8/22/2017 Breaking? Bad Behavior in the Workplace: What Employers Need to Know John L. Knorek, Esq. Christine K. D. Belcaid, Esq . Social Media/E-mail Protected Use and Misuse On social media, an employee has a right to: Discuss workplace issues Criticize the employer Call her boss a “Nasty Mother F****er” and state “F**** his mother and his entire f****ing family!!!!!” ( NLRB v. Pier Sixty, LLC ) – see next slide for more An employee has a right to use company e-mail during non-working time for personal use, including union organizing Employees may not violate ethics, confidentiality, and harassment policies on company e-mail or social media Cursing and Offensive Speech Swearing under NLRA In the workplace, the Board applies the Atlantic Steel test On social media, the Board applies the totality of the circumstances test Sample conduct rule Cannot prohibit employees from being “disrespectful” to each other Cannot prohibit employees from using language that injures the company’s image or reputation Gossiping… Political speech – can only prohibit pure political speech 1
8/22/2017 Drugs and Alcohol ADA Overview: prohibits disability discrimination in the workplace, public entities/transportation, and public accommodations A disability is mental or physical impairment that substantially limits a major life activity; need record of such impairment or being regarded as having Alcoholism is disease and considered a disability that must be reasonably accommodated Obligation to accommodate disabled alcoholic workers v . the right to enforce policies that prohibit alcohol use while at work Current illegal drug use when the employer takes action based on such use is not protected disability (but former drug addicts are protected) Psychoactive substance use disorders resulting from current illegal drug use is not protected disability Now legal in 29 states Became legal in Hawaii in 2000 Regulated dispensary system began in 2016 Still illegal under federal law Safety Workers Comp: HRS 386-3(b) (No compensation shall be allowed for an injury incurred by an employee by the employee’s willful intention to injure oneself or by the employee’s intoxication. Presumption Clause HRS 386-85: presumption that the injury was not caused by the intoxication of the injured employee continued… Ostrowski v. Wasa Elec. Svcs., Inc. (Haw. Ct. App. 1998) Injury at after hours sidewalk drinking party not compensable Good Faith Discipline – HRS 386-3(c) (claim for mental stress resulting solely from disciplinary action taken in good faith not allowed) An applicant or employee who tests positive for marijuana use and discloses he has a medical marijuana card is likely not protected Illegal under federal law so the ADA does not offer any protection Hawaii employment law has not recognized use of med-mar as protected status EEOC has not taken a position re med-mar but will pursue claims for adverse actions due to underlying condition that med-mar treats HCRC? Questions? 2
8/22/2017 Tattoos/Piercings Dress & Appearance Policies Statistics 38% of millennials have tattoos and body piercings 60% of human resource professionals said that visible tattoos would have a negative impact chance of being hired; 74% said same about facial piercings Litigation of disputes over body art has risen re religious discrimination Cannot fail to hire or fire employee with tattoos or piercings if employee has them because of a bona fide religious belief and there is a reasonable accommodation Swarzentruber v. Gunite Corp. (N.D. Inc. 2000) EEOC v. Red Robin Gourmet Burgers Inc. (W.D. Wash. 2005) Body art may relate to other protected classes Tattoos/Piercings Dress & Appearance Policies continued… Discrimination based on personal appearance? Sam’s Club, Inc. v. Madison EEOC (Wis. App. 2003) (conservative image as viable defense) Dress and Appearance Policies Transgender issues Union buttons Blanket bans on body art should be avoided Apply policies consistently Train decision makers to be sensitive to body art’s significance not only to the wearer but also to observant co-workers King v. ST Aerospace Mobile Inc. (S.D. Ala. 2013) Discipline of Off Duty Conduct Arrest and court record – must be a conviction to rely on it With arrest, may be able to rely on independent facts related to job performance Questions for you … Can Beverly Boss fire these employees? Employee gets DUI arrest and one day later arrested for selling crystal meth Employee gets convicted for shoplifting at Neiman Marcus Employee goes to Charlotte to protest for removal of confederate statutes and Beverly does not agree with the employee’s political views Employee participates in union rally and gets convicted for punching police officer Employee wearing a Local 5 union t-shirt counter-protests the alt right/Nazis and trips one of them so they fall off a cliff. The employee gets arrested. (Beverly supports the alt right.) Nurse working in hospital cardiology department smokes cigarettes on breaks Employee’s ex-wife files TRO against him with evidence of domestic violence 3
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