Employment Law

About that Misclassification Thing... Here is your intro to the North Carolina Employee Fair Classification Act!

About that Misclassification Thing... Here is your intro to the North Carolina Employee Fair Classification Act!

North Carolina mingled with the idea of its own misclassification statute for years and finally landed on a law that stuck.  Enter the Employee Fair Classification Act, which went into effect on December 31, 2017.  Here's your Need-to-Knows!

Oh Hiiiiii 2018, Time for an HR Review

Oh Hiiiiii 2018, Time for an HR Review

It's a new year which means new you, new resolutions, blah, blah, blah.  It also means new HR topics to consider for 2018, particularly considering all the fun 2017 brought us like this, this, this, and, oh yeah, this.  Here's some friendly HR advice to prepare for the New Year.

It's 2017 and you can Microchip your Employees!

Microchipping employees is a thing and IDK what's going on anymore...

In your annual review of your company's employment handbook, I bet you've never once thought to yourself "Hey! We should add a microchip policy!"  But maybe one day you will....

On Aug. 1, 2017 a Wisconsin tech firm introduced a microchip that can be implanted in the hand of its employees.  This single chip can do things like allow access to buildings and networks, use copiers, open doors, and possibly purchase items from the company's cafeteria.  While their policy on this microchip was voluntary (read: employees who opted out were not retaliated against), more than FIFTY (50) opted to get said microchip implanted under their skin.  Apparently the microchip is smaller than a grain of rice.  BUT STILL!

Employer Security via RFID.

For employers working in large spaces and with sensitive data and technology, the microchip concept adds a level of security unseen until now.  The microchips being used for employment purposes are essentially mini GPS's also called radio frequency identification ("RFID").  It allows employers to monitor and regulate access, as well as monitor and regulate time.  For example, these RFID devices can alert employers if a certain someone is spending an excessive amount of time "getting coffee."  These devices can also collect data on access to certain buildings, units, labs, servers, etc.  

Attorneys Caution RFID use (duh).

Anytime employers ask about sticking a GPS device in an employee's hand, I shutter to think of all the ways this scenario can go wrong.  Who pays the medical bills when one employee's implant causes an infection?  What happens to data collected while the employee is not working for the employer (e.g. evenings and nights)? How many exceptions will need to be made for ADA/Title VII accommodations and how will this even work?  What happens when that rice grain goes rogue and your workforce turns into robots? All these questions and so little answers cause all us attorneys to shrug and say "it depends."  

What Happens Next?

Only a few U.S. companies are experimenting with RFIDs on a voluntary basis.  Right now the cost behind these microchips will deter most employers from even considering the concept but I would no longer consider microchipping employees a thing of the future.  In other words, we'll probably be hearing more on this topic in the next decade.  In the meantime, I think I'll stick with microchipping my cat. 

They Tell Me It's an Election Year.... Politics in the Workplace 101

As we near Election Day and continue to entertain ourselves with Presidential debates, the topic of politics will likely find its way to the water cooler and may spark some mini-debates inside the office.  Is this acceptable in the workplace? Maybe/ maybe not.  Here is our 101 version of Politics in the Workplace:

For Employees Who Do Not Participate in Early Voting

Fun Fact:  Lines at polling locations can be long.  Some states have laws that require employers to offer paid time off to vote in an election.  North Carolina is not one of these states and our state laws do not address this issue.  Technically, employers in North Carolina can  require employees to use paid or unpaid leave to vote in the election.  The question then becomes whether an employer should actually do this.  That answer depends on what type of corporate culture you want for your workplace.  It is a “best practice” to allow employees a reasonable amount of paid time off to vote in an election.  This doesn't need to be half a day - it could be only an hour or two and should come with some flexibility when there are surprisingly long lines or equipment malfunctions that cause a delay in the voting process.  Also, if you do not have a Voting Policy in your handbook, now may be an excellent time to make this addition.  

Federal laws also stay (mostly) quiet about employee voting during the workday; however, the National Labor Relations Board (NLRB) has quite a bit to say about these topics in the workplace. 

 The NLRB & Election Season:

The NLRB enforces a federal law called the National Labor Relations Act (NLRA). The NLRA has various employee protections for private sector employees regardless of whether or not the employee is a member of a labor union.  Often NLRB decisions can be seen as a bit outrageous but the NLRA does say this in Section 7:  

"[Employees]... have the right to engage in other 'concerted activities' for the purpose of collective bargaining or other mutual aid or protection." 

"Concerted activity" is a broadly defined term (like every other legal term) but it essentially includes any activity conducted for the mutual benefit and aid of an entire workforce.  For example, statements regarding workplace conditions made to one's colleagues is typically protected under Section 7 (above).  This may also include statements like "I'm voting for Hillary because of her position on equal pay - something needed here."   See how the election may come into play?  

As always, there are numerous caveats to the general rule.  Employees should be mindful of politically-tinted comments and jokes that could be seen as harassing.  For example, circulating a meme about Trump's latest comments on "locker room talk" could be seen as offensive.  Similarly, comments regarding Hillary's appearance or femininity could also be seen as harassing. As funny as the two candidates may be during debates, it may be safest to not repeat anything either candidate has said. 

The Dos and Don’ts of Election Talk in the Workplace:

Employers should consider reminding employees of the company’s social media policy just to make sure political discussions stay on personal social media accounts as opposed to corporate social media accounts (unless the NLRA applies and the comment is protected concerted activity).  Employers should also recommend to employees that election talk may not be the best for morale, could harass or insult employees with opposing views, and may harm workplace efficiency.  What your employees do on their own time is their call but Employers can at least drop hints as to what may be interpreted as inappropriate in the workplace.  Just keep in mind that the NLRA will also apply so protected concerted activities must be permitted. 

 To summarize, Employers should consider doing the following this Election season:

1.     Allow Employees reasonable time during the workday to vote.

2.     Encourage Employees to refrain from talking (or joking) about the election.

3.     Update or implement a voting policy in the employment handbook.

4.     Update your social media policy in the employment handbook (or remind employees of what it says).

5.     Refrain from punishing employees who are engaging in concerted activity protected under the NLRA. 

This is very general advice considering how off-beat the NLRB can sometimes be.  If you want a more thorough analysis, give us a call and we'll chat!

One last thing:  you can find out more about your polling location for Nov. 8th here and can learn more about voting and early voting in NC here