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Jason Collins: Who Will Come Out Next?


I am pleased to post my most recent blog for SHRM's WeKnowNext:  http://www.weknownext.com/blog/jason-collins-who-will-come-out-next.  This blog focuses on how to respond if and when an employee comes out to you.

 

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.

Employers in the Crossfire


From SHRM's HRMagazine

Employers in the Crossfire 

Federal and state gun laws have ramifications for employees and employers alike. 
6/1/2013  By Jonathan A. Segal 
 
 

Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football.

But this isn’t about political wrangling around gun control; it’s about guns in places like schools and worksites. In addition to school shootings, there have been many fatalities caused by people turning their guns on colleagues at work.

According to the U.S. Bureau of Labor Statistics, about 78 percent of the approximately 518 workplace homicides in 2011 were gun-related.

In just the last few months of 2012, there were several tragic examples:

In September, a Minneapolis man who had been discharged opened fire in the company break room, killing five former co-workers before committing suicide.

In November, a man who was about halfway through his shift at a Fresno, Calif., meat processing plant pulled out a handgun and shot four co-workers, killing two before taking his own life.

Eleven days after that incident, a worker at a food producer in Indianapolis shot and killed a co-worker and then himself.

These are not the only examples of workplace homicides carried out with guns in 2012.

Rights vs. Risks

A comprehensive plan to prevent and respond to workplace violence goes beyond a rule on firearms in the workplace, but such a rule remains a critical component.

Of course, most gun owners would never consider using their weapons unlawfully, let alone do so. Those individuals should not be maligned. At the same time, we cannot ignore the inherent risks that firearms pose to employees in the workplace.

Think about what happens when you terminate an employee. He or she may be angry. If his or her temper is hot enough, a cool-down period may be needed to prevent a violent reaction. Access to a firearm in the company parking lot could cut short that cool-down period.

But can employers ban firearms in their workplaces and in motor vehicles in their parking lots? What if an employee has a license to carry the firearm?

Employees 21 and older have the right to drink, but employers still can ban alcohol from the workplace. Are firearms any different?

Some say yes, citing the Second Amendment. However, the scope of the protections it guarantees is not clear. Yet, the Second Amendment clearly applies only to restrictions imposed by the government—not private-sector employers.

States’ Statutory Rights

While private-sector employees have no constitutional right to bring weapons to work, some may have statutory rights. Twenty states have passed laws that protect, to varying degrees, the rights of employees and others to carry firearms on an employer’s premises. Tennessee’s legislation takes effect in July. In most cases, an employee’s right to bring a firearm onto an employer’s premises is limited to keeping the weapon in his or her motor vehicle.

Texas Labor Code Section 52.061 serves as a good example of these laws. It states:

“No employer may prohibit an employee who holds a license to carry a concealed handgun, who other­wise lawfully possesses a firearm, or who lawfully possesses ammunition, from transporting or storing a firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.”

There has been litigation about whether laws that allow employees to possess weapons on an employer’s property are inconsistent with, and therefore preempted by, the U.S. Occupational Safety and Health Act. The act’s general duty clause provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Employers won one case at the district court level, when the court held that the state law was pre-empted by the general duty clause. But this decision was overruled, and employers have yet to win another case.

In 2009, in Ramsey Winch Inc. v. Henry (555 F.3d 1199), the 10th U.S. Circuit Court of Appeals ruled in 2009 that the general duty clause does not pre-empt state law, disallowing the maintenance or enforcement of policies prohibiting the transportation or storage of firearms in vehicles on private property. The circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

Also, in a 2008 case, Florida Retail Ass’n Inc. v. Att’y Gen. (576 F. Supp. 2d 1281), a Florida district court held that the general duty clause does not pre-empt Florida’s guns-at-work law. The state law allows employees with concealed-weapons permits to keep guns locked in their vehicles while at work.

As of April, legislatures in at least 12 additional states were considering laws that would restrict the right of employers to prohibit employees and others from possessing firearms on their property and in their parking lots.

Pennsylvania legislators were pondering one of the most restrictive measures. House Bill 448 would allow an employee to possess a firearm locked in or “locked to” a private motor vehicle. The plain language would suggest that an employee could have his or her hunting rifle in plain view.

If enacted, to whom would this bill potentially pose the greatest risk? Hint: Which department is involved in most terminations?

Again, most hunters are law-abiding individuals. But if a gun is visible, anyone with a lock cracker can get ahold of and use the gun. As noted at the outset, this article is not about a political issue; it is about a workplace issue. However, political issues turn into legal ones when legislation is enacted, so employers need to be aware of gun laws in states in which they operate.

HR professionals may want to speak up when gun-related issues arise in their state legislature. After all, those in HR are involved in more terminations than other managers.

The Society for Human Resource Management’s position is this:

SHRM opposes any restrictions on the right of employers to determine their own worksite policies regarding weapons on company property (including parking lots). SHRM’s position in no way involves the broader issues of gun control or gun ownership.

Assessing Your Policy

With this background, employers are well-advised to look at their rules on weapons.


Ask these questions:

How do you define weapons? Yes, the definition should include guns, but it should not be so limited. A machete has no place in the workplace, either. While we cannot ignore guns, to focus solely on them creates significant risk of violence.


How do you define workplace? If you intend the definition to cover motor vehicles on your premises, make that clear. In this regard, consider what constitutes your premises. If you lease offices or parking lots, for example, you may control them. The answer may be different if the garage is open to the public. Of course, check state law to make sure you don’t overreach and end up with a claim under the laws in one of the states in which gun rights trump property rights.


If you are going to allow firearms in employees’ vehicles, what steps will you take to minimize risks? Will you require that they be locked in the trunk? That ammunition be kept separately in the vehicle and hidden from view, such as in the glove compartment? These are real issues for workplaces in which large numbers of employees leave work to go hunting, so an absolute ban may not be realistic, even if it is lawful. Focusing on these details may literally have life-or-death consequences.

If you have an exception for security guards, what steps are you taking to ensure that they are hired or engaged only after being screened with appropriate background checks? What guidelines and supervision do you have in place to minimize the risk of guards improperly using the weapons you may allow them to possess? Of course, be careful not to back into a discrimination claim. U.S. Equal Employment Opportunity Commission officials are looking closely at employers’ use of background checks.

This article is not about the right to bear arms. I leave it to the courts to determine that right.

This article is about the right of employees to have safe workplaces. Protecting that right is the responsibility of employers. 

Jonathan A. Segal is a contributing editor of HR Magazine and a partner with Duane Morris LLP in Philadelphia

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP 

Wellness Programs: Gaps In Guidance


Last week, the federal DOL issued HIPAA regulations on wellness programs setting forth both restrictions and requirements.  The regulations were issued pursuant to the Affordable Care Act, aka as Obamacare.

 

 

But the Affordable Care Act is not the only law that employers must consider.  There are many other federal and state laws that may affect wellness programs, too.

 

 

For example only, the ADA will apply to many wellness programs.  The question is how.

 

 

The EEOC has stated that employers may conduct medical examinations and activities as part of a wellness program so long as the program is “voluntary.” The program is voluntary “so long as the employer neither requires participation nor penalizes employees who do not participate.”

 

 

However, the  EEOC has not provided guidance on what kind of financial incentives are permissible in order for the participation to be considered voluntary under the ADA.  For example only, the EEOC has not yet provided any guidance on whether there is any legal distinction between a financial incentive (premium discount) and a financial penalty (higher premium), even though both are functionally the same.  Nor has the EEOC provided any guidance on how steep the discount or higher premium may be and the program still be deemed voluntary.

 

 

Even if the wellness program is not voluntary, under the ADA, there is a bona fide benefit safe harbor.  At least one appellate court has held that the safe harbor applied to the wellness program at issue.  Seff v Broward County.

 

 

The EEOC has issued no guidance on its position as to the potential application of the safe harbor to wellness programs that may be deemed involuntary. 

 

 

 In a public meeting last month on wellness programs, the EEOC failed to provide any guidance on the ADA issues addressed above. 

 

 

In this regard, it should be noted that the ADA is not the only federal anti-discrimination law that applies to wellness programs.  For example only, GINA does, too.  The EEOC has provided some guidance in this area.

 

 

To make matters even more complicated, there are state laws that must be considered, too.  For example, not every state non-discrimination law has a safe harbor provision that is the same as or similar to the ADA

 

 

So proceed cautiously in this area.  The DOL regulations are a good starting point but should not be seen as a stopping point. There are additional steps that employers can take to minimize (not eliminate) their legal risks in this area. We are happy to assist.

 

 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship

 

 

 
 
 
 

Boys' Club Next Door


I am please to post an article I wrote for Fortune on gender discrimination in general and Boys' Clubs in particular: http://management.fortune.cnn.com/2013/05/24/gender-discrimination-law-suits/

 
 
 
 

Fish Don't Know They Swim in Water


It is with pleasure that I share with you this blog on corporate culture I wrote for SHRM's We Know Next. http://weknownext.com/blog/fish-dont-know-they-swim-in-water

Thank you,

Jonathan

 
 
 
 

Holocaust Days of Remembrance


The United States Congress created the Days of  Remembrance as our nation’s annual commemoration of the Holocaust.  This year, the Days of  Remembrance begin on Monday April 8, 2013.

During the week, may each of us remember, even if  for only a moment, the millions who were murdered (including, but not limited to, 6 million Jews) by the Nazi Regime and their willing collaborators.  As a result of the Holocaust,  approximately 2 out of 3 European Jews were murdered.

May we also remember the countless "Righteous Gentiles" who risked their own lives to save those who were targeted for genocide simply because of who they were. 

On a personal note, my family tree is overwhelmed with tombstones for Holocaust victims.  At the same time, we have some survivors.  For example, one aunt survived only because she was hidden by the the courageous inhabitants of a Catholic Church in Poland.

Each year, I try to read at the Holocaust Museum in DC a few of the names of the many millions murdered.  I will do so this afternoon as my way to remember and to respect those who were taken from us.  

Never should these people be forgotten. Never again should this happen to any people. 

 
 
 
 

Friends Don't Let Friends Use HR-Ese


I am pleased to post a blog I wrote for SHRM's We Know Next on using plain speak in the workplace. It can be found here.

Thank you,

Jonathan

 
 
 
 

Boys Clubs Go Viral: TweetChat with SHRM's We Know Next


Please join me, @Jonathan_HR_Law for a #NEXTCHAT with SHRM's @weknownext on "Boys Clubs" in the workplace! March 27 3:00 p.m. - 4:00 p.m.

Hope to "see" you there!

 

 
 
 
 

Twitter Coverage of EEOC Commissioners' "Chat" At the SHRM Employment Law and Legislative Conference


I am pleased to post another blog I wrote this month for SHRM's WeKnowNext.  The blog includes tweets I wrote, during and after, the chat between Commissionrs Feldblum and Lupnic at the SHRM Employment Law and Legislative Confenence in D.C.  They took the "dis" out of DC "disfunction.
 

 http://www.weknownext.com/blog/eeoc-comissioners-chat-at-the-shrm-legislative-conference

 

 
 
 
 

What's Behind The Surge in Disability Claims?


I am pleased to post my most recent article for Fortune/CNN on the surge in ADA claims:  http://management.fortune.cnn.com/2013/03/06/disability-workers-united-states/

Thank you.

Jonathan

 

 
 
 
 

Downton Abbey, Inc


What can we learn from Downton Abbey in terms of workplaces? It is with pleasure that I post the blog I wrote this month for SHRM's WeKnowNext: http://www.weknownext.com/blog/downton-abbey-inc
 
 
 
 

Boys Just Want To Have Fun


It is with gratitute to SHRM's HRMagazine for publishing my most recent article on Boys Clubs: 

 

 Boys Just Want to Have Fun 

Vol. 58 No. 3 
Shut down boys’ clubs.  

3/1/2013  By Jonathan Segal 
 
 

The term “boys’ club” refers to the unofficial and often impenetrable group of men—usually white men—in an organization or department who have effective control and power. Being part of or having access to the club often is critical to making the right connections to advance within the organization.

Because these groups often form covertly, and sometimes as a result of unconscious rather than conscious bias, the membership does not always correspond to the organizational chart. Moreover, top executives often deny the existence of an exclusionary club. I have never seen a “formal” boys’ club, yet I would be foolish to deny that it exists at some organizations.

When it comes to determining the scope of a boys’ club, official positions may be relevant but not determinative. I have seen organizations with gender equity at the top, but the real power is held by men. Conversely, I have also seen organizational charts where most power positions are held by those with Y chromosomes, but I didn’t think there was any gender bias in general or a boys’ club in particular.

Why are these clubs present in some companies? And how do we eradicate them?

I do not pretend to have all the answers, but I do have some thoughts to help HR professionals move toward equal employment opportunity (EEO).

Bias in Your Backyard

Sex discrimination, including gender stereotyping, is illegal. More than that, it is bad business.

Ensuring gender equality is a business imperative in terms of attracting, retaining and advancing talent that goes beyond the legal imperative. We exclude women or any other group at our peril.

You may be thinking, “Of course. This is hardly news.”

Most executives outside of HR would agree. They understand the business drivers mandating diversity and inclusion.

Still, most do not see the bias in their backyards. Don’t assume that everyone understands the business costs of bias.

Why Boys’ Clubs Exist

There are many reasons an organization or a silo within may have a boys’ club.

The first is what the U.S. Equal Employment Opportunity Commission calls “like-me” bias: the human tendency to be more comfortable with those who are like you.

“I don’t discriminate,” says the executive. But he socializes with, plays golf with and feels more comfortable among those who look like him.

Does this risk exist in an organization where women are in control? You bet. Executives in these organizations face the same risk of like-me bias to the detriment of those with Y chromosomes.

Boys’ clubs do not justify girls’ clubs, legally or morally. Power clubs that exclude men are also bad business.

Like-me bias is usually the product of unconscious affinity toward similarity. Sometimes, however, conscious considerations contribute to a boys’ club.

These considerations may be well-intentioned. We live in a painfully litigious world. One misstatement may later be used as evidence of bias, even if the statement was made out of awkwardness as opposed to malice.

In the “gotcha” world of employment litigation, leaders appropriately want to avoid saying the wrong thing. They sometimes inappropriately avoid people they fear may perceive their words in a negative light. But you can’t avoid bias claims by avoiding those who are different from you. That’s called bias.

There is more room for human error in a diverse group. While that may explain, in part, why some clubs exist, it does not justify their existence.

In addition, members of boys’ clubs often justify their activities as being primarily social. Work is hard and seems to be getting harder. In the 1970s, Spiral Starecase sang, “I love you more today than yesterday but not as much as tomorrow.” The theme song for today’s business world could be “I expect more from you today than yesterday but not as much as tomorrow.” So, when people work hard, they may want to play hard, too.

In mixed-gender groups, the sexist “joke” is more likely to be costly, and the appropriateness of going to strip clubs is more likely to be challenged.

So we move from the ’70s to the ’80s, when Cyndi Lauper sang “Girls Just Want to Have Fun.” Today, the boys who just want to have fun fear that the price tag may be too high if women are included in certain activities, so some don’t include them.

Dismantle Boys’ Clubs

Just so there is no confusion: Even in male groups, the sexist jokes are not funny and the strip clubs are offensive. There are many men—I am one of them—who say so, but fewer men than women will bring claims based on them.

There is no magic bullet to dismantling these clubs, but here are 10 recommendations for your consideration:

  • Educate executives about the potential for the existence of a boys’ club and the business costs of such a group. You cannot stress enough the costs of excluding women from the inner circle. It is not only about the talent women bring but about the fact that men who operate in diverse groups tend to be better employees.
  • Make sure your job descriptions for leadership positions do not inadvertently exclude women. Don’t include a minimum number of years of experience that is not necessary for the position and that women historically have been denied the opportunity to achieve. For example, for an operations position, if the number of years of experience required is unnecessarily high, it may perpetuate bias engaged in by prior employers. Do you really need someone with 15 years of experience? Is 10 enough? At least ask the question.
  • Open the promotion process so that when senior positions become available, credentials, not connections, matter. Leadership roles too often are willed to the next in line, and that person often looks like his predecessor in terms of demographics. So, as a general rule, post the opening.
  • Give a “plus” to differences in experiences, perspectives and leadership styles as part of decision-making. When we focus on these aspects of diversity, we increase EEO diversity. However, do not give gender a plus. Under Title VII of the Civil Rights Act of 1964, employers probably cannot consider gender a plus unless there is a remedial purpose. For private-sector employers, that means either an admission of prior discrimination or proof of a “manifest imbalance” in traditionally segregated positions. For public-sector employers, only an admission of previous discrimination will do.
  • Consider affinity groups that focus on gender issues so that women can learn from one another and develop career strategies. But be careful: As a practical matter, an affinity group should be a launching pad, not a landing pad. As a legal matter, if you support an affinity group for women, do you have to do the same for men? Here comes the annoying lawyerism: “It depends.” If the affinity group is supported by the employer so that it would be considered a term or condition of employment, employers cannot discriminate based on gender. The same would be true of race. Develop EEO-neutral criteria for affinity groups, and allow any groups to argue that they meet them. For example, any group that wants employer support should have to present the business case for the need and a plan for how the group will expand the business. In female-dominated professions, a male affinity group may meet the criteria.
  • Develop a formal mentoring program. In the absence of a formal program, like-me mentoring often benefits people who are like those at the top. Be careful that any formal mentoring program does not do the same. Many formal programs gender-match. If people at the top are predominantly male, doesn’t that mean that men will benefit more? Moreover, isn’t it misguided to suggest that men cannot mentor women or vice versa? And doesn’t gender-matching, when it comes to mentoring, deprive men of power the opportunity to learn of barriers that they did not know existed? When there is cross-gender mentoring, mentors often learn as much as they impart.
  • Pay attention to micro-inequities that collectively may result in macro-exclusions. Leaders need to think about with whom they have lunch, go for drinks, attend sporting events and connect through social networking. We all know it is in the context of these informal interactions that relationships are strengthened and information is shared. These informal interactions may be the visible and discoverable manifestations of a boys’ club.
  • Diversify organizational social events so that many interests are covered. Mix things up. Of course, not all women like to shop for shoes, and some men do. But I suspect more women do than men. (I once was on a panel on gender bias in the legal profession, and the only issue on which there was a good-natured gender divide was shoes. I still think two pairs is enough: one formal and one informal.) In any event, can you imagine if your only company-sponsored social events involved shoe shopping? Are male-dominated sporting events different? By offering diverse activities, you will maximize inclusion and have some fun, too. How do you know what might be of interest? Ask.
  • Focus on alcohol. Why? Many boys’ clubs have as charter members Jack Daniels, Jim Beam and Old Grand-Dad. Drinking buddies and membership in boys’ clubs often overlap. That does not mean women don’t drink socially or even excessively. But often the boys’ clubhouse is a neighborhood bar.
  • Don’t deceive yourself into believing that only cave dwellers engage in sexual harassment. While we have made progress as a society, sexual harassment is alive and well. Sexist jokes, verbal innuendo, visits to strip clubs—sometimes these missteps result in a claim. Just as bad, they effectively push women away.

Some women will stay with your organization but opt out of the social events where inappropriate behaviors occur. Marginalized, these employees don’t realize their full potential. Worse, they may take their talent and outside relationships to a more inclusive employer. Inappropriate conduct may not be severe or pervasive enough to create a hostile work environment, but it may create a boys’ club when women choose not to go along to get along, a choice no one should ever have to make.

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

 
 
 
 

Common Pitfalls: The Devil Is In The Details; Regulatory Compliance


Here are 10 common or potential regulatory hurdles that may confound employers:

1. Under the Fair Labor Standards Act (FLSA), a meal period of less than 30 consecutive and uninterrupted minutes is work time unless "special conditions" exist. Be prepared to litigate hard to establish those special conditions. Bon appetit.

2. What constitutes "exercise of discretion and independent judgment" for the administrative exemption? The FLSA definition is as clearas mud.

3. The FLSA does not permit docking pay for exempt employees who are ready, willing and able to work when the employer shuts down, for example, for holidays or weather emergencies. Don't jeopardize exemptstatus by treating these employees like nonexempts.

4. Expect more age discrimination claims as some Baby Boomers postpone retirement and others re-enter the workforce.

5. Under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission all but suggests that employers should assume that an employee has a disability, ensure nondiscrimination andmake accommodations where reasonable. Expect the EEOC--and probably many courts--to spend less time on threshold coverage questions.

6. When it comes to making hiring decisions based on criminal records, the EEOC prefers that employers make individual assessments. Theagency's aggressive position will be tested in the courts.

7. Family and Medical Leave Act regulations allow employees to take extraordinarily short periods of leave. Unscheduled intermittent leave continues to flummox employers, but call-in policies can help.

8. Employers cross the border into problematic territory for not purging 1-9 forms when permitted, if such forms are not in compliance.

9. The Uniformed Services Employment and Reemployment Rights Act requires employers to work to re-employ service members. They have to track factors from compensation to promotions employees would have received had they not been on military leave.

10. Proposed rules for the Labor-Management Reporting and Disclosure Act would make those who advise employers "indirect persuaders." That means an employer might have to report that a lawyer gives adviceon how to stay union-free. This arguably is a government intrusion into attorney-client privilege.

The author, a contributing editor of HR Magazine, is a partner with Duane Morris, a Philadelphia. based law firm. 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

 
 
 
 

A Valentine's Day Warning


As oiginally published by SHRM's We Know Next: http://www.weknownext.com/blog/youre-the-love-of-my-life

 

 

 
 
 
 

PA SHRM State Council Legislative and Legal Conference (April 19)


Register today for PA State Councel of SHRM's Legislative & Legal Conference.

 

 
 
 
 
 

Jonathan Segal

Views on wage/hour compliance; social media policies; harassment prevention; diversity issues; healthcare reform; performance management;
ADA, FMLA and other compliance issues; violence/substance abuse; hiring, recruiting, and workplace privacy.

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© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.