Can I Require My Employees To Be Nonsmokers?

Non-Smoking Employees When I first started practicing law, I was asked by a fitness-conscious employer whether he could require his employees to quit smoking.

After some research into the Americans with Disabilities Act, I concluded, “no.” Basically, I concluded that smoking interferes with a major life activity — namely, breathing.

The senior lawyers whom I worked with disagreed.

They had some good points at least politically. Being a smoker is not a sympathetic status in California.

But a decade has passed and the ADA has broadened. And I’ve become more experienced as an employment lawyer, so I have thoughts on other laws that inform this situation.

So this video has my thoughts on whether you can make your employees be non-smoking.

Video Transcription:

Sometimes employers ask, “Can I require my employees to be nonsmokers?”
Some employment lawyers will say it’s acceptable because it’s not illegal to discriminate against smokers.

But you could be risking a disability discrimination claim because smoking is a physical addiction that may impair a major life activity, such as in situations when the person develops lung or throat disease.

In addition, employers do not have the right to inquire about an employee’s health and medical history, including at a hiring interview.

In requiring your employees to be nonsmokers, you may run the risk of violating these laws.

Employers do have the right to designate the workplace as smoke free.

However, employers do not have the right to dictate how employees spend their breaks, such as unpaid lunch breaks, when employees are free to leave the premises.

If you are worried about your employees’ health, try offering access to a smoking cessation program.

If you offer employee health insurance, many such programs are offered as part of the insurance plans and can be promoted by human resources.

Ask us how we can keep you safe from lawsuits with our Employer Protection Package by calling us at 800-449-8992 or emailing us at [email protected].

If My Employee Criticized My Business On Social Media, Can I Fire Her?

Employees and Social Media

You can’t always fire an employee who badmouths you online.

It’s a common reaction. An employee bad-mouths you and your business on Facebook. So you fire her.

Before the time of social media (and the internet), I was in college. I also worked a job after school where I had a boss who was a strange, quirky person.

I did a good job, but he was not exactly someone I enjoyed being around. I wasn’t the only one: my co-workers and I would laugh about some of his idiosyncrasies on our commute home on the ferry.

I’m pretty sure he overheard one day (or someone else who mutually knew us heard) because when we returned to work the next day, he was pretty upset with us. My co-worker was fired. I wasn’t, but it was clear that I was going to hit a dead-end soon.

So I moved on a little while later. But I always felt bad about it. I am not gossipy by nature, and I upset someone unintentionally. He was weird, but I didn’t mean to hurt his feelings.

Anyway, now I’m a boss and a business owner, and I try to hire people whom I enjoy working with. I would probably see a couple of teenagers making fun of me as annoying. I certainly wouldn’t feel like paying them my hard-earned profits in wages if they were ungrateful for it.

But if an employee is critical of your business online, you have to be careful. You cannot just fire them in certain circumstances. As always, it is situation-dependent. So watch the video below to get an idea of when you have to call a lawyer before sacking a snickering ingrate.

Video Transcription:

My employee posted on Facebook criticizing my business. Can I fire her?

Not unless you want to be on the losing side of a wrongful termination suit.

Many states, like California, have laws that prevent wrongful termination in violation of public policies.

Free speech and free association online are protected activities by public policy.

Also, the National Labor Relations Act prohibits employers from retaliating against employees for communicating with each other about the terms and conditions of their employment.

These protections extend to online communications as well.

Getting sued over something so petty is expensive.

Instead, why not use those words as constructive criticism to improve your business?

Then advertise it to social media and your workforce. Voila! Good PR and good will with your employees.

Ask us how we can keep you safe from lawsuits with our Employer Protection Package by calling us at 800-449-8992 or emailing us at [email protected].

Do Employers Have to Accommodate Employees Who Object to Serving Gay Customers Based on Religious Beliefs?

Graveyard

Are Christian Religious Beliefs and Practices Dead At Employment?

So I have a heavy topic for you today: Do employers have to accommodate employees who object to serving gay customers based on religious beliefs?

Pretend that you own a bakery. You have an employee who sincerely objects against gay marriage for religious reasons. Your employee refuses to bake a cake for a wedding that will be for a gay couple. Can you fire that employee for refusing to bake the cake? Or must you force the employee to bake the cake? Or must you allow the employee to abstain from baking the cake?

As a practical matter, I think the answer to this question depends in no small part on where you live. A jury in California may think about this in a remarkably different way than a jury in Kentucky.

What is a “reasonable accommodation” for a religious belief is context (and probably culturally) dependent. The recent Abercrombie & Fitch and Hobby Lobby decisions by the U.S. Supreme Court underscore how politically driven religious discrimination decisions can be.

Here’s the law. According to the Equal Employment Opportunity Commission (EEOC), “The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.”

Protected religious beliefs are not just for people who are part of a recognized, organized religion. Discrimination protection and accommodations also apply to anyone who has “sincerely held religious, ethical or moral beliefs.”

The anti-discrimination laws are meant to broadly protect people who have sincere religious beliefs and practices without requiring them to prove that they belong to a mainstream church.

Religious discrimination claims typically focus on an employer’s requirement to accommodate days or times for worship and modes of dress. For example, employers are more or less required to allow time off for religious holidays, barring extraordinary hardship.

Employees also cannot be forced to participate in employer-sanctioned religious ceremonies. So you can have a Christmas party, but you cannot force employees to celebrate Christmas at the party, for one common example.

Dress codes must accommodate religious dress, prohibitions and hairstyles. For example, Rastafarians must be permitted to keep their dreadlocks. And you cannot prohibit a Jew from wearing a yarmulke.

This is where Abercrombie & Fitch got into trouble recently. They were sued for not allowing female employees to wear head scarfs as that violated their dress policy. In its defense, Abercrombie & Fitch claimed that the head scarf was not stylish and did not compliment their wares, which they had their employees dress in to display. But this is not a good enough reason to prevent an employee from observing a sincere religious belief.

Title VII (and state laws that follow suit) also prevent employers from forcing employees to act in ways that are against their sincere religious, ethical or moral beliefs. So, for example, if it is against a restaurant server’s religion to dance, an employer cannot make her dance as part of her serving duties — even if it is just for a quick Happy Birthday song.

Employers do not have to accommodate religious practices when it causes “undue hardship,” however. The EEOC explains, “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

So this is where context, culture and a jury would come in. Most accommodations decrease workplace efficiency, so what is reasonable and what is undue hardship?

Let’s returning to our reluctant cake baker. Would it be a hardship for the employer to have a different, non-objecting employee bake the cake? Perhaps it depends on staffing and who is available. Perhaps this employee is the only employee capable of making fondant. Or perhaps there are ten other bakers who could easily do it.

If it is possible for the employer to not require the employee to do something against their sincerely held moral beliefs, it may be better to put a different worker on the task.

If the employer cannot, he may be justified in forcing the employee to comply, on pain of termination.

I am certain that a typical California jury would be unsympathetic to the employee in this situation — although I can conceive of a jury make up in some places in California where this would not be certain. I would also be less certain in Missouri, where feelings about gay marriage are more varied. So this is why I would say that the answer of what is reasonable and required, versus what is “undue hardship” somewhat depends on where you are at in the country.

An even trickier question is whether accommodating the employee’s beliefs results in an actionable discrimination against the customer, creating liability for the employer. If the employee forces the business to get sued for discrimination by a customer, that is surely an undue hardship.

For example, what happens if the objecting baker tells the customer that they refuse to bake the cake? Or worse, what if the employee begins proselytizing to the customer in a way that becomes offensive (or even considered “hate speech”)? Will the customer sue the bakery for the employee’s behavior?

In most situations where an employee creates a liability for the employer, you can expect the employee to get fired legally. For instance, here’s a true story: a big retailer was told by a customer that she did not want a black delivery driver to deliver her purchase. The manager acquiesced and went to send a white delivery driver. But unfortunately, he told both the white and black drivers why he made the change. Both employees refused to go along and complained to HR about the manager’s decision. The manager was fired and the customer’s order cancelled. Because that manager’s decision put the company at risk for a lawsuit by two employees, the firing was justified.

When it comes to what is required to accommodate religious employees, there is no concrete answer for employers. And with the Supreme Court’s decision in Obergefell, there will be a rise in “conscientious objectors” within the wedding industry.

My advice to employers is to try and accommodate your religious employees as much as possible, without putting your business at risk by inviting suits from customers or making it impossible to operate.

Is It Wrongful Termination If I Fire The Accused Employee?

Wrongful Termination Human beings are hard-wired to believe in fairness and justice. Psychological studies show that all but the most psychopathic of people feel a strong feeling of disgust when they witness something “unfair” or “unjust.”

That’s why this piece of advice is not very intuitive to most employers (and employees). It is not illegal to fire someone unfairly.

What does that mean? Well, it means you can fire someone for any reason (right or wrong) or no reason at all, so long as it is not an illegal discrimination. For example, you can fire someone because you think their laugh is annoying even if they are good at their job. But you can’t fire someone for Tourette’s Syndrome because you think their tick is annoying because that is a disability discrimination.

This sometimes comes up when one employee accuses another employee of bad behavior. For example, say a woman accuses a man of sexual harassment. The man denies it. At this point, the employer must make sure that the woman is safe and not being forced to endure unwanted harassment and touching.

The employer is not required to determine whether the man is innocent before deciding to fire him. The employer does not need to pretend it is NCIS before taking action to protect the female (and itself).

That means that sometimes an innocent person will get fired. Yes, it’s unfair. That does not make it illegal.

This video explains more.

 

Video Transcription:

One employee has accused another of sexual harassment. Is it wrongful termination if I fire the accused employee and the allegations later turn out to be false?

No. In fact, it’s probably safer for you to remove the alleged harasser.

It may seem unfair for you to fire someone without knowing for sure that the allegations are true.

But the employer is not required to find out the truth in an investigation.

Employers are not investigative detectives and shouldn’t try to act like one.

When employment is “at will,” you can terminate an employee for any reason without repercussion, even if allegations are later shown to be false.

But when an employee levels an accusation of sexual harassment and the employer does nothing, then you may become liable for a “hostile work environment” for not protecting the harassed employee.

Rather than expose yourself to such liability, it may be better to terminate the accused employee.

You must use good judgment in these sensitive situations and there is not always one right answer.

Ask us how we can keep you safe from lawsuits with our Employer Protection Package. For a consultation call 800-449-8992 or email us at [email protected].

What is the Status on Firing Employees for Medical Marijuana Use?

marijuanaThe Current State of Medical Marijuana Use

As of December 2014, states where medical marijuana is legal no longer have to worry about federal drug agents raiding retail operations. Hidden within a 1000+ page spending measure, Congress essentially approved lifting the federal ban on medical marijuana, stating that federal agents were banned from such raids.

The provision has been enacted law roughly one year after the Obama administration directed federal prosecutors  to stop enforcing drug laws that contradict state marijuana policies. Since this directive, federal agents have been limited to targeting medical marijuana retailers and growers who are violating other federal laws, such as money laundering or fraud.

The District of Columbia, along with 32 states have legalized the use of medical marijuana and marijuana related substances. While these laws began to pass in states as early as the 1990’s, it has long remained illegal under Federal Law until now.

While these 32 state laws vary in scope and definition, they share many common features. For example, most states require patients who want access to medical marijuana to apply and be approved for a registration or ID card.

Requirements vary in each state, however generally these cards require for a patient to seek approval from a doctor. Once a patient has received doctor approval and has received their ID card, they can purchase and even grow personal batches of medical marijuana. ID Cards are usually granted by a government agency and require annual renewal.

It does not appear that the federal government currently intends to regulate medical marijuana. It has left any such regulations and procedures up to each state for the meantime. However, the federal government’s change in stance on prosecuting medical marijuana is signifying a larger change in the tide of acceptance of medical marijuana. However, not much guidance has been given to businesses and employers on what to do with the current rise in medical marijuana usage.

Given these new developments, what should an employer know about terminating employees for medical marijuana usage?

Some states, although authorizing termination or discipline for marijuana use or intoxication, prohibit discrimination against individuals on the basis of their being medical marijuana registration cardholders. However, many state laws have created exemptions for employers to restrict any use of marijuana in the workplace or premises. In additions, these laws also usually prohibit an employee from being intoxicated on the job, whether or not the usage was within work hours or on the premises. Some jurisdictions, such as California, have case law supporting an employer’s right to terminate an employee who tests positive for marijuana.

However, it still remains unclear if an employer can terminate an employee for use of medical marijuana with a valid prescription during non-employment hours, with the potential to create a wrongful termination lawsuit. Currently, Arizona, Minnesota and Delaware have enacted laws that prevent employers from firing an employee for a positive marijuana drug test if the employee holds a valid medical marijuana card. However, other western states like California, Oregon, Montana and Washington have enacted laws stating that employers are allowed to enforce a zero-tolerance drug  policy at the workplace regardless of whether the state currently stands on medical and recreational marijuana.

Federal laws further complicate matters in this area. For example, under the Americans With Disabilities Act (ADA), illegal drug use is not generally protected for accommodation as its own illness.  But as a legally-prescribed painkiller that is legal under state but not federal law, the protection of workers using medical marijuana is not at all a given.  Many state courts over the last three years, including courts in California, have ruled that employers do not need to accommodate workers who use marijuana medically. Moreover, any employees of the federal government will fall under federal law, not their own states with regards to medical marijuana. Thus, even an employee who is a valid medical marijuana user in Arizona may still lose their job pursuant to federal law.

That being said, I think that the law is going to change as medical marijuana laws gain traction across the country.  However, employers in California, as of right now, you can feel reasonably safe terminating for medical marijuana use.  However, I suggest that you begin thinking about how you might modify your policies to account for a possible change in the law and whether you really could accommodate medical marijuana use.  If you have more pressing things to do than worry about a hypothetical future change in the law, then sign up for my newsletter, and I’ll let you know when the time comes to revisit this issue. Also please contact our employment law attorneys for a consultation at (800) 449-8992 or contact us online.

What do you need to know about Equal Pay laws?

woman ready to take notesWith the current surge of women’s rights issues in the news, equal pay laws have been receiving a lot of attention. As an employer, you should be aware of both state and federal laws governing this area.

For example, California Labor Code 1197.5 prohibits the payment of wages at rates less than the rates paid to employees of the opposite sex in the same establishment if the job requires equal skill, effort, responsibility, and similar working conditions. Different pay rates may be allowed where they arise under a merit or seniority system, a system which measures earnings by quantity or quality of production, or a differential based on any factor other than sex (or else be faced with a sex discrimination lawsuit). The Federal Equal Pay Act is nearly identical to the California Statute.

Due to these laws, lawsuits regarding an employer’s failure to enact equal pay laws have steadily been on the rise. Typically in these cases, the focus is on the work product and qualifications of the employee filing the lawsuit versus the employee/gender of employees who are receiving better pay. The greater the disparity in pay, the more justification the employer will have to prove for such a disparity.

Judgments for these cases typically include not only the recovery of any wages lost  but also liquidated damages. A party bringing such a suit may also recover attorney’s fees in a private action to enforce this section.

As a result of these laws and the recent Lilly Ledbetter Fair Pay Act which essentially resets the statute of limitations to file a discrimination lawsuit with the receipt of each new paycheck, class actions lawsuits are steadily on the rise. These can be very painful suits to defend. They are long, time consuming, comprised of multiple former employees and a lot of work. The fallout of such a lawsuit can be both devastating to you personally and to you business.

At the risk of being redundant, employers should audit their workforce!  I’m going to keep saying it until they start doing it.  It’s the best way to protect and defend against these types of suits.  Remember that these lawsuits start with the big companies and slowly work their way down to small companies, so you aren’t safe simply by virtue of the fact that you have 20 employees instead of 20,000.  Many of my clients know this by personal experience.

If you want to know whether you are at risk for an equal pay lawsuit (or any other lawsuit), sign up today for a free Business and Employment Law Planning Session, or contact our employment law attorneys at (800) 449-8992 for a consultation.