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.
How to Make Millennials Like You, Part 4 :-) The #Millennial with the Dragon Tattoo (and why it doesn't matter)
It's the end of February which makes it practically Spring and therefore time to so some "Spring Cleaning." What is one thing all companies should do annually but few actually do ever? Answer: Review, revise, or even just read their Employment Handbooks. If you fall into the latter category, here are some handbook provisions you should definitely not ignore, regardless of your size.
#1: Social Media & Data Privacy
People have a lot of devices (e.g. iPhones, iPad, Macbook, laptop, desktop, etc) which means people are super connected to the world. A major consequence of cool technology? We are so connected that our personal life often blends into our professional life. Because of this intersection, handbooks should have a policy stating employees have no right to privacy while accessing social media at work or on company-owned equipment. This policy should also address cyber security and set parameters for downloading apps and programs onto company-owned devices and state that proprietary information should not be shared online (with the exception of certain protected communications).
#2: Overtime & Wage Deductions
Every company should have a policy prohibiting unauthorized overtime AND a method in place for submitting and approving overtime work.
[NOTE: Just because you prohibit unauthorized overtime doesn't mean you don't have to pay overtime that has actually been completed. The policy, however, gives you grounds to terminate an employee for not having the overtime work approved. Get it, got it, good.]
In addition to overtime, if you make any deductions from paychecks (other than standard IRS/tax deductions), you should include details in your handbook. For example, if you loan tools to employees and take out the amount of the loan from their paychecks, this needs to be in writing. Also, the North Carolina Wage and Hour Act has some additional rules regarding wage withholdings that may also come into play.
#3: LGBT Rights
A lot of companies have already revised their anti-discrimination or EEO policies to include sexual orientation. If you have 15 or more employees, I would strongly recommend doing the same since more and more courts are recognizing LGBT protections under Title VII. Of particular protected status: transgender employees.
If you offer group benefits to employees, you should also revise any handbook policies regarding benefit eligibility. Recall the 2015 Supreme Court case that legalized gay marriage nationwide which in turn makes gay marriage included in a lot of group benefits offered to employee spouses and children (e.g. healthcare).
Many companies have anti-smoking policies in place but does your policy address e-cigs? If not, you may want to think this one over. If your company has banned smoking on the job, your employees may have the expectation this would include e-cigs too.
What about (legal) marijuana use? Marijuana is still illegal in North Carolina and most other states and even where it is legally obtained and used, courts have held that companies can still ban the use of all drugs including marijuana. This means a failed drug test is a failed drug test and can still be grounds for termination. Alert your employees who have taken a liking to Colorado and Washington.
Speaking of drug testing, did you know North Carolina has a Controlled Substance Examination Regulation Act? We do and its ignored a lot so you may want a review.
Retaliation claims are on the rise according to the EEOC which means it is worth talking about retaliation in your handbook. Employers, particularly those with 15 or more employees, should have an anti-retaliation policy for employees who report issues. Supervisors and managers should also be well-trained on retaliation so that they know how to deal with employees who report bad things in the workplace. You also want to make sure there is a good reporting procedure in place for employees to use when they need to report discrimination or similar complaints.
#6: Reasonable Accommodation
Another hot topic with the EEOC and pertinent to employers covered under the ADA and Title VII. Employers need to know how to deal with reasonable accommodations requests in the proper/lawful way. The best way to do this is to put it all in a written policy that is available to employees and supervisors alike. Once again, training supervising employees on how to identify reasonable accommodation issues is key.
Luckily for all the NC employers out there, our state did not enact any new employment laws in 2015. However, the federal courts and certain federal agencies have been all over the place with new interpretations of federal employment laws. Employment handbooks should be treated as living documents that are subject to annual review (at a minimum). If you want some help on this task, you know where to find us!
On November 24th, the Fourth Circuit Court of Appeals doomed one North Carolina Employer from enforcing an arbitration clause in its employment handbook -- even though the Employee admitted to receiving and acknowledging receipt of the handbook and continued to be employed by the company for several years. If you have an arbitration clause in your employment handbook that directs all dispute traffic to an arbitrator's desk instead of judge's court, you will want to read this very carefully.
In Lorenzo v. Prime Communications, L.P., Prime Communications did what many employers do: they created a dispute resolution process for employee complaints. However, their handbook also included a provision that stated any disputes will be arbitrated and as such employees waive their right to litigate employment disputes. Although arbitration clauses in employment agreements are controversial and remain unfavored in many federal circuits, the Fourth Circuit has generally been okay with these provisions, assuming the employee agrees to arbitrate any claims. (Key word: Agree).
The problem in this case is that the employment handbook said several times that the handbook is not a contract for employment and not legally binding (or "bindery" as it was misspelled in the actual handbook). On the employment handbook receipt signed by the Employee, it states the same and even adds that the employment handbook is merely suggestive and not binding. You are probably scratching your head because this handbook receipt says what all of them should: the handbook is not a contract for employment and should not remove the employee from the at-will employment status. But when you include an arbitration requirement inside the employment handbook, it too would fall under the umbrella disclaimer "this is not a contract."
The Fourth Circuit Court of Appeals doomed the arbitration clause in Prime's employment handbook because Prime's "this ain't no contract" language doomed the arbitration clause as just another non-binding part of the handbook. That is quite a hefty lesson learned for Prime who has now lost their appeal to enforce the arbitration clause and now has to litigate (or settle) the employment dispute inside a good old fashioned court room with a jury and a judge.
How do you avoid this? For starters, know that courts will not enforce an arbitration clause unless its in the form of a contract between the parties. This means it must be formed between parties with a meeting of the minds and it must fit all the other characteristics of a legally binding contract, consideration included. Consider making the arbitration provision a separate written agreement between employee-employer (HINT: make sure any such contract states the employee is still "at-will"). Another option is to keep it in your handbook but make sure any "this is not a contract" language carves out the arbitration clause as the sole exception. This, for many of you, will require a good look at your current handbook and a revised handbook receipt (which I hope everyone has from EVERY employee).
If you're confused about this, you're in luck because I love reading handbooks and marking them up with my red pen. Employment laws change constantly so we always advise you give it a good look every year and a more thorough review every three. Unlike Prime, you are not doomed because we got your back.
A lot of people are talking about LGBT discrimination. Yesterday, Texans in Houston voted to repeal a local LGBT anti-discrimination law which was considered by most to be a major blow to the LGBT community. Interestingly enough, based on a recent EEOC List of "Top 10 Litigation Trends," LGBT discrimination ranked #4 with over 1100 EEOC charges filed in 2014 and over 600 charges in the first half of 2015. Despite having the right to be lawfully married in all 50 states, there are still no federal anti-discrimination laws that apply to LGBT discrimination in the workplace. In fact, LGBT is not even a federally protected class as far as employment discrimination is concerned. So how can LGBT discrimination rank #4 with the EEOC's hot topics list? Answer: Title VII. DUN. DUN. DUN.
Title VII & LGBT Discrimination
Employers who fall under Title VII (meaning they have 15 or more employees), cannot discriminate based on sexual orientation. Yes, yes, I realize Title VII only protects race, color, national origin, sex, and religion but most courts have held that discrimination based on sexual orientation is the same as discrimination based on sex. Here are a few examples of how this has played out in the courts:
EX 1: Transgender man transfers jobs for family reasons. Upon being transferred, he informs supervisor that he will be transitioning soon and will need to change his name and sex on all employment forms. Suddenly a budget is cut and the job is "eliminated." Transgender employee files EEOC complaint. EEOC (in eventual appeal) holds that transgender employee can sue based on sex discrimination under Title VII. Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
EX 2: Homosexual man is told his "gay stuff" is "distracting" to the workforce. He is later denied a permanent position with the company. EEOC (in another appeal) holds that he can sue under Title VII sex discrimination theory because being discriminated against for being gay is the same as sex discrimination for purposes of Title VII. David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).
EX 3: Transgender employee denied job opportunity because she did not conform to social stereotypes about sex during the transitioning process. EEOC filed suit on plaintiff's behalf (still pending but based on Title VII and sex discrimination). EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014).
I think you get the point, but more examples can be found here.
What about North Carolina?
North Carolina has few employment laws and LGBT protections are unfortunately not one of them. There is a public policy in NC that employers with 15 or more employees cannot discriminate based on sex so you may be able to get into court based on a Wrongful Discharge Against Public Policy theory.
Don't want to be a Hater? This is what you should do:
Employers should protect LGBT employees from discrimination in the same way they are supposed to protect other protected classes from discrimination. Based on recent EEOC decisions, employers with 15 or more employees should go ahead and protect LGBT employees like they would any other protected class (meaning protection is pseudo-mandatory under Title VII for covered employers).
This protection usually starts as an anti-discrimination policy in an employment handbook and ends with the employer enforcing this policy by actively investigating any claims of LGBT discrimination. Do yourselves a favor and make the EEOC happy and revise your anti-discrimination policies to include LGBT employees. If you want an extra credit gold star from the EEOC, consider offering support services for LGBT employees, especially transgender employees undergoing a formal transition.
For those of you that do not have an anti-discrimination policy in your handbook or a well-written reporting procedure, I encourage you to add both of these policies to your handbook. If you do not have an employment handbook (GASP!), I highly, highly, HIGHLY recommend you get one no matter how small your company and no matter how cool and fair you think you are.
Interested in developing an Employment Handbook? We've got you covered.
Earlier this fall, the National Labor Relations Board ("NLRB") decided that a company policy recommending that employees not discuss HR-related investigations with fellow employees was in violation of Section 8 of the National Labor Relations Act ("NLRA"). The NLRB strikes again.
The background of the Boeing Co. case (No. 19-CA-089374) goes like this: Boeing Co. had a policy that directed employees to not talk to colleagues about on-going HR investigations. The NLRB said this was not appropriate based on the employees' right to engage in "protected concerted activity" under the NLRA's Section 7. As part of the NLRB's enforcement powers, they required Boeing Co. to revise its policy to be in tune with the NLRA. In response to this requirement, Boeing Co. revised the language to say it was "recommended" that employees not discuss on-going HR investigations with other employees. The NLRB said this wasn't good enough because when it comes down to it, "recommend" and "direct" are the same thing.
SIDE BAR: The NLRA applies to all employers (except State and Federal Governments) and all employees, even those that are not unionized.
If this seems to be absurd, you are in good company. Internal HR investigations are very, very, (VERY) important. Whenever an employee files a formal complaint, no matter how benign, it is important that the employer launch an investigation- even if its a small one. Part of these investigations is collecting testimony from witnesses, the accuser, and the accused. As you can imagine, this information-gathering expedition can lead to the discovery of some highly sensitive information (think: sexual harassment investigations). Sometimes this sensitive information is private and sometimes it is very personal. All the time, it should be treated as confidential which is why a policy directing employees to stay quiet about an on-going investigation not only makes sense but is sometimes important. Now the NLRB says this is a disruption to the employee's right to engage in protected concerted activity and therefore a violation of an employee's rights under the NLRA. I'm going to have to disagree*.
So what do you do now? I have no clue. My first suggestion would be to politely suggest that employees refrain from talking about an on-going HR investigation; however, the NLRB shot this down. Now HR leaders everywhere are in an NLRB pickle: Do you run the risk of a squabble with the NLRB? Do you continue to suggest-direct employees to refrain from talking about HR matters? Or is there some magical word the NLRB finds appropriate? IDK.
I've thrown up my hands on this one. If you have a policy that says something similar - which my guess is most of my readers do - it may be worth a second glance to see if your wording is NLRB-friendly (or at least friendly-ish). Otherwise, I simply give you the knowledge to make an informed decision based on calculated risk. If you want to know more, just ask.
[*] Now for the editorial: I do not think asking for employee confidentiality during an HR investigation is in violation of the NLRA. Protected concerted activity under Section 7 of the NLRA protects the employees' rights to engage in activities intended to benefit the "mutual aid or protection" of the workforce. During an HR investigation, the information gathered is often personal, private, and specific to a complaint - not about mutual aid and protection of all employees. Assuring confidentiality is one of the reasons a lot of employees come forward with complaints and that, to me, has far more value to the mutual aid and protection of the workforce.
Because many couples share access to personal email accounts such as gmail, hotmail, or yahoo, some people choose to use their work email as their "private" method of correspondence. Some people also used their work emails for their Ashley Madison accounts (looking at you, certain Government Employees). Not cool.
Now may be a good time to review your company's email policy and refine it to address this growing concern. I always recommend that companies give their employees a work email. As part of this, I also always recommend companies have a policy in place that states work email addresses should be used for work-related purposes only. A good email policy should also state that no employee has a right to privacy when it comes to his or her work email. Period. No exceptions. Not only does this preserve the sanctity of the work email by making it more secure from the outside world, it also encourages employees to keep their personal doings outside of the office.
If you do not have an email policy in place, I would strongly consider implementing one soon. It doesn't need to be a lengthy work of art, it just needs to get to the point: it is a violation of work policy to use work email for personal correspondences and/or personal reasons that are unrelated to one's position with the company. Any violation of this policy should lead to disciplinary action pursuant to the company's disciplinary policy.
If you already have a solid email policy, now may be a good time to remind employees about what it says. There is no need (nor is it appropriate) to search the Ashley Madison database and call out your cheating co-workers, but it may be worthwhile to simply state the obvious: some people may be using work emails for personal reasons and this is in violation of a company policy.
Cyber security is a big deal and this is one of the easiest (and cheapest) ways to protect your company from cyber threats. Give your employees a work email address but also give them rules. #theend