8/22/2017 Breaking? Bad Behavior in the Workplace: What Employers - - PDF document

8/22/2017 1

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

8/22/2017 2

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?

8/22/2017 3

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