Employment Laws

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We often hear that certain employer actions are “illegal.”  Sometimes employees think so, sometimes its supervisors, and occasionally its even HR professionals (or even non-employment lawyers dabbling where they shouldn’t.)  While some employer actions are legally prohibited, below are a few actions often thought to be illegal that are actually legal.  Of course, these actions are often terrible ideas — and easy ways to get sued.

What does it mean to provide a “safe” workplace?

For careful employers, the concept of workplace safety is not limited to preventing accidents (slips, falls, and equipment injuries) that lead to workers’ compensation claims.  Employers must also consider the threat of workplace violence, which usually takes one of three forms:  (1) violence between co-workers; (2) violence between employees and customers; and (3) violence between employees and the general public.  Each industry faces unique challenges in preventing workplace violence.  Let’s consider two examples – a bank and a hospital. The bank is likely to be more concerned with preventing a robbery than the hospital.  On the other hand, the hospital may focus more on protecting employees from potentially violent patients.  In both examples, the careful employer must take reasonable steps to assess and prevent violence against employees.

Organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to establish federal and state laws that specifically prohibit discrimination in employment based on a person’s weight.  According to a NAAFA report from 2007, the likelihood of weight-based employment discrimination is 12 times more likely for overweight adults, 37 times more likely for obese persons, and 100 times more likely for severely obese adults.  Yet to date, no federal legislation exists that specifically prohibits discrimination based on weight, and only one state (Michigan) and a handful of cities have passed laws that make weight-based discrimination illegal. 

Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information.  We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.

Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets.  Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid.  While these points are true (and are briefly explained below), the real question is:  Does demanding a Facebook password really serve an employer’s best interests?  Put simply, is it a good idea?

A few years ago, the New York Times ran an article about investigations into the legality of unpaid internships at for-profit businesses, explaining that such investigations were being conducted by the U.S. Department of Labor, as well as by the labor departments of several states, including California, Oregon, and New York.

At that time, many practitioners expected that there would be a tidal wave of class action lawsuits brought by former unpaid interns but, surprisingly, that wave did not come…until now. 

The California legislature recently passed a bill prohibiting employers – with some specific exceptions – from obtaining and using credit reports to screen candidates and employees. Check out this report at Law360. California becomes not the first, but the sixth state to have passed similar legislation, joining Hawaii, Washington, Oregon, Illinois and Maryland. Even more states are considering similar restrictions, and there’s even a proposal before Congress that would do the same thing on a national level. What else? Oh, the EEOC takes the position that the use of credit reports may be biased against minorities and females. Here’s the EEOC’s official take. So, not only may using these reports be unlawful in many states, but you could also face charges of discrimination over the use of credit reports. Finally, don’t forget that the bankruptcy code, which applies nationwide, prohibits an employer from discriminating against an employee on the basis of bankruptcy – basically, you can’t fire someone solely because of a bankruptcy, whether your business is a financial institution or not.

We have all heard the phrase “I’m from the government and I’m here to help.”  There are many different reactions to that phrase:  some are appreciative, some are cynical, and some are not appropriate to be repeated in this blog.  One recent effort to help by our federal government is sure to receive those varied reactions – and is also certain to bolster lawsuits against employers that are not meticulous about recording their employees’ hours and correctly paying their wages. 

Online social media presents great rewards – and potential risks – for employers.  With more than 500 million active users on Facebook alone, there is no question that a large percentage of employees in every workforce use some form of online social networking.  Even when information on social media networks is not publicly available (such as when employees use “friends only” privacy settings in a social media network such as Facebook), employees often grant access to (“friend”) their supervisors, many of whom also use the same social media.  Likewise, there is no doubt that social media use goes on during work hours and at work – even where employers takes steps to restrict this behavior. 

Who in HR can say they have not been tempted to “spy” on an employee on Family and Medical Leave Act (“FMLA”) leave to make sure that they are not faking it?  Wouldn’t it be great to catch that employee you are sure is lying as he is playing golf when he should be home recovering from his back surgery? Or catching the employee on leave supposedly recovering from a hysterectomy right after she returned from a week-long vacation in Mexico?

Surely, under these circumstances you could safely terminate the offending employee…couldn’t you?