Q: How does the current National Labor Relations Board view employee handbook policies?

A: Under the Trump administration, the National Labor Relations Board (“Board”) has shifted in a more employer-friendly direction, including with respect to workplace policies.  In a December 2017 decision, the NLRB reassessed the standard for evaluating when neutral workplace rules violate the National Labor Relations Act (NLRA). In that decision, the Board defined three categories of employer handbook rules and policies: (1) rules that are generally lawful; (2) rules that warrant individualized scrutiny; and (3) rules that are plainly unlawful.
Continue Reading NLRB Provides Updated Guidance on Employer Policies and Handbooks

Q.  Do you have any tips on how to ensure that our company holiday party does not lead to a new year liability?

A.  As the year comes to a close, many employers often celebrate with a holiday party as a way to thank employees for their contributions. The holiday party is meant to build comradery with co-workers, and provides an opportunity for all employees, management and non-management, to “let their hair down”.  A festive occasion however, can turn into a legal nightmare if employers fail to set expectations.  Everyone has heard stories of an employee (or two) having too much to drink at the holiday party and making an inappropriate joke, getting “touchy” with a co-worker, or getting into a car accident.  By following a few simple rules, employers can attempt to prevent such legal disasters.  Below are some suggestions to help ensure that your holiday party does not end up as the focus of a lawsuit.
Continue Reading How to Celebrate the Holidays Without Ending Up in Court: Tips for Hosting a Corporate Holiday Party

Q.  Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?

A.  Possibly.

While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.
Continue Reading Termination for Social Media Activity May Result in Unemployment Compensation Benefits

Q.  Can employers prevent employees from recording conversations in the workplace.

A.  Sometimes.

As technology continues to advance, so does the likelihood that everything you say and do is being recorded, even in the workplace. With most employees having access to smartphones and other similar devices, there has been an increase in the number of employees engaging in surreptitious surveillance as a means of trying to document alleged wrongdoing and to assert and prove legal claims.  These recordings are being used more frequently in discrimination litigation.  Employees who secretly record workplace conversations often regret it, because the recordings usually depict an employer attempting to be reasonable, and it makes the employee look sneaky and manipulative. However, employers often want to prevent these recordings from happening in the first place. Whether an employer can prevent employees from recording conversations in the workplace depends on federal and state wiretapping laws, and the interests the employer is attempting to protect in relation to employee rights.
Continue Reading Surveillance in the Workplace

Q: Do I need to pay my employees if my company has closed or temporarily shut down operations due to a natural disaster or inclement weather?

A: It depends.

In the aftermath of Hurricanes Harvey and Irma, and in anticipation of the upcoming winter snow season, many employers are questioning whether they need to pay employees when their company cannot open due to a natural disaster or inclement weather.
Continue Reading Paying Employees during a Shutdown due to Natural Disasters and Inclement Weather

Q.  My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?

A.  Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:

  • All other candidates in the job category must also be required to submit to the physical;
  • The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
  • The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.


Continue Reading Physical Exams as a Condition of Employment: Are They Permissible?

Q: Now that the election is finally here, am I required to give employees time off to vote?

The answer to that question depends on which state you are in. There is no federal law that requires employers to give time off to vote, but many states do have such laws.  While the laws vary by state, in general, these kinds of laws provide that employers must provide time off to vote if employees do not have sufficient time to vote outside of working hours.  State laws vary as to whether the time is paid or unpaid, how much time must be given, and how much time is “sufficient” to vote outside of working hours.  Many states provide that employees are only entitled to voting leave if they provide advance notice to the employer.
Continue Reading Employers and Election Day: Voting Leave

Q.  Are there any issues I should be concerned about with regard to the Zika virus and upcoming flu season?

A.  Media attention about the Zika virus seems to have lessened now that temperatures in the Northeast have cooled.  If your business requires employee travel to Zika-infected areas, however, there are several issues for you

Q.  My office likes to celebrate Halloween. With all the talk about “creepy clowns,” should I be worried that our celebration will get out of hand?

A.     Creepy clowns are making national headlines as clown sightings spread throughout the country and on social media. Whether the clown prank turns more sinister remains to be seen. In the meantime, however, ‘tis the season of goblins and ghouls, and now is a good time to remind employees of some do’s and don’ts to maintain professional decorum while celebrating the Halloween holiday:
Continue Reading Creepy Clowns and the Workplace

Q.  Recently, two employees almost came to blows arguing over the merits of a Trump versus Clinton presidency. Can our company prohibit employees from talking about politics in the workplace?

A.  The 2016 presidential election has created the most intense and divisive political environment in recent memory. What can a company do if the banter of cable news, talk radio, and polarizing political Facebook posts spills into the workplace?
Continue Reading Prohibiting Politics in the Office