Friday, October 17, 2008

Politics In The Workplace

As Election Day approaches, politics inevitably seeps into the workplace. What if employees become disruptive, argumentative, annoying, or just plain unproductive on account of politics in the workplace? Does an employer have the right to limit political activities of employees in the workplace?

The answer is: “It depends.” In the private sector, in some jurisdictions, it is unlawful for employers to prevent employees from engaging in political activities or affiliations. But that does not mean employees are free to engage in any kind political activity on the clock, in the workplace.

In California, for example, Labor Code Section 1101 makes it unlawful for an employer to make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.  Labor Code Section 1102 makes it unlawful to coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

Retaliating against, or terminating an employee for engaging in political activity may give rise to wrongful termination or retaliation claims. For example, in one California case, a newspaper editor who was fired for publicly criticizing public official outside the workplace was held to have valid wrongful termination claim.

But California law does not prohibit employers from limiting political activity inside the workplace while on the clock. After all, employees are paid to do their job, and typically political activity or discussions are not part of the job description. The two employees arguing about Obama and McCain instead of answering phones, taking sales orders, or doing whatever they are paid to do can be told to knock it off and get back to work.  Neutral policies limiting political campaigning or other political activity in the workplace may be necessary in order to keep employees productive. Policies or practices that are not neutral (for example, a conduct code giving preference to one political view over another) should be avoided. Moreover, policies that limit union activity (which is in some sense political) may run afoul of state and federal law.

Please let me know what your experiences with politics in the workplace have been. You can email me by clicking my name below.

Submitted by:

Barker Olmsted & Barnier, APLC

Thursday, October 16, 2008

To save time and money, mediate, don’t litigate

When clients are facing difficult financial conditions, attorneys should help them conduct a cost-benefit analysis of whether to continue to litigate. According to a recent study by DecisionSet, a consulting firm that advises clients on litigation decisions (New York Times 8/8/2008), it only made economic sense to go to trial in 15% of the cases. Mediation, a dispute resolution process conducted by a neutral third party, results in successful settlement in generally 80% of litigated matters. With the volatility in the stock market, and bleak economic conditions faced by many businesses, lawyers and clients should seriously consider use of mediation to resolve disputes without litigation.

Wednesday, October 15, 2008

WHAT HR CAN BRING TO THE TABLE DURING TOUGH ECONOMIC TIMES

We are working through the most volatile economic conditions in history: employees are nervous about their job security and the jobs of family members and are confronting higher prices for almost every consumer good from food to tuition to health care.  There is a great deal of uncertainty on every front and even the so-called “experts” are unwilling to make predictions for the future. So what can Human Resources professionals do to bring value to their management clients and employees who may look to them for answers? First, encourage upper management to communicate clearly, truthfully and often to employees about the status of the company’s business and the future outlook. Employees hate to be left in the dark. Human Resources can help management craft a message and then repeat it often and in different ways to convey to employees that now is the time for them to be engaged in doing everything possible to be productive and to promote the company’s business objectives. Second, encourage employees to keep up their skills, knowledge, technological savvy and to stay physically and mentally fit. Employee wellness helps to prevent stress, low morale, and dips in productivity. Third, Human Resources must be sure that personnel records are in order as they may be called upon to help with retention of high-performers or plan for attrition if necessary. Finally, even in economic crises, life goes on and Human Resources must tend to the run-of-the-mill decisions that keep the company on the right side of the employment laws. Now is not a good time to be distracted by expensive and time-consuming employment litigation.

Friday, October 10, 2008

EDD Offers Alternative To Layoffs For California Employers

Some companies are facing tough choices during the current economic downturn. Layoffs may allow the company to survive. But when the economy rebounds, those laid off workers may not be available for rehire. Hiring and training a new workforce is time consuming and expensive.

The California Employment Development Department (EDD) offers a program that may make sense for some employers.

The EDD offers what it calls a “Work Sharing Unemployment Insurance program.” The program allows eligible employers to reduce hours of workers, and offers the employees partial unemployment benefits. 

For example, if a business with 100 employees faces a temporary setback and could file a Work Sharing plan with EDD reducing the work week of all employees from five days to four days (a 20 percent reduction). The employees would be eligible to receive 20 percent of their weekly unemployment insurance benefits.

Says the EDD in a publication on the program: “Under this plan everyone benefits. The employer is able to keep a trained work force intact during a temporary setback and no employees lose their jobs.”

The catch of course is that the employer takes a hit on its EDD reserve account, which in turn would lead to higher employer contribution rates to make up for the depletion. That is, payroll taxes will increase. Of course, some increase may occur in a straight layoff too. Also consider that an employer may risk offending its entire workforce in an across the board reduction of hours, rather than offending only those who would receive the pink slip in a straight layoff.

The EDD offers a Guide for Work Sharing Employers.

Below are some FAQs offered in the publication:

Q. Who may participate in the Work Sharing program?

A. Any employer who has a reduction in production, services or other condition that causes the employer to seek an alternative to layoffs. The Work Sharing plan requires the participation of at least two employees, a minimum reduction of 10 percent of the regular permanent work force or work unit(s), and a minimum reduction of 10 percent of the wages earned and hours worked of participating employees.

Q. Who may not participate in the Work Sharing program?

A. Leased or temporary service employees may not participate.

Q. How does an employer apply for the Work Sharing program?

A. Employers must either call or write EDD’s Special Claims Office to request a Work Sharing Plan Application.

Q. How do employees qualify for the Work Sharing program?

A. To qualify for the Work Sharing program an employee must meet the following requirements for each Work Sharing week:

1. The employee must be regularly employed by an employer whose Work Sharing Plan Application has been approved by EDD.

2. The employee must have qualifying wages in the base quarters used to establish a regular California unemployment insurance claim.

3. The reduction in each participating employee’s hours and wages must be at least 10 percent.

4. The employee must have completed a normal work week (with no hour or wage reductions) prior to participating in Work Sharing.

Q. How much lead time is required to initiate a plan for participation in the Work Sharing program?

A. All Work Sharing plans begin on a Sunday. The earliest a plan may begin is the Sunday prior to the employer’s first contact date withEDD. If the Work Sharing Plan Application is submitted timely, the employer chooses the effective date. To be considered timely a DE 8686 must be submitted within 28 days of the employer’s first contact date with EDD.

Q. Can an employer with multiple locations have more than one Work Sharing plan?

A. No. Only one Work Sharing plan is approved for one California employer account number. However, units at the same or different locations may be included in the Work Sharing plan.

Q. When Work Sharing is no longer necessary, how does an employer cancel the Work Sharing plan?

A. Discontinue issuing the Work Sharing Certifications to participating employees. The Work Sharing plan will expire six months after the effective date without any further action from the Work Sharing employer.

Q. How many subsequent Work Sharing plans can an employer receive?

A. Subsequent Work Sharing plans will be approved provided the employer meets the requirements of the program. Each Work Sharing plan is effective for six months and subsequent plans may be approved until the employer’s economic conditions improve.

Q. Are Work Sharing participants required to serve a one week waiting period like regular unemployment insurance claimants?

A. Yes, like regular unemployment insurance claimants, Work Sharing participants must serve a one week unpaid waiting period. Usually the waiting period is the first week claimed after the initial claim is filed. Even though the waiting period is an unpaid week, all the eligibility requirements for the Work Sharing program must be met.

Submitted by:

Barker Olmsted & Barnier, APLC