A network of friends chatting on a friends-only social media platform discussed ways to cope with troublesome workplace managers. One member of the group volunteered that she recently falsified travel forms to get more reimbursement than due because she felt the company “owed” her that for putting up with her manager’s crap. “Now we’re even,” she wrote. “That’s how I handled it.”
The woman’s manager later produced a printed copy of the chat exchange and handed it over to the HR Director demanding that she be fired. Instead, a more moderate approach was taken – she was ordered to correct her vouchers, the amount owed the company was repaid, and she was put on a disciplinary action. Soon afterward, the company was given notice that she was suing both the manager, personally, as well as the company for retaliation, given that the information obtained by the manager for the disciplinary action was illegally obtained and infringed on her protected rights.
Section 7 of the National Labor Relations Act pertains to, among other things, “protecting concerted activity” among employees discussing working conditions. In essence, the NLRB is aggressively enforcing employee rights, including the ability to rip their supervisors on social media without any disciplinary repercussions. This pertains to non-union as well as union employees. Business owners and managers are increasingly anxious to correctly interpret “protected behavior”, and so recently I invited two prominent attorneys from different firms to sit down together with me to discuss controversial employment laws, asking first for their response to the situation posed above.
“The correct response to this situation depends on how the information was gathered,” summarized attorney Robert Gregg, a partner with the firm Boardman & Clark, who has litigated a wide variety of employment cases over the past 30 years. He noted that if the chat transcript was given to the manager in printed form by a member inside the group, it likely could be addressed through formal disciplinary action. If, however, the manager “eavesdropped” or found the exchange through less direct methods, it would be considered within the scope of the employee’s expectation of protected activity. Retaliation or even expressed knowledge of the behavior then would be an infringement that could well result in liability.
As daunting as it is, to learn that employees can publically air personal gripes, their salaries and/or other company information on social media, attorney Troy Thompson shared his concern over an explosion in new suits being filed to sue managers personally, as well as companies, for poor workplace decisions. Thompson is a partner and practice group leader of the Labor and Employment Practice Group for Axley Brynelson, LLP. Most of the suits he’s now defending involve wage and hour disputes for such commonplace behaviors as emailing or calling an employee while they are on leave, etc. and then failing to pay overtime, or not understanding the difference between exempt and non-exempt employees and the gray area of flex-time and on-the-clock versus definitely off-the-clock.
If an employee can prove a pattern of the always-on-the-clock expectation, they may be eligible for back pay for the entire time a manager has acted as if they are “on the clock” when a rational person would think they had checked out for personal time off, or sick or family leave time. And did you know that if one’s allotted vacation time has been exhausted, and they are salaried, you cannot withhold pay for additional time not worked? And, if push came to shove, and they worked five minutes one day, even answering company emails, you cannot “charge” vacation?
Given these scenarios and others, and the vague and broad interpretations of policy and law (my own interpretations of the two attorney’s explanations may, in fact, perhaps be flawed), the three of us in concert strongly advise two courses of action to take immediately to dramatically cut company liability:
1. Train your managers.
Today it is imperative that a company of any size with managers (and that definition is being expanded in court to include team leaders) has “Duty of Care” and wage-and-hour training. A disregard for formally training managers is interpreted by state and federal courts to be a gross mistake for which an owner or executive team will be held accountable.
2. Publish, in your employee handbook, a “safe harbor clause” regarding payroll disputes.
You would note that, upon issuance of a payroll, bonus or commission check, any payment dispute should immediately be brought to the attention of a supervisor for investigation and/or clarification. This can significantly reduce your surprise factor liability when you discover a manager has a practice of, for example, emailing employees while on vacation. It allows you to stop the erroneous behavior at the time it is initially investigated.
As is always the case, state laws may be even more restrictive, and some cities have their own labor review judges, such as Madison, Wisconsin, where the Madison Equal Opportunities Commission takes a far more stringent view of protected employee rights than either federal or state courts. I’d strongly advise, regardless of company size or H.R. expertise, having an attorney in your area review your employee handbook and also conduct “Duty of Care” seminar for managers. What you don’t know will hurt you in court. Ignorance of changing employment laws is not defensible for executive management and in today’s arena, where managers can and are being successfully sued personally, this is no longer an option.
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