I recently wrote an article for the Houston Business Journal on this subject, which can be found here.

With the 2016 election campaign already going strong, now is a good time to review company policies in this area to ensure  political discussions in the workplace remain civil, and will not result in harassment complaints or fist fights. Some tips from the article include:

1. Employees of private companies generally have no right to free speech in the workplace. Management has the right to limit discussions which disrupt the workplace or impact productivity.
2. Most employees have no desire to hand out literature or campaign for a candidate at work; if you have someone who wants to take such steps, consider your solicitation policy and the need for consistency – you may have to allow a union to solicit your workers if you allow solicitations for a particular candidate or cause.
3. Be particularly vigilant in regard to political discussions in the workplace which cross over into racial or religious issues. These types of discussions can easily become heated and misconstrued as evidence of discriminatory bias, especially if undertaken by a supervisor or other official responsible for making employment decisions.
4. There is no legal requirement that employers or management be neutral in election campaigns, but it helps for management to set an example when it comes to respectful workplace discussion. Remember – there will be a lot of unhappy people the day after the election (no matter what happens) and gloating or retaliation against a coworker is not good for morale.
5. Lastly, do not allow employees (especially management) to question coworkers about their vote – in Texas (and most states) it is illegal to retaliate against someone based on their vote, and many employees are uncomfortable with disclosing their views.

David Barron

More Posts

Last week, President Obama announced yet another executive order, this one removing questions about an applicant’s criminal history from applications for federal jobs. Similar laws have been passed in cities and states across the country, including New Jersey, where the President visited a federal detention center to announce the new order. Details on the announcement can be found here.

This move is the latest in a legislative effort that is clearly making some gains across the country. Nineteen states have passed ban the box legislation, and over 100 cities or counties have passed similar laws. This hodgepodge of laws is a nightmare for large employers who seek to have one uniform employment application across the country. Many have thrown in the towel and removed the question altogether to avoid the inadvertent use of an unlawful application in a jurisdiction where the question is disallowed.

One important reminder about this discussion is that these ban the box laws do not restrict an employer’s right to conduct background checks and deny employment to convicted felons. The stated purpose is to simply remove the question from the applica
tion as a screening tool, and delay the point at which the employer learns of the criminal offense (hopefully after meeting the applicant and forming a favorable impression). In my experience, however, removing the question on the application eliminates the opportunity for an applicant to “get ahead” of a background check by honestly disclosing a conviction and addressing it “head on.” Likewise, it takes away an opportunity for employers to test the honesty of an applicant to see if they will voluntarily disclose a conviction. Many employers are more apt to hire applicants with convictions if they are honest about their history, and this law will take away that opportunity.

Lastly, these laws take away a not so insignificant tool for the defense of employment litigation. Employers have long been able to raise after acquired discovery of dishonesty on the application as a defense to a wrongful termination case. In other words, if an employer discovers in litigation that an employee lied about his or her criminal history, and the history would have disqualified the employee from being hired, the damages available in the case can be reduced or cut off substantially. If the question is removed from applications, employers now have the entire burden for checking criminal background and the employee can simply remain silent without consequence (and hope the employer misses something).

David Barron

More Posts

It is common knowledge that the National Labor Relations Board (NLRB) has taken an aggressive position on employee use of social media constituting protected concerted activity.   In the last few years, the NLRB has repeatedly found that employee speech on social media critical of the employer was protected from disciplinary action.   It can take several years for cases to make their way through an evidentiary hearing before an administrative law judge and an appeal to the NLRB in Washington D.C.   After that process has concluded, the NLRB’s decision can be appealed to the United States Court of Appeals. 

The first such case to make its way to the federal courts is now pending at the Second Circuit and oral argument was held this week.   The case is Three D, LLC v. National Labor Relations Board, Case No. 14-3284, and involves “Triple Play Sports Bar and Grille.”  The restaurant fired a bartender over a Facebook post calling her employer an “asshole.”   The posting was “Liked” by another worker which made the comment “concerted” according to the NLRB.   The employer argued that the posting was capable of being viewed by customers and constituted “disloyal” or “defamatory” speech outside the law’s protections.   The NLRB argued that the comment was not sufficiently inflammatory and that employees have the right to heated and even profane expressions of discontent about their working conditions.

This case is an important one to watch because it is a test case for the NLRB’s aggressive litigation stance on protection for employee social media posts.   It will also be one of the first appeals court rulings on the question of whether a “like” on Facebook equates to a concerted action by multiple employees.   A decision is expected late 2015 or early 2016.

David Barron

More Posts

Recently, the news has been filled with employees who refuse to perform their duties based on political, moral, or religious beliefs. Kentucky clerk Kim Davis was jailed for refusing to issue marriage licenses to same sex couples following the ruling by the Supreme Court. Here in Texas, a Whataburger employee refused to serve police officers after publicized reports of a shooting. A similar incident was reported at an Arby’s restaurant in Florida. These cases raise the question – what should an employer do when an employee refuses to perform their job? Can the employee sue for wrongful termination if he or she is discharged?

First, it is worth noting that Kim Davis, the Kentucky clerk, is not an employee, she is an elected official. Elected officials generally cannot be terminated and serve at the will of the electorate. The focus of this blog posting is on employees. For example, what if your business employs a “Black Lives Matter” activist who refuses to serve a customer? What if a Christian employee refuses to serve a same sex couple visiting your business?

In both the Whataburger and Arby’s cases, the employees were terminated for refusing to serve police officers. Political expression is not protected in the private sector and employees do not have a right to engage in either free speech or activism in their jobs. Generally, employees who use their positions to make political statements with which the business disagrees can be discharged. Similarly, an employee who violates a company policy or local, state or federal law requiring service of all customers without regard to race, religion, or other classification, can be lawfully discharged.

There are two important potential exceptions. First, employees have a right to request a reasonable accommodation for religious beliefs. The employer has a duty to make a reasonable accommodation for religious objections to performing duties. What is “reasonable” depends on the circumstances, and the law does not require an employer to fundamentally transform a job or relieve an employee of performing essential duties. This issue is being litigated across the country as several non-elected officials (unlike Kim Davis who is elected) have been terminated for refusing to issue marriage licenses to same sex couples. There has also been much litigation over pharmacists refusing to issue birth control pills because of religious beliefs, and most states protect such refusals as long as another pharmacist is present and can administer the medication.

In Texas, employees are also protected from termination for refusing to perform an illegal act. For example, an employee who refuses to dump hazardous chemicals into a river, or engage in questionable accounting practices, is protected from adverse action. Given the over-legalization of society in general, and the workplace specifically, it is not hard for a creative lawyer to cast an objecting employee as refusing to engage in illegality.

The takeaway from these recent news stories is that employees making political statements generally act at their own peril and can be lawfully terminated. That said, employers should be careful and make sure that the conscientious objector is not protected , for example if the objection is based on a religious belief or a refusal to break the law. In such cases, employers should seek out legal advice.

David Barron

More Posts

As we have noted for months on this blog, the Department of Labor (DOL) has been hard at work on proposed changes to the overtime regulations. Everyone knew the minimum salary threshold for exempt status was going to be raised, but no one knew by how much. Well, the DOL apparently believes in the “go big or go home” method of rule-making and has proposed that the threshold be increased from $23,000 to approximately $50,000 next year. The measure will also be indexed to the Bureau of Labor Statistics (BLS)’s 40^th percentile of full-time salaried workers, and be increased annually.

The proposed rule also plans to increase the highly compensated employee exemption from $100,000 to $122,000 and index this threshold to the 90^th BLS percentile of full-time salaried workers. The hidden gem in the proposed rule is the request for comment on changes to the duties tests for the white collar exemptions. Among other things, the DOL is looking at putting limits on the percent of time that an exempt worker can perform non-exempt work. This is already the case under California state law, and the DOL specifically invites comments on whether the California standard should be adopted nationwide. Suffice it to say, adopting a California rule is almost never going to make it simpler for employers, or reduce the risk of litigation.

Our firm’s client alert on the development can be found here.

David Barron

More Posts

As more states jump on the medical marijuana bandwagon, employers are faced with increasing questions about how these changes in the law affect drug testing policies. The conventional wisdom has been that medical marijuana use, like alcohol, may be lawful for personal use, but employers can still terminate employees who show up for work under the influence.

On June 15, employers received some guidance from Colorado, one of the early adopters of legal marijuana use. The Colorado Supreme Court affirmed the dismissal of a wrongful termination case filed by a quadriplegic who worked for Dish Network. The employee was paralyzed in a car crash and used medical marijuana as a pain medicine. He tested positive in a random drug test in 2010 and was terminated. He filed suit claiming that the discharge violated Colorado state law, which makes it illegal to terminate an employee for engaging in a “lawful activity” outside of work.

The Colorado Supreme court noted that marijuana is still a controlled substance under federal law, therefore marijuana use is not a “lawful” action in an unrestricted sense. This rationale is troubling since there is a move afoot to change federal law to conform with the growing state court trend to allow marijuana. This holding suggests that if federal law was changed, the result would have been different, and the employee would have been protected from termination.

Our firm’s alert on the case can be found here, and this is an important read for all HR professionals in states where medical marijuana has been legalized.

David Barron

More Posts

In the last month, Houston employers have faced catastrophic rains, flooding, and now a tropical storm. We thought it would be a good time to dust off the Firm’s HR Guide for Hurricane and Disaster Preparation, which can be found here. 

The highlights of this guide include the following important legal points:

1. Chapter 22 of the Texas Labor Code broadly prohibits discrimination against employees who miss work to participate in a public evacuation order. There are exceptions, which are described in the Guide.
2. If an hourly non-exempt employee misses work because of weather, the employer has no obligation to pay the employee. The employer can allow (or even require) the use of vacation or PTO time to cover the absence.
3. Exempt salaried employees must generally be paid their full salary for the week if they are absent on a day the office or site of employment is closed because of weather. If the office is open, and the employee cannot make it to work because of weather, the employee may be docked only in full day increments – not a partial day. As a practical matter, this means that the employee must be paid if the exempt employee performs any work from home, including responding to emails or returning phone calls. For that reason, we don’t recommend docking exempt employees for weather related absences but instead requiring the employee to make up the time elsewhere (which is always allowed).
4. Employees who must stay home to care for a sick or disabled family member during a weather emergency may be protected under the Family and Medical Leave Act. We recommend extreme caution in disciplining employees in these circumstances without first obtaining relevant documentation to determine whether FMLA is applicable. 

Weather events in Houston can be stressful times for the workplace, and HR professionals are often caught in the middle between operational needs and employees seeking to stay safe and protect their families.  It is critical that companies understand the boundaries that cannot be crossed and the applicable laws in this area.

David Barron

More Posts