However, employment discrimination on the basis of sex can take other forms, such as a hostile work environment. Employers in this predicament may be uncertain whether certain conduct crosses the line into prohibited practices. In that regard, a recent article offers advice.
]]> First and foremost, the nation’s top federal watchdog against workplace discrimination, the U.S. Equal Employment Opportunity Commission, has published guidance on the sexual harassment. The EEOC defines a hostile work environment as conduct that unreasonably interferes with an employee’s work performance. The conduct may be intimidating, offense, hostile, or constitute verbal or physical conduct of a sexual nature. Under that definition, even behavior such as telling dirty jokes could give rise to a sexual harassment claim.Yet victims of a hostile work environment may be afraid to report such discriminatory treatment out of fear of retaliation from their employer. Others may wonder how they could prove their claim, in the absence of physical evidence.
Many Maryland employers take a proactive approach to this issue by codifying their internal procedures for reporting sexual harassment. Such provisions, contained in employee handbooks or even employment agreements, can provide for a confidential reporting process that will protect both the victim and the accused until an investigation can be completed. Sexual harassment trainings are another way to ensure that employers don’t find themselves implicated by discriminatory behavior committed by lower level supervisors or other employees.
Source: huffingtonpost.com, “Sexual Harassment: Know Your Rights,” Jincey Lumpkin, April 17, 2013
]]>The country’s top enforcer of union protections -- the National Labor Relations Board -- set the groundwork by determining that Facebook conversations among employees posting complaints about their working environment or supervisors could constitute activity protected by the National Labor Relations Act. That determination may apply even for employees who are only considering unionizing, and not already members of a union.
]]> The U.S. Securities and Exchange Commission recently approved using Facebook and Twitter for companies making certain types of investment disclosures, such as reported earnings. Such company announcements were previously reserved to more formal channels, such as SEC filings or press releases.Finally, a recent study found that more than three-quarters of companies surveyed use social media for applicant recruiting. Many human resources departments also confirm that social media might even be a resource for screening or background checks, although professional networking sites, such as LinkedIn, might generally be regarded as more appropriate for that purpose.
To avoid ambiguity, an employer might codify its best practices and expectations regarding Internet use and email or other digital communications on corporate servers, accounts and equipment.
Source: insidecounsel.com, “The risks and rewards of social media,” Adele Nicholas, May 1, 2013
]]>The Prince George's County school district likely has policies addressing the consequences of an employee being arrested and/or convicted of a felony. Such policies might be contained in the man's employment agreement, or perhaps in employee handbooks. In any event, the man will likely suffer employment consequences, in addition to any criminal liability.
]]> Although this story involves an unusual workplace -- an elementary school -- and an alleged felony, it can still serve as an example of the benefit of preventive employment policies when it comes to sexual harassment or discriminatory or unlawful behavior in the workplace.Indeed, sexual harassment is one of those issues which employers might be well advised to address in their employee handbooks. Many media publications regard allegations of a hostile workplace or discriminatory treatment based on sex as newsworthy, so such complaints often make regional headlines.
Title VII of the Civil Rights Act of 1964 is the federal law under which this type of employment discrimination claim might be brought against certain employers. In addition, expanded protections may also be available under state law, such as the Maryland Fair Employment Practices Act.
Yet the Equal Opportunity Commissions recommends doing more than simply investigating allegations of unlawful discrimination and enforcing violations. To encourage prevention against sexual harassment in the workplace, the EEOC advises employers to offer employee training and to institute an internal complaint process. The Maryland Commission on Human Relations adopts a similar posture, suggesting that employers might reduce their potential exposure to sexual harassment claims by codifying personnel policies and training staff.
Source: greenbelt.patch.com, "School Employee Charged with Sexually Abusing Student," Jenni Pompi, April 23, 2013
]]>Maryland officials have reportedly already indicated their support for the proposal. Greenbelt's city council also expressed an affirmative vote for the FBI's proposed relocation to a site situated within access of the Greenbelt metro station. However, deliberations are still ongoing, as the FBI also considers several other regional locations.
]]> Having a federal employer in Prince George's County might not only stimulate local business, but also provide a model for local employment agreement practices. In a slumping economy, the potential for disputes related to employee benefits and diversity practices might be increased. The FBI's approach to such matters, viewable on its website, offers some guidance in matters of employer-provided health benefits, on-the-job injuries, retirement benefits and proactive measures against workplace discrimination.Of particular note is the FBI's commitment to diversity, reflected in various diversity programs modeled after the best practices put forth by the Equal Employment Opportunity Commission. Those programs offer training in cultural diversity to every employee. The FBI also has a monitoring and reporting procedure for hiring practices not in compliance with applicable federal and state discrimination laws.
Although every employer is responsible for designing and installing its own employment policies, the FBI is an example of a preventive approach to employment law issues and disputes. One of the best ways to head off future employment disputes is to codify labor procedures in employee handbooks, employment agreements and official corporate policies. In that regard, an employment law attorney might help local Prince George's County employers ensure that all pertinent employment areas are addressed. Making such information visible and accessible to all employees might help to minimize employment-based claims or misunderstandings.
Source: greenbelt.patch.com, "Maryland Congressional Delegation Backs FBI in Prince George's County," Jenni Pompi, April 11, 2013
]]>However, readers may not have known that employment disputes can arise even before an employment relationship has been formalized. For example, employers might like to inquire whether an applicant has a criminal record. However, including such questions on job application forms might get an employer into trouble.
]]> According to a recent study, over 90 percent of American employers perform some sort of criminal background check on potential hires. However, if an employer's official hiring procedures -- even if facially neutral --- produce a disparate impact of excluding members of a protected class, the employer may find itself defending against a racial discrimination claim brought under Title VII of the Civil Rights Act of 1964.President Obama's nominee for Secretary of Labor, Thomas Perez, recently discussed this very issue. Perez confirmed that he advocates disparate impact testing on employers who contract with the federal government. Yet one commentator specifically questioned how that testing would work in Prince George's County, which has a majority African American demographic.
What this discussion illustrates is that employment law can implicate issues outside of the four corners of an employment agreement or employment contract. A Maryland employer's official employment policies may be scrutinized based on the best practices of its human resources department, employee handbooks, job application forms, and other company documents.
Source: washingtonexaminer.com, "Sunday Reflection: Ken Masugi: Labor Department is wrong place for Tom Perez," Ken Masugi, April 13, 2013
]]>However, the controversy over the educational reforms made by neighboring District of Columbia Public Schools -- which made national news and prompted lawsuits by the local teachers' union -- is still fresh in the minds of many individuals. Perhaps for that reason, many residents of Prince George's County voiced protest to Baker's proposal at the meeting.
]]> Baker's proposal would give him control over the school district's $1.7 billion budget and allow him to appoint the next superintendent. Lawmakers in the Maryland Senate may not agree, however. A modified bill in the state Senate would not permit Baker to have absolute control. Instead, the Senate bill would balance power, delegating budgetary decisions to the school board, while leaving Baker with hiring authority over the next superintendent.Several teachers' unions and educational associations also oppose Baker's proposal. Educators claim that placing control in a single individual's hands -- essentially removing public oversight of the school district -- is the not solution to improving student scores and achievements. Rather, these advocates claim that increasing parental involvement and using funds to attract quality teachers are more practical steps to improvement.
The reform proposals may also give rise to employment law disputes. Members of the teachers' union negotiate the terms of their employment in a collective bargaining agreement with the school district. With absolute power, however, Baker might be tempted to breach the terms of such agreements, giving rise to lawsuits -- in much the same fashion as the union lawsuits arose in the District. For some readers, that would be history repeating itself.
Source: thehilltoponline.com, "Rushern Baker Takes Over Prince George's School System," Ashley Freelon, April 11, 2013
]]>A recent example from Charles County provides context. A county administrator had been hired in an at-will position in 2009. However, a local election the following year replaced 80 percent of the five county commissioners to which the administrator reported. In June 2012, the administrator received a letter, serving as 10-day written notice of her termination. The administrator later read in the local newspaper that the county commissioners' decision, made in a closed-door session, had passed by the narrow margin of three in favor, two against.
]]> In response, the county administrator wrote a letter to the editor, which the local newspaper published. The letter thanked the local community, while perhaps hinting at the politically divided nature of the local administration. The administrator recently accepted a new position in St. Mary's County, where the local commissioners including a waver in her employment contract regarding the residency requirement.As this example illustrates, the press often scrutinizes employment agreements -- especially those involving local, state or federal government positions -- when an employer makes a reduction in force or a termination. For that reason, it is important for an employer to memorialize all material terms in writing. In that regard, a consultation with an employment agreement attorney may be of benefit. An attorney can ensure that no potentially controversial issues are overlooked.
Source: somdnews.com, "Residency rule waived for new St. Mary's County administrator," Jason Babcock, April 3, 2013
]]>With those healthy economic signs, Maryland readers may question whether employees still need to fear a reduction in force. Unfortunately, two recent announcements suggest that layoffs are still an issue in the region.
]]> Serco Group, a defense contractor headquartered in Reston, Virginia with several locations in Maryland, recently announced that it might have to lay off 480 Maryland employees. The company also notified the state's Department of Labor. Frederick Memorial Hospital also recently issued a press statement, announcing its plan to lower its operating expenses by $6 million. Those cuts will likely also mean layoffs.When layoffs occur, several legal issues may arise. For that reason, many employers consult with an attorney with experience in such issues of labor and employment law. For example, in the case of municipal, state or federal government workers, a layoff or other adverse employment action is likely governed by regulations. As a result, a governmental entity may expose itself to a wrongful termination lawsuit if those regulations are not followed.
Employees of both governmental and private employers may also belong to a union that has executed a collective bargaining agreement with management. The terms of that CBA likely include provisions for layoffs and reductions in force. Finally, additional federal or state laws may also apply, such as the Worker Adjustment and Retraining Notification Act, which applies to certain employers with 100 or more employees.
Source: examiner.com, "Serco Group, Frederick Memorial Hospital plan layoffs," Warren White, March 11, 2013
]]>A 2008 decision by the U.S. Supreme Court provided the answer: An individual employee does not have to sue on behalf of losses to the plan as a whole. Rather, an employee can bring an allegation of 401(k) fiduciary mismanagement based on his or her individual account losses.
]]> Target date funds in 401(k) plan investments were particularly at issue in many employee inquiries. This type of investment strategy makes investment decisions based on an employee's target retirement date. However, some employees may not have been aware that many higher risk investments were included in target fund allocations. When those higher risk investments tanked in the 2008 crash, some employees may have been surprised.What this means for employers is that the scope of their 401(k) fiduciary duties must be clearly set forth in applicable disclosures. An experienced employment law attorney can review an employer's 401(k) plan, ensuring that the options and obligations of employer and employee alike are clearly defined. For example, an employer may be able to reduce exposure to fiduciary lawsuits by giving investment decision-making power to plan participants. An attorney can review all of the available options.
Source: New York Times, "Pushing Back Retirement, and Not Always for Money," Steven Greenhouse, March 12, 2013
]]>In a rash of recent cases in the DC metro area, exotic dancers have filed suit against the owners of the bars and clubs where they dance, claiming they are owed wages pursuant the Fair Labor Standards Act and Maryland Wage and Hour Law. These women might only dance a few nights a week at a club, may dance at several different establishments, and may make well over minimum wage in tips, yet this does not defeat the test for whether they qualify as an employee.
]]> The Supreme Court has directed courts to look at "economic reality" rather than "technical concepts" to determine employment status under the FLSA. The "test considers the extent to which typical employer prerogatives govern the relationship between the putative employer and employee." Henthorn v. Department of Navy, 29 F.3d 682, 684 (D.C.Cir.1994). In Henthorn, the court explained that it will ask "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.What an employer must take great concern with is that their misclassification of an individual as an independent contractor comes at a great price. Damages under the Fair Labor Standards Act and Maryland Wage and Hour Law can include not only unpaid wages for all hours worked, an amount equal to that in liquidated damages, and the opposing party's legal fees. Legal fees that -- in a case that was recently decided in the United States District Court for the District of Columbia - exceeded six figures.[1]
As always, it is best to consult with an attorney before determining how to pay and classify individuals hired by a business.
Contact Charles Henderson or Meredith Philipp for all your Labor and Employment questions.
[1] Quansa Thompson, et al v. The House, Inc., et al., Case No. 09-1942 (BAH/JMF)
]]>Standard practice does not necessarily mean standard implementation, however. Employers and employees alike should take the time required to thoroughly review and negotiate all material provisions in an employment agreement.
]]> As a preliminary matter, at least one commentator recommends consulting with an employment attorney before entering into negotiations. An outside voice can highlight provisions that might pose a risk, or other areas that should be included in an agreement. Should a dispute arise later, the terms of a well-drafted employment agreement may determine the outcome.An employment agreement should also proactively plan for a wide variety of employment contingencies. For example, market volatility -- especially in today's fiscal climate -- may require occasional labor adjustments, such as a reduction in force or relocation. An employment agreement that thoroughly describes the context and procedures for this personnel action may help to minimize the risk of a wrongful termination claim. Other material terms typically found in employment agreements may include salary information, equity-based compensation plan information, benefits and incentive policies, retirement benefits, severance, restrictive clauses, and best practices.
With the assistance of an employment agreement lawyer, an employer can ensure that all material employment terms are contained in an offer of employment. An attorney can also ensure that policies and procedures are consistent throughout all corporate communications, including employment agreements and employee handbooks.
Source: Forbes, "Negotiating an Employment Agreement," Stacey Hawley, March 11, 2013
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