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By Tim Garnett
As technology and social norms continue to change, it is up to employers to
reflect those changes in their personnel policies. Many companies have
become familiar with the standard employment issues that need to be
addressed, but several issues have begun to emerge that may not be so
obvious. You may want to consider amending your facility’s personnel
policies to deal with some of the recent developments in technology and
emerging legal issues in the workplace.
E-mail Policy
Employers can lawfully limit the use of company e-mail, according to a
recent decision by the National Labor Relations Board. Specifically, the
NLRB ruled that an employer’s policy prohibiting the use of its e-mail
system for “non-job-related solicitations” could lawfully discipline
employees who used the company’s e-mail in support of union organizing.
Employers can take advantage of this decision by updating their policies
regarding e-mail use to restrict non-work-related use of e-mail. The
employer’s enforcement of the e-mail policy can be troublesome, however. For
example, an employer may not allow one union to solicit employees but
prohibit another from doing so, nor allow anti-union employees to solicit
but not those supporting a union. It is also important for an employer not
to change their e-mail policy when there are signs of union organization
since the change may be viewed as discriminatory. On the other hand, an
employer may have policies that allow differential treatment of charitable
solicitations versus uncharitable solicitations, solicitations of a personal
nature (e.g., a car for sale) versus solicitations for the commercial sale
of a product (e.g., Avon products), invitations for an organization versus
invitations of a personal nature, solicitations versus mere talk, and
business-related use versus non-business-related use.
Blogs
Blogs are a creature of the 1990s and are here to stay. Blogs are online
personal journals that reflect the writers’ opinions and comments, and often
hyperlink to other blogs or Web sites. While blogs are similar to e-mails as
a form of electronic communication, blogs are much different in that they
can be read by hundreds of thousands of readers — sometimes referred to as
“communications on steroids.”
Employees can cause problems for their employers when they use blogs to
disclose confidential company information such as customer lists or pricing
information. Employees may intentionally or unintentionally violate
securities laws by disclosing nonpublic information that affects the stock
price of a publicly traded company.
Although some employers encourage employee blogging, employers need to be
aware of the immense power these bloggers have to tarnish an employer’s
image. In order to protect themselves, employers should create policies
about blogging in order to minimize their risks, but they should be cautious
about not going too far. For example, a policy prohibiting employees from
saying anything negative about their employer could run afoul of the
National Labor Relations Act since this type of discussion is at the core of
the right to form unions. Instead, restrictions should be specific,
prohibiting the disclosure of trade secrets and confidential business
information like customer lists, business plans, formulas and pricing data.
Also, these policies should restrict employees from disclosing private
confidential information, like Social Security numbers and medical records,
about other employees.
Romance in the Workplace
What do Bill Gates, Steve Ballmer (CEO of Microsoft) and Steve Case (AOL)
have in common? They met their wives at work. Although there are many
examples of successful workplace romances, there are just as many examples
of workplace romances that turn sour, poison the workplace and even end up
in lawsuits. So how should an employer handle romance in the workplace? The
reality is that employers can’t prevent workplace romances, but there is a
way to manage them so that employers protect themselves from possible
discrimination, harassment and retaliation claims.
One approach is to establish a formal policy that prohibits relationships
that create an actual or perceived conflict of interest. For example,
supervisors should be forbidden from having relationships with subordinates.
Such relationships clearly create a conflict of interest if the supervisor
can advance the subordinate’s career or affect his or her pay. At a minimum,
employers need to require managers to disclose relationships with
subordinates and take steps to ensure any direct-reporting relationship
between employees involved is eliminated. The policy should clearly state
the potential consequences for policy violations. Another approach is to
consider a “love contract” when a co-worker relationship surfaces. The
contract is a written agreement in which the parties agree the relationship
is voluntary, they will not engage in public displays of affection, and they
will not participate in any decision making that would affect the other’s
pay, promotional opportunities or performance reviews. The “love contract”
should also include a reminder about the employer’s anti-harassment policy
and a commitment that if the relationship ends, there will not be
retaliation against each other.
Workplace Bullying
A new type of harassment claim is emerging — “workplace bullying.” Workplace bullying occurs when co-workers and supervisors intentionally mistreat
another employee through verbal and nonverbal behaviors ranging from the
silent treatment to physical behavior. Unlike traditional forms of
harassment, workplace bullying is not necessarily motivated by an employee’s
race, ethnicity, sex or disability.
Workplace bullying legislation already exists in several countries. The
Canadian province of Quebec, for example, requires employers to take action
to prevent psychological harassment. Legislatures in at least 10 U.S. states
have attempted or are attempting to introduce legislation to combat
workplace bullying. U.S. courts have not officially recognized workplace
bullying, but employees have won jury verdicts based on evidence that
appears to be bullying. For example, an employee with Asper-ger’s syndrome
(a condition in which the affected individual has difficulty interacting
socially) had her voice mail and e-mail taken away because of her lack of
social skills. The community college she worked for then continued to try to
get the Asper-ger’s employee to resign by cutting her benefits and pay. A
jury agreed the employee had been “bullied” and awarded her almost $300,000.
In order to reduce the risk of possible litigation, many employers are
instituting policies that address workplace bullying. These policies need to
treat workplace bullying the same way any other harassment claim would be
treated. Employers should prohibit all unacceptable behavior, both verbal
and physical; promptly investigate any allegation; and prohibit retaliation
against employees alleging workplace bullying. fm
Tim Garnett
is a managing shareholder with Ogletree Deakins and is based in St. Louis.
He may be contacted attim.garnett@odnss.com
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