Question: Do we pay the minimum wage of the state where our headquarters is located or the state an employee does the work?

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Answer: This comes up a lot with employers who have people working remotely or at a work site in a different state. The answer is simple: Employees should be paid the minimum wage for the state in which they work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should adhere to the law that is most beneficial to the employee.

Social media Posting

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Question:

We’ve become aware of a social media post by one of our employees in which he complained about his working hours and pay. The post was “liked” by several of his coworkers, one of whom commented “Preach!” and another of whom posted an angry face emoji. Can we discipline these employees for complaining about the company on social media?

Answer

I would recommend against disciplining the employees for these activities on social media as their speech is almost certainly protected under Section 7 of the National Labor Relations Act. Section 7 protects certain “concerted activity” by employees, which is activity done in concert, meaning more than one employee is involved. This kind of activity is protected if it’s related to their terms and conditions of employment (e.g., pay and scheduled hours).

In this case, because the employee complained about their pay and hours in a virtual space and other employees joined in – expressing their agreement through “likes,” emojis, and comments – the actions are clearly concerted activity and therefore protected.

I understand, however, that this sort of social media activity by employees can be frustrating. One way to reduce the likelihood that employees will air their grievances on social media is to establish a means for them to do so internally. Employee surveys, comment boxes (whether physical or online), stay interviews, and true “Open Door” policies are all ways to solicit this feedback. The key is to be willing to listen and act on the information you gather. If employees think taking their complaints directly to a manager will end in retaliation, or simply won’t lead to any change, they’re more likely to keep complaining on the internet.

Holiday Office Parties

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The Holidays are upon us and that means the season for Holiday Office Parties.   As an employer you want to take steps so it doesn’t end up like the Office Christmas Party starring Jason Bateman!

Alcohol can be a liability. Partygoers who overindulge could cause an accident at or after the party, or they might act in ways that violate your harassment policy.

You have more potential liability if the event is required instead of optional, as employers may be liable for employee misconduct and negligence when the employee is acting “in the course and scope of employment.” 

There are steps you can take to protect both yourself and your employees. Here are some practices you might consider.

  • Do not make the event mandatory and clearly communicate that attendance is optional. Make sure that managers and supervisors do not imply that failure to attend would count against the employee in any way. 
  • Avoid conducting any work-related activities, such as award presentations or company updates, at the event. To further support the non-work nature of the event, hold it off-site and outside of regular business hours and allow employees to bring a guest.
  • In advance of the event, set expectations around respectful behavior and encourage employees to drink responsibly. Remind employees that company policies, including harassment and other conduct policies, apply at the event.
  • Have a plan to ensure that no minors or visibly intoxicated attendees are served alcohol. If possible, hire professional servers (or hold the event at a staffed facility) who will, as part of their job, politely refuse to serve anyone who they perceive has had enough to drink.
  • Consider hosting a cash bar where employees purchase the alcohol. This will reduce the likelihood of a claim that the employer provided alcohol directly to employees. It will also reduce consumption.
  • Provide employees with a set number of drink tickets so that each attendee is limited in the number of alcoholic drinks they will be served (there are obvious limits to the usefulness of this tactic, but it may be somewhat helpful).
  • Avoid entertainment and event locations that may be potentially provocative, risqué, or offensive. These atmospheres, especially when combined with alcohol, may become conducive to sexual harassment.
  • Plan for how employees who have been drinking will get home. This may involve providing taxis or public transit options at no cost to the employees, arranging for group transportation, or encouraging employees to designate a driver at the beginning of the event. 
  • Provide ample food and non-alcoholic beverages, both for safety reasons and so non-drinkers know you’ve given them consideration.
  • Even if you don’t want or plan to provide taxi service, don’t think twice about calling and paying for one if an intoxicated employee has no way home other than driving themselves. This is not the time to teach employees a lesson, and from a cost-benefit point of view, it may be the best $30 the company ever spends.

While these steps will not eliminate all the risks, they can help reduce liability and help your employees celebrate the year safely and responsibly.

Is annual Sexual Harassment training required?

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Answer:    Although the EEOC does not require that employers conduct annual Sexual Harassment training; however, they do recommend it.    Take a look at the following stats and it becomes obvious why that would be a great idea.   The Weston Group can facilitate this training and also help with investigations in the work place.

 

  • The EEOC filed 50% more sexual harassment lawsuits in Fiscal Year 2018 than it did in Fiscal Year 2017.
  • Charges filed with the EEOC alleging sexual harassment increased by more than 12% from 2017.
  • For charges alleging harassment, reasonable cause findings increased to nearly 1,200 in 2018 compared to 970 in 2017. Successful conciliation’s (agreements reached without a lawsuit) were up to nearly 500 from 348 in 2017.
  • The EEOC recovered nearly 50% more for victims of sexual harassment through administrative enforcement and litigation in 2018; $70 million, up from $47.5 million in 2017.

How long should we keep employee timecards?

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Under the Fair Labor Standards Act, you are required to keep such records for at least three years from time of creation. However, we recommend that personnel records, including payroll records and timecards, be kept for seven years from the date the record is made or the date of termination, whichever is longer. That way, if you are subject to an IRS audit (which could go back seven years), you have this supporting documentation available upon request.

If you’re currently using a paper timekeeping system and you don’t want to store that much paper around the office for seven years, you can scan paper documents for electronic storage. Just make sure you have a reliable and secure method for storing this sensitive information and are able to access it as needed.

Return to Work

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Summary:

An employee injured off the job would like to return to work, but we’re concerned about her safety and her ability to do the job. How should we proceed? We’re a small employer and not subject to the Family and Medical Leave Act.

Question:   

What does an employer need to do if an employee is injured off the job and would like to return to work? The employer is concerned about her safety and ability to do the job? (This employer is under 50 employees so is not subject to Family and Medical Leave Act).

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