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Employment Summer 2016 ISSUE

What rights do employees have to talk about politics at work?

This year’s presidential election has produced one of the most colorful and contentious political seasons in recent memory. It’s not surprising that employees want to talk about the candidates and the issues. For this reason, it’s important to know what everyone’s rights are – both those of employees who want to express their opinions, and those of employers who want to minimize disruptions and avoid having their staff members offend co-workers or customers.

While many people talk about “free speech,” it’s important to know that the First Amendment to the U.S. Constitution doesn’t protect every type of speech. All it really says is that the government can’t punish you for your speech. It doesn’t say that a private employer can’t punish people for their political opinions.

Further, while there are federal laws that prohibit discrimination on the basis of race, sex, age, religion, etc., these laws do not prohibit discrimination on the basis of politics, or say that people can’t be fired simply because their boss disagrees with their politics.

So, as far as federal law is concerned, employees have very little protection in general when they decide to express their views at work.

(It’s different if an employee actually works for the government, because then the First Amendment comes into play. In those cases, employees might have a right to “free speech” if they’re talking about a matter of public concern, but not if they’re simply expressing a private or personal grievance.)

You should know, however, that many states – and even some cities and towns – have laws that give workers more rights than they have under federal law.

In California, for example, state law prohibits businesses from trying to control workers’ political activities or affiliations. That means a boss can’t take negative action against a worker simply because of a political disagreement. A boss also can’t punish a worker for engaging in political activities, such as volunteering for a campaign, outside of work hours.

In Michigan, employers are prohibited from making direct or indirect threats against workers in order to influence their vote. And in the state of Washington, employers can’t retaliate against workers for refusing to support a particular candidate, party or ballot proposal.

Of course, employers still have the right to maintain a productive workplace. Even in California, a boss doesn’t have to tolerate an employee whose political activities are affecting his or her ability to do the job, or whose attempts to engage others in constant political discussions interfere with co-workers’ ability to do their jobs.

In most cases, it’s legal for employers to ban all political discussions or the posting of political materials in the workplace. But an employer who does so needs to enforce the ban consistently. If a boss punishes workers for posting material about one candidate but not another, this could violate a law like California’s.

Here’s another concern: Laws against discrimination allow employees to sue if they were subjected to a “hostile environment” at work because of race, sex, religion, national origin, and so on. Heated political discussions could lead to some employees feeling offended or harassed on these grounds – particularly this year, when the election features such hot-button issues as immigration, Islamic terrorism, abortion, and police brutality.

If a company has a union, the union agreement might also limit what an employer can do in terms of restricting political speech.

Even in companies that don’t have a union, federal labor law says that employees have a right to discuss working conditions with each other and talk about ways to improve their work lives. So if employees are having a discussion about which candidate would be better for them from an employment standpoint, this conversation might be federally protected, even if the business has banned talking about politics in general.

Also, companies are generally free to forbid employees from wearing political t-shirts, buttons, hats and the like, but they can’t forbid them from wearing union symbols. So if a worker wears a button noting that a particular candidate was endorsed by a union, this might have to be allowed.

Company sued for not protecting worker from ex-boyfriend

In a recent case in Missouri, a woman left work and got in her minivan in the parking lot to go home, only to find that her estranged boyfriend was hiding in the back with a gun. They had an argument and he shot her, causing a serious injury. She sued her employer, arguing that better security measures could have prevented the incident.

It turned out that a different employee had been kidnapped from the same parking lot a decade earlier, and in response, the company installed security cameras around the property. However, the company later disregarded advice to reposition the cameras to provide better coverage.

The company also apparently had a policy of providing workers with escorts to their cars if they were worried about their safety, and had allowed another employee who was afraid of her ex-spouse to park in a special visitor’s spot that could be seen from the reception desk.

However, the woman in this case claimed that even though she had told the human resources department about her fears of her ex-boyfriend that very day (she’d seen him earlier in the day at a court hearing regarding her restraining order against him), HR didn’t assign someone to monitor the security cameras, didn’t provide a picture of the ex-boyfriend to the security team, didn’t offer her a special parking spot, and didn’t inform her of the possibility of an escort to her car.

A jury awarded millions of dollars to the woman, finding that the company hadn’t met its legal duty to provide a safe work environment.

Cutting workers’ hours to avoid Obamacare may be illegal

The Affordable Care Act says that any company with more than 50 full-time employees must offer health care benefits or pay a penalty. A full-time employee is defined as someone who works at least 30 hours a week.

Some businesses have tried to get around this requirement by cutting workers’ hours to just below 30 hours a week. The idea is to avoid paying for their employees’ medical care while also avoiding the penalty.

Recently, though, some employees at the Dave & Buster’s restaurant chain who had their hours reduced in this way filed a lawsuit claiming that the practice was illegal. They claimed that cutting their hours violated a federal law called ERISA, which prohibits businesses from discriminating against workers with respect to their right to employee benefits.

The case hasn’t been resolved, but a federal judge in New York allowed it to move forward to trial.

If your company is considering adjusting workers’ hours in light of Obamacare, you might want to speak with an attorney.

Worker could be fired even if boss discriminated

An employee could be legally fired for misconduct even if his supervisor “got the ball rolling” toward his termination as a result of racist attitudes, according to a federal court in Philadelphia.

The case involved a black school janitor and a female black principal who strongly disapproved of the janitor’s dating white women. The principal made inappropriate comments to the janitor, made false accusations against him, and told co-workers that he had “a target on his back.”

One day, police reported to the principal that the janitor had been seen leaving the school after hours with a prostitute, who admitted that they had sex in the building.

The principal then reported the incident to school district authorities, who held two hearings and recommended that the janitor be terminated.

The janitor sued for race discrimination. Although there was no reason to think the school district authorities who fired him were racist, he claimed the whole termination process never would have gotten started if the principal didn’t resent him for dating a white teacher.

But the court sided with the school district. It said that as long as there were legitimate grounds for termination, and the people who actually made the firing decision weren’t motivated by racism, the fact that the janitor’s boss had inappropriate attitudes didn’t matter.

Federal contractors must provide paid sick leave

Starting next January, companies that have federal contracts must allow employees to earn up to seven paid sick days per year, under new regulations issued by the Labor Department.

Employees can earn one sick day for each 30 hours spent on work related to the federal contract, up to seven days per year. These days carry over from one year to the next, although an employee who quits or is fired without using them doesn’t have to be compensated for them.

Sick leave can be taken for an employee’s own illness, or to take care of a sick family member. It can also be used to deal with domestic violence or stalking.

Companies cannot discriminate against a worker who takes sick leave, and cannot make sick leave dependent on the employee’s finding a replacement worker. Also, companies cannot demand a doctor’s note unless the leave lasts three or more consecutive days.

There are extensive recordkeeping requirements for employers, including a requirement that workers be told at least once a month how many sick-leave days they have available.

Interestingly, an employer doesn’t have to agree to a sick-leave request for a given day if the employee isn’t scheduled to do any work that day that pertains to the federal contract. However, a company may not manipulate an employee’s schedule to take advantage of this loophole, and there are significant penalties for doing so.

Another ‘close call’ on who gets overtime

One factor in deciding whether employees are eligible for overtime is whether they exercise judgment and discretion in the course of doing their work. Employees who are empowered to make independent decisions typically don’t qualify for time-and-a-half.

When there’s a dispute about overtime eligibility, this sometimes leads to an ironic situation in which bosses claim in court that their workers are highly skilled decisionmakers, while the workers themselves argue that they’re just mindless drones.

The latest battle of this type occurred in a federal appeals court in Ohio when a group of bank employees who worked as residential loan underwriters claimed they should be paid overtime.

The employees were in charge of deciding whether home mortgage applicants should get a loan. According to the employees, they weren’t making these decisions on their own; rather, they relied on software programs that crunched the applicants’ financial information and compared it to the bank’s lending criteria and relevant government regulations.

But the court sided with the bank, and said the underwriters were in fact using their own judgment in making decisions, even though they consulted published guidelines in the course of doing so. The court said that while the underwriters weren’t allowed to determine how much risk the lender was willing to take on mortgage loans in general, they did pass judgment on how risky a given loan was to the bank in each particular case.

‘Gender identity’ discrimination claims on the rise

Transsexuals and other employees who identify with a different gender than the one they were born with are beginning to bring job discrimination lawsuits.

While the federal civil rights law that prohibits sex discrimination doesn’t specifically mention “gender identity,” the U.S Equal Employment Opportunity Commission believes that gender identity is covered by the law, and has begun bringing claims against businesses. One company in Minnesota has already paid a settlement in a case brought by the EEOC over its refusal to allow a transgendered worker to use a preferred restroom, and a federal appeals court has ruled that a transgendered individual could sue for wrongful termination.

In addition, some cities and states have passed their own laws protecting transgendered workers, including California, Illinois, New York City, and the District of Columbia.

A number of companies are trying to head off potential problems by proactively conducting a review of their policies including dress codes, restroom use, and calling employees by their preferred name.

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