When you were in elementary school you may have exchanged Valentines with each of your classmates. Then it was perfectly acceptable to give everyone a little box of candy and a card that said “Be Mine!” But the workplace is a completely different playground.
Valentine’s Day is the perfect storm for misunderstandings, which may lead to an increased risk of sexual harassment claims. What some employees find to be fun and flirty comments, cards, e-mails, text messages, or jokes, other employees may consider offensive and inappropriate. As co-workers increasingly communicate via social media sites, there are even more opportunities for problems. As Valentine’s Day is associated with love and romance, an innocent gift or card can easily be misinterpreted. Even the most innocent of Valentine’s cards may suggest romantic feelings. In the workplace, a card that says “Be Mine!” may be interpreted as a romantic gesture or sexual advance despite the intention. This issue is compounded by the fact that employees may choose more “adult” themes for their Valentine’s Day cards.
With Valentine’s Day fast approaching, employers would be wise to shield themselves against Cupid’s arrow to avoid sexual harassment claims.The best way to avoid claims of sexual harassment is taking preventative steps. An employer’s best preventive measures against sexual harassment claims include a comprehensive sexual harassment policy, which has a procedure for reporting harassment, sexual harassment training for all employees, and regular supervisor trainings to recognize and react to possible cases of sexual harassment.
If you have any questions regarding sexual harassment in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.
Some businesses host “Flu Vaccination Clinics,” but can you make getting a flu vaccine mandatory? Some employers can require that their employees get a flu vaccination as long as they have an objective business reason to require the vaccine.
If an employee objects to this requirement, the employer has an obligation to discuss this objection with that employee to determine why they object and what alternative measures may be reasonable in its place. In some circumstances, you may have an employee who objects to the vaccine because of their religious beliefs or because of their medical condition. For example, if you have an immune deficient employee who does not want the flu vaccine because it will make him or her sick, a reasonable accommodation may be required and you must engage in interactive dialogue with that employee. For instance, this employee may need to wear a mask instead of taking the vaccine.
Similarly, this accommodation may be appropriate where you have an employee whose faith prohibits the use of vaccines. It is important to note that if faced with a discrimination claim based on religion, the court is not going to consider whether the belief is a commonly recognized religion or whether the employee’s belief is sincere when determining if an employer adequately considered a reasonable accommodation. For example, a federal court allowed a religious discrimination claim to continue where an employee refused to be vaccinated claiming her religious belief was veganism.
If your business decides to create a policy mandating vaccinations make sure you are able to state why these vaccinations are essential, that you have an avenue for employees to object to the mandate, and that a process for considering the employee’s objections and how you may accommodate the employee is available. Employers faced with objections to a mandatory flu vaccination policy would be wise to consult with employment counsel before taking action.
If you have any questions regarding reasonable accommodations or discrimination, please contact any of the attorney’s at Royal LLP at (413) 586-2288.
From the playground to the workplace, not everyone gets along.
A growing number of states, including Massachusetts and Connecticut, have proposed workplace bullying legislation. Problematically, this legislation could expose employers to frivolous lawsuits because any disgruntled employee would have the opportunity to sue his or her employer for harassment. Unlike workplace bullying legislation, current anti-discrimination and anti-harassment laws require that harassment be tied to a protected category, such as race, sex, or disability. Title VII and the state counterparts were designed to give equal opportunities to classes of individuals who historically did not have these opportunities. Workplace bullying laws, on the other hand, are designed to prevent an abusive work environment generally. Problematically, the reach of this legislation could be expansive and proposed legislation provides little guidance as to what exactly constitutes an abusive workplace.
It may only be a matter of time before employers will be faced with obligations under workplace anti-bullying laws. In the meantime, employers may want to consider instituting anti-bullying policies that foster a culture of mutual respect.
If you have any questions regarding harassment in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.
Effective January 1, 2014, Connecticut’s hourly minimum wage will increase. The new law will raise the state’s minimum wage over two years. On January 1, 2014, the minimum wage will increase from $8.25 per hour to $8.70 per hour. A second increase, on January 1, 2015, will raise the minimum wage to $9.00 per hour. This law will also impact tip credit percentages for hotel and restaurant employees and bartenders.
If you have any questions regarding wage and hour law, please contact any of the attorneys at Royal LLP at (413) 586-2288.
As we usher in the new year, employers should be mindful of pending legislation that has the potential to impact their businesses.
For instance, one piece of legislation related to independent contractors potentially offers game-changing good news for employers. With the change of one word, this proposed legislation would make a previously insurmountable hurdle less challenging. The proposed bill would change the “and,” which currently requires satisfying an essentially impossible three prong test, to an “or,” which would allow categorizing an individual as an independent contractor even though s/he performs services that are within the company’s usual course of business. While there would still be a presumption of employment, it would be phenomenally easier to establish an independent contractor relationship.
Massachusetts independent contractor law is long overdue for a change. The proposed changes would allow employers to maintain independent contractor relationships where previously the burden was virtually impossible and mis-classification was a large risk with hefty penalties.
If you have any questions regarding classifying workers as independent contractors or employees, please contact any of the attorneys at Royal LLP at (413) 586-2288.
This time of year some employers thank their employees for all their hard work throughout the year with a holiday office party. It is important for employers to be aware of the possible issues associated with holiday parties. Here are some tips to avoid liability from hosting a holiday office party.
1) Beware of Alcohol. Alcohol is a common cause for concern for hosts of any social event. If you choose to serve alcohol at your holiday party, remember you are responsible for your guests’ consumption and make sure you take steps to avoid the dangers associated with consumption. Consider serving beer and wine instead of hard alcohol and offer plenty of non-alcoholic beverages. Limit the amount of alcohol each guest consumes, either with drink tickets or a cash bar. Also, prevent drinking on an empty stomach by serving food. Do not allow managers or supervisors to serve alcohol as they are viewed agents of the company. If a manager serves too much alcohol or serves alcohol to an inebriated person the company can be liable for the consequences. Additionally, consider offering taxis, buses, or overnight accommodations to prevent drunk driving. And make sure there is no underage drinking at your event.
2) Skip the mistletoe. Make sure your employees maintain the harassment-free environment expected in your workplace. Remind employees of all policies regarding sexual harassment before the party and make sure they realize these rules are still in place during the party. Also make certain supervisors and managers know they are “on duty” and still have obligations if they witness or hear of potential harassment.
3) Think about hosting a family event. Allowing employees to bring their families may improve their behavior. Often having partners or children around will encourage good behavior. But also keep in mind that not all of your employees are married. If you choose to host a bigger party, have employees invite “guests” not “spouses.”
4) Respect the views and limitations of all your workers. Make sure the party location is accessible to all employees, especially ones with disabilities, and ensure you host a holiday party instead of a Christmas party. Moreover make the party optional; not everyone celebrates holidays. Also, a mandatory party is a great way to open the door to the possibility of a worker’s compensation claim arising from someone getting hurt while doing the current dance craze. If the party is voluntary it will be harder to prove that the Macarena is related to the job duties.
5) Remind your employees that a holiday party is not Vegas. What happens at a holiday party does not stay at a holiday party. Normal rules about professionalism and harassment apply.
If you have any questions regarding social events in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.
From shopping to drawing to communicating it seems everything has gone electronic these days. Smoking is no different. While electronic cigarettes are not officially classified as cessation devices, they have quickly become the most popular product on the market to quit smoking. Employees know they are not allowed to smoke in the places they work, but can they e-smoke?
Although, under Massachusetts law, smoking is prohibited in the workplace, Massachusetts does not have any legislation addressing this question. However, that will likely soon change. Currently, there is a proposed bill in the Massachusetts State Senate Committee on Health Care Financing that would redefine tobacco products to be any product containing, made, or derived from tobacco or nicotine intended for human consumption. This same bill specifically states that this includes electronic cigarettes and cigars.
Although there is currently no Massachusetts law prohibiting e-cigarettes in the workplace, many towns, such as Northampton and Boston, have created their own local ordinances prohibiting the use of e-cigarettes in public places and workplaces.
In light of the rise of e-smoking, employers would be wise to consult with their employment counsel and consider including e-cigarettes in their smoking policies.
If you have any questions regarding e-cigarettes and the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.
On Tuesday, the Massachusetts Senate overwhelmingly voted (32-7) to raise the state’s minimum wage from $8 per hour to $11 per hour over three years. Under this bill, the minimum wage would increase in three steps: on July 1, 2014 it would increase to $9, on July 1, 2015 it would increase to $10, and on July 1, 2016 it would increase to $11. Thereafter, any increase would be tied to the rate of inflation. The Senate also voted to increase the minimum wage for tipped employees from $2.63 per hour to half the minimum wage. The bill now moves to the Massachusetts House of Representatives.
Jill, an employee, has a serious health condition and is out on leave under the Family Medical Leave Act (FMLA). As Jill nears the point of exhausting her 12 weeks of leave, she calls or emails her employer to say that she is still unable to return to work. Now what?
Employers who have been faced with this scenario know how challenging this can be. Even after exhausting 12 weeks of FMLA leave, Jill may be entitled to further leave. The very same serious health condition that allowed Jill to take FMLA leave may trigger her employer’s obligations under the Americans with Disabilities Act (ADA) to provide a reasonable accommodation, which may be additional leave from work. At a minimum, Jill’s statement that she is still unable to return to work triggers her employer’s obligation to engage in the interactive process (i.e. a conversation) with Jill to determine whether further leave, or any other accommodation, is necessary and if it is reasonable.
While FMLA leave is limited to 12 weeks, problematically, what is a reasonable amount of time for leave under the ADA is ambiguous. This determination needs to be made on a case-by-case basis, which makes the analysis more complicated. The good news for employers is that courts have consistently held that holding a job open for a disabled employee for an indefinite period of time is not a reasonable accommodation.
The ADA and the FMLA come into play in different situations; however, there are circumstances when they both are in play. As these circumstances can be complicated and challenging, Jill’s employer would be wise to consult with employment counsel before making any decisions about terminating Jill or changing any of the terms and conditions of her employment.
If you have any questions regarding your obligations under the ADA or the FMLA, please contact any of the attorneys at Royal LLP at (413) 586-2288.