company to prevent workplace violence problems before they occur, and to effectively handle and remedy those unfortunate situations which do unfold. Whether developing effective preventative measures or handling specific workplace violence situations, managers should always seek the assistance of ORM&H to assist them in their “fight” against workplace violence.
Your Company should seek to minimize potential liability in the expanding area of harassment claims. Though typically hostile work environment claims involve an employee’s race, gender, age, national origin, religion, disability, and/or pregnancy, many disgruntled employees now simply claim harassment generally without relating that alleged hostility to any protected status.
Given the potential legal exposure of any hostile work environment claim and recent incredibly high jury verdicts for plaintiffs, management must immediately investigate all claims of harassment in the workplace. Management should embrace a zero tolerance harassment policy. Coupled with this policy, timely investigations will reduce liability exposure. Internal investigations which resolve complaints up front will reduce, and possibly eliminate, the number of claims filed with an outside human rights agency or in court.
As always, ORM&H continues to emphasize periodic distribution and consistent enforcement of an harassment-free workplace policy as well as management training to educate supervisors about recognizing unacceptable behavior and taking remedial actions. These tips will create the framework for successful harassment prevention.
With a proper policy and well-trained management, your Company can actively and effectively investigate claims of harassment and take appropriate remedial actions when necessary. Internal investigations generally include the following steps:
- 1. Review of relevant policies/files.
2. Implementing any necessary immediate action, such as separating the parties.
3. Creating a “game plan,” including who will conduct the investigation (have two company representatives present at the interviews, if possible), who needs to be interviewed, and a private location at which to conduct interviews (preferably off-site).
4. Conduct interviews: explain confidentiality and retaliation protections; ask open-ended questions (who, what, where, when, how); and obtain a signed statement from each person interviewed where possible.
5. Evaluate the evidence and determine what, if any, remedial action to take.
6. Record findings and recommendations in written form.
7. Advise parties of outcome.
8. Follow-up to ensure remedial action is effective.
The critical trigger for an investigation is the “complaint.” No employee needs to fill out a special form or submit a complaint in writing to trigger management’s obligation to investigate. Verbal complaints or general griping to a manager is a valid complaint. Basically, once your Company manager discovers, by any means, that an employee has a workplace complaint, that complaint must be promptly investigated preferably by someone in human resources or on the executive staff. The complaint should not be investigated by someone with line authority over the complainant.
Once the complaint is received and the investigation initiated, remember that the accused harasser has rights. Of course, in unionized settings, the accused harasser always has the “Weingarten right” to request the presence of their union representative at their investigatory interview because disciplinary action could reasonably result. Now, under a recent National Labor Relations Board decision, all employees, whether unionized or not, have the right to request the presence of a representative at an investigatory interview that might result in discipline. In the non-union workplace, this means the accused harasser can request that a co-worker be present during his or her interview – however, they must not be allowed to bring a lawyer or other third party to the interview. This right is limited only to investigatory interviews that the employee believes might lead to discipline.
When an employee requests representation, management may treat the accused harasser as if he or she is refusing to participate in the investigation – management may refuse to interview the employee with a representative present and carry out the investigation without that interview. This may, however, compromise the quality of the investigation, in the eyes of an arbitrator, judge, or jury. On the other hand, management may allow the representative to be present and conduct the interview. Management may not, however, discipline or otherwise take adverse action against the accused harasser because of the request for a representative.
Understanding these issues, your Company can successfully manage employee complaints of harassment and minimize legal exposure. By taking employee concerns seriously, management will demonstrate its anti-harassment commitment and encourage employees to take advantage of your Company’s internal process to resolve their claims. “An ounce of prevention” goes a long way towards minimizing the risk of lawsuits and legal damages. |