Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.

 

 

Employee Handbook Updates 2013: There have been significant changes to CA employment laws in the past two years. If you haven’t updated your Employee Handbook recently and you are interested in having me update your employee handbook, please contact me.

 

English-Only Policy is Costly

The Delano regional medical center in California recently agreed to pay $975,000 to settle a lawsuit filed on behalf of a class of approximately 70 Filipino-American hospital workers.

 

According to the EEOC, the workers, mostly nursing staff, were the targets of harassing comments, undue scrutiny and discipline — particularly when speaking with a Filipino accent or in Filipino languages.

 

Supervisors, staff, and even volunteers were allegedly encouraged to act as vigilantes, constantly berating and reprimanding Filipino-American employees. According to the EEOC, staffers constantly made fun of the Filipino-American workers’ accents, ordering them to speak English even when they were already speaking in English. Some Filipino-American workers endured humiliating threats of arrest if they did not speak English and were told to go back to the Philippines.

 

At one point the CEO called only Filipino-American staff to a meeting and threatened them about the consequences of not complying with the hospital’s English-only policy, according to investigators. The threats included the installation of surveillance equipment to monitor the employees’ conversations. No other groups were targeted in the meeting. In addition, the policy was enforced unevenly. Non-Filipino staff who routinely spoke languages other than English — such as those who spoke Spanish — weren’t disciplined or warned about violating the English-only policy.

 

Aside from the monetary settlement, the medical center agreed to develop strong protocols for handling harassment and discrimination, and to amend its English-only policy. The hospital further agreed to hire an EEO monitor to assist Delano to comply with the terms of the agreement, and to conduct anti-harassment and anti-discrimination training for all staff with additional training for supervisors.

 

NLRB Finds Employer Lawfully Fired Employee Over Facebook Posts, But…

This past October, the National Labor Relations Board (NLRB) issued another decision addressing the intersection between the NLRA (the Act), social media, and handbook policies prohibiting discourteous behavior. The NLRB reviewed two separate but equally important issues in Karl Knauz Motors, Inc., where it analyzed whether the employer unlawfully fired an employee after he posted photos on Facebook, and also examined whether a courtesy policy in the employer’s handbook violated the Act.

 

The case arose when a BMW salesman at Karl Knauz Motors, was fired after he posted several photos and comments on Facebook regarding incidents that happened at work. One incident involved an accident with a Land Rover, when the 13-year-old son of a customer was allowed to sit behind the wheel after a test drive. The boy hit the gas and drove into a pond. The salesman posted a picture of the Land Rover in the pond, and a caption criticizing his co-worker’s decision to let the boy sit in the car. The other incident involved a luxury car sales event hosted by Karl Knauz Motors. The salesman criticized the company for serving hot dogs, chips, and bottled water at a luxury car event, and posted several pictures of the fare with sarcastic comments, mocking the inexpensive food and beverages.  The salesman was terminated shortly after posting these items. He filed a charge with the NLRB, claiming that he was discharged for engaging in protected concerted activity because his posts were made in an effort to improve working conditions.

 

The NLRB held that the posts about the Land Rover incident were not protected concerted activity because they were posted solely by the salesman without any discussion or connection to any of the other employees’ terms and conditions of employment. The evidence showed that the employee was discharged only because of the posts about the Land Rover incident (not the sales event incident), so consequently, his discharge did not violate the Act.

 

Despite finding for the employer on the posting issue, however, the NLRB held that the courtesy policy in the company’s handbook was unlawful. Karl Knauz Motors’ handbook had a rule requiring courteous behavior, which also prohibited disrespectful behavior or language that damaged Karl Knauz Motors’ reputation. Specifically, the policy stated:

 

Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

 

The NLRB held that this policy language was unlawful because employees could “reasonably construe” the language prohibiting “disrespectful” conduct and “language which injures the image or reputation of the Dealership,” to include statements made to co-workers and others about improving the employees’ working conditions.

 

The NLRB criticized the rule for two reasons:

• The handbook did not contain any language informing employees that statements protected under the Act were not prohibited under the courtesy policy.
• Second, according to the NLRB, employees could reasonably assume, based on a fair reading of the rule, that the company would regard statements of protest or criticism as disrespectful or injurious to its reputation.

 

This case illustrates that although employers must act cautiously when disciplining employees for comments on social media, they may still discharge employees for inappropriate comments that are not protected under the Act, including postings on social media that are made without any connection or relation to other employees’ terms and conditions of employment (provided the termination does not violate other laws). It also shows, however, that the NLRB will continue to scrutinize handbooks closely, and reject any policy that could potentially be interpreted to prohibit protected concerted activity by employees. 

 

Factoids

• Despite uncertainty, 88% of employers plan to continue to offer health care benefits 
• 42% plan to increase employee costs by 1% to 5% 
• 13% by more than 5% 
• $387 per person per year is the average savings in medical claims after being enrolled in a wellness program 
• In 2012, 59% of employers used monetary incentives to promote wellness participation, up from 37% in 2011

 

Quote

Why do they call it rush hour when nothing moves?

~Mork, from Mork and Mindy~