Employment Law Business Guide

Employment Law Business Guide

EEOC to Issue Guidance On National Origin Discrimination: Public Comment Period to Open July 1

Posted in Discrimination, EEOC

The United States Equal Employment Opportunity Commission (“EEOC”) announced on June 2, 2016 its intention to issue a revised comprehensive enforcement guidance addressing national origin discrimination under Title VII.  The proposed guidance will be open for public comment for thirty days only beginning July 1, 2016.

The EEOC has issued a number of guidance documents in the past several years addressing such matters as pregnancy discrimination, the wearing of religious garb at work and privacy issues associated with employer wellness programs.  National origin discrimination includes discrimination on the basis of an individual’s or his or her ancestors’ place of origin.  The issue of national origin discrimination was last addressed by the EEOC in a guidance fourteen years ago.  In determining that the time was right for new guidance the EEOC commented on the fact that the US workforce “is ethnically diverse, reflecting both immigration and the ongoing assimilation of first- and second-generation Americans.”  In addition, in the last decade the immigrant population in 13 states with historically smaller  established immigrant communities grew to more than twice the national average.

Although agency guidance is not law, it is the enforcing agency’s interpretation of how applicable laws and regulations should be applied.  Thus, a guidance will have substantial persuasive effect and will give the employer a roadmap for avoiding possible claims of discrimination.  In fiscal year 2015, 11 percent of private sector charges filed with the EEOC contained a national origin component.

The revised guidance addresses job segregation, human trafficking and intersectional discrimination (discrimination due to a combination of two or more protected bases such as national origin and religion).  The EEOC itself identified protecting “immigrant, migrant, and other vulnerable populations” as part of its most recent strategic enforcement plan.

Input may be provided by mail to the EEOC at Public Input, EEOC, Executive officer, 131 M Street, N.E., Washington D.C. 20507 or via email by using www.regulations.gov.

US DOL Releases Final Rule on FLSA Exemptions

Posted in Employers, FLSA, Wages

The United States Department of Labor (“DOL”) yesterday released its long awaited final rule which revises the salary test for the “white collar” exemptions to the Fair Labor Standards Act (“FLSA”).  The new rule will be effective December 1, 2016 and is expected to impact some 4.2 million salaried workers based simply on the revision of the salary threshold for exemption.  The rule is similar to the proposed rule on which the DOL received an unprecedented number of comments (270,000) from businesses, workers, organized labor and non-profit organizations, but is different in some respects.  The highlights are as follows;

  • The minimum salary level for the executive, professional and administrative exemptions is raised from $455 per week to $913 per week, the first increase since 2004.
  • The salary threshold for automatic exemption as a highly compensated employee (“HCE”) is increased from $100,000 per year to $134,004 per year.
  • The salary threshold will be increased automatically every three years beginning January 1, 2020. New salary levels will be posted by the DOL 150 days in advance of their effective date.
  • The final rule will allow up to 10% of the salary threshold for non-HCE employees to be met by non-discretionary bonuses, incentive pay or commissions provided the payments are made at least quarterly.
  • No changes are made to the duties test which determines whether white collar salaried workers earning more than the salary threshold are ineligible for overtime pay based on the jobs they perform.

The DOL states that the revised regulation will “put more money into the pockets of many middle class workers – or give them more free time.”   Businesses have been aware of this impending change since President Obama directed the Secretary of Labor in March of 2014 to update the regulations to reflect the current economy and workforce.  Now, however, is the time for those who have not yet done so to prepare for the change.  Preparations should include reviewing and updating job descriptions to reflect accurately the tasks performed by workers and  reviewing compensation levels to determine whether it is more beneficial or consistent with the law to revise salaries or reclassify employees as non-exempt.

As more information develops, we will continue to post periodic updates and advice on preparing for the changes.

New Federal Trade Secret Act Comes With Notice Requirements For Companies

Posted in Employers, Independent Contractors, Risk Management, Uncategorized, Workplace Law

6584474_1On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA).   The DTSA had passed with overwhelming bipartisan support in the Senate and House.  It became effective upon its enactment.

In an area that has long been the province of state law, the DTSA now allows a company to bring a federal claim with federal remedies and federal jurisdiction for the misappropriation of trade secrets.   Nothing in the act is intended to preempt any other provision of law.  It is intended to supplement state law.

This new federal civil remedy will allow for a more uniform federal law on protecting a business’s trade secrets.  Previously, companies had to rely upon various state laws for protection or the contractual remedies set forth in their employment, confidentiality/nondisclosure, or noncompetition agreements.  With this uniformity also comes the ability for companies to file actions in federal court.

Remedies.  The DTSA sets forth federal remedies for the misappropriation of trade secrets, which include the following.

  1. Ex parte seizures of the property at issue in “extraordinary circumstances” to “prevent the propagation or dissemination of the trade secret.”  In any order for seizure issued, the court must set forth specific findings of fact and conclusions of law to justify the seizure.  Any order for seizure must also describe the property with reasonable particularity and provide for the narrowest seizure of property necessary to achieve the purpose of the act.  The court must also set a hearing no later than seven (7) days after an order issues.
  2. Monetary damages for actual loss and unjust enrichment caused by the misappropriation of the trade secret, or a reasonable royalty in exceptional circumstances that render an injunction inequitable.
  3. For willful and malicious misappropriation, a party may recover exemplary damages of up to two-times the amount of monetary damages and its attorney’s fees.
  4. If a claim is made in bad faith or a motion to terminate an injunction is made or opposed in bad faith, the prevailing party is entitled to its reasonable attorney’s fees.
  5. In an action brought for wrongful or excessive seizure of property, a party’s recovery of damages for such wrongful or excessive seizure will not be limited by the required security or bond posted with the court.

A federal court is prohibited from entering an order except where there is evidence of threatened misappropriation and not merely on the information the person knows.  Thus, the inevitable disclosure doctrine recognized by some states does not apply under this federal law.  The DTSA also prohibits entry of injunctions that “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.”

Whistleblower Protections.  The DTSA specifically provides a person immunity from civil and criminal liability under both federal and state trade secret law.  This immunity extends to whistleblowers who disclose trade secrets “in confidence” to a federal, state or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting or investigating a suspected of violation of the law.  Immunity also extends to persons who file a lawsuit where the filings are made under seal and the trade secret is not disclosed except pursuant to a court order.

Notice Requirements.  In addition to these whistleblower protections, the DTSA requires employers to provide notice of the immunity to an employee in any contract or agreement that governs the use of confidential or trade secret information.  Alternatively, an employer may fulfill this notice requirement by cross-referencing in the contract or agreement a policy document it provided to the employee that details the employer’s reporting policy.  This may include a provision in an employment handbook or some other policy document.

Of note, the DTSA broadly defines “employee” to include “any individual performing work as a contractor or consultant for an employer.”   This expands those persons who are covered by these whistleblower protections.  The notice requirement is prospective as it applies to “contracts and agreements that are entered into or updated after the date of enactment.”

In an effort to obtain compliance with this notice provision, the DTSA provides that if an employer fails to give the required notice to an employee, the employer may not be awarded exemplary monetary damages or attorney’s fees in an action brought against that employee.  The DTSA, however, provides no guidance on the required disclosure or cross-referenced policy language.

Statute of Limitations.  A private civil action under the DTSA must be brought within “three years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered.”

What should businesses do in the wake of this new federal law?  Companies should review their agreements that provide for confidentiality or similar trade secret provisions and amend them accordingly moving forward.  These may include employment agreements, noncompetition agreements, and business agreements with independent contractors or consultants.  To fully enjoy the federal remedies allowed, an immunity notice should be included in all new and updated employee agreements as well as contractor and consultant agreements with independent contractors.  Employers should also review their handbooks and policies relating to protection of confidential or trade secret information so that they may also rely on a policy document for compliance.

What Do “Bathroom Bills” Mean for Employers?

Posted in EEOC
Photo: jaliyaj via Flickr (CC by 2.0)

Photo: jaliyaj via Flickr (CC by 2.0)

Last month, national retail chain Target announced that it would allow transgender employees and customers to choose the restroom and fitting room facilities that correspond to their gender identity.  Target took this step in response to laws, and proposed laws, in places like North Carolina and elsewhere, which seek to limit access to public restrooms based on the gender assigned to a person at birth.  These laws, and Target’s actions, have sparked an animated debate with people expressing strong feelings on both sides of the issue.  All of this has left many employers wondering what their responsibilities are with regard to bathroom access for their employees.

This week, the EEOC issued a Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII of the Civil Rights Act of 1964, which sheds some light on the matter.  The EEOC reminds employers that Title VII, which applies to private employers with 15 or more employees, prohibits employment discrimination based on sex, which encompasses gender identity.  The EEOC referenced two recent agency decisions and an opinion from the Fourth Circuit Court of Appeals, all relating to discrimination based on transgender status, and involving access to restrooms and locker rooms.  The EEOC points out that contrary state law or local ordinance will not provide any defense to an employer facing charges of discrimination under Title VII.  In an apparent acknowledgement of the deeply held beliefs asserted by the proponents of the so called “Bathroom Bills,” the EEOC emphasizes that Title VII only addresses workplace conduct, not personal beliefs.  As the EEOC explains, “these protections do not require any employee to change beliefs.  Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.”

OSHA has also offered its guidance to employers on the issue of providing bathroom access to transgender employees.  OSHA’s Sanitation Standard requires employers to provide employees with prompt access to appropriate sanitary facilities.  It is OSHA’s position that this requires employers to permit employees to use the facilities that correspond with their gender identity.  OSHA suggests that employers provide employees with various options that employees may, but are not required to, choose to use, such as gender-neutral single-occupant restrooms or multiple-occupant restroom facilities with lockable single-occupant stalls.  However, OSHA emphasizes that, regardless of the workplace’s layout, “all employers need to find solutions that are safe and convenient and respect transgender employees.”

So, while the cable news talking heads and social media commenters continue to have their say about the bathroom wars, the EEOC and OSHA have made their position on the issue clear.

UBER Agrees to Pay Up To $100 Million to Drivers in Settlement of Two Class-Action Lawsuits

Posted in Employers, Independent Contractors, Liability, Massachusetts, Settlements, Wages
Photo: Jason Lawrence via Flickr (CC by 2.0)

Photo: Jason Lawrence via Flickr (CC by 2.0)

UBER has settled two class-action lawsuits — one filed in California in 2013 (O’Connor) and one in Massachusetts in 2014 (Yucesoy) — by drivers who sought to be considered employees rather than independent contractors.  In those cases, plaintiffs were seeking additional compensation, including reimbursement for expenses and tips.  The two cases had about 385,000 drivers as class members.

In the settlement reached in April 2016, UBER agreed to pay $84 million to the class of plaintiff-drivers.  UBER will pay an additional $16 million if it goes public and if its valuation increases by one and a half times its 2015 valuation within the first year of an IPO.

Additionally, under the terms of the settlement, drivers will remain independent contractors and not employees.  UBER will provide drivers with more information about their individual ratings and how each driver compares with his or her peers.  It agreed to introduce a policy explaining the circumstances under which UBER deactivates drivers from using its app.  The company’s official driver deactivation policy has been posted.  UBER also agreed to create an association in each state to allow drivers a venue for discussing drivers’ issues.  Furthermore, UBER drivers will be allowed to post signs in their cars that tell passengers that while not required, tips are welcome.

While a judge needs to approve the settlement, UBER’s Co-Founder and CEO Travis Kalanick issued a press release highlighting the settlement terms.  He views the resolution a win for the company.  He expressed that many drivers prefer to be their “own boss” and would remain independent contractors under these settlement terms.  As Mr. Kalanick explains, “Uber is a new way of working: it’s about people having the freedom to start and stop work when they want, at the push of a button.  As we’ve grown we’ve gotten a lot right—but certainly not everything. “

Lessons to be learned from UBER?  Companies should review how they classify workers.  Companies should also review and update any third party services agreements they are currently working under.  Misclassification creates risks for companies that may lead to costly class action lawsuits.

Companies: Make Sure You Are Ready For A Litigation Hold

Posted in Employers, Liability

Computer keyWith the number of emails, texts, and other electronic data in the workplace today, not knowing your company’s litigation preservation duties or not having proper procedures in place to meet those responsibilities may later lead to court sanctions such as fines or the loss of a lawsuit. The law prohibits the destruction of potentially relevant evidence.  Today, a company must know (1) when it has an obligation to preserve information and (2) what information it must preserve.

This responsibility usually falls on the shoulders of the business managers and human resources people who address the issue before outside counsel become involved.  Managers and HR professionals must understand the instances that may give rise to the duty in the employment context, and they must be able to assess what evidence to preserve and what steps to take to ensure preservation.

The duty to preserve documents and electronic information arises when an employer has notice that the information is relevant to litigation or when an employer should have known that the information may be relevant to future litigation.  In other words, documents and electronic data must be preserved when litigation is “reasonably anticipated.”  The usual circumstances kick-starting this duty might be a lawyer’s letter, notice of a complaint filed with the EEOC or a state agency, or notice of a lawsuit.  Depending on the circumstances, the duty to preserve may arise even before this.

What information must be preserved depends on two variables:  (1) who is involved; and (2) what documents such people have.  When a reasonable anticipation of litigation arises, a company should ascertain the key players or which employees are likely to have relevant information.  A company should then determine what documents each person may have.  That inquiry inherently requires an investigation of the types of information that each key player may have and the locations where that information may be stored, including documents in various electronic forms and mediums (desktop, laptop, server, thumb drive, audio, camera, cell-phone, etc.).

As a company learns more about a potential dispute, it should reassess whether it has preserved all of the evidence that it must preserve.  That involves reassessing whether there are additional key players, whether there are new issues that require the preservation of a broader type of evidence, or whether evidence spans a broader time period than initially preserved.

The obligation to secure evidence can require a company to take a number of different actions.  Some of the common steps include:

(1)        Determine the scope of the litigation hold (including subject matter and issues, key players, location of data, and relevant time periods) and promptly stop automatic destruction processes until the proper scope can be determined.

(2)        Issue litigation hold notices to key players and other corporate employees, such as IT people, informing them that there is a hold on the destruction of any documents subject to the preservation obligation. Key players should be reminded that preservation includes all information within the scope identified no matter where the data is located.

(3)        Interview key players, and determine any required expansion of the scope of the hold and segregate them to prevent any destruction.

(4)        Work with IT people to ensure that routine data destruction measures are appropriately stopped according to the hold.

(5)        Make electronic forensic images of the hard drives and other electronic devices of certain key players.

A company must take prompt steps to preserve potentially relevant evidence when a reasonable anticipation of litigation arises.  It should have procedures in place for determining the key players, the relevant time period, and where any documents and data may be stored.   A company may consider consulting with counsel on the duty and scope of a litigation hold so that it does not face problems later.

 

Massachusetts Challenges “On Call” Shifts

Posted in Massachusetts, Wages

The Massachusetts Attorney General’s Office, along with several other states, is challenging retail stores’ use of “on call” shifts.  This month, Massachusetts joined with California, Connecticut, the District of Columbia, Illinois, Maryland, Minnesota, New York and Rhode Island to send requests for information regarding the use of “on call” shifts to 15 national retailers that have locations in Massachusetts (click here for the AG’s Press Release).  These retailers include major household names, such as American Eagle Outfitters, Coach, Carter’s, Disney Stores, Forever 21, and Payless, to name a few.

According to Attorney General Maura Healey, employees assigned to on-call shifts are typically required to contact their employer an hour or two before a scheduled shift to learn whether they must work the shift.  If the worker learns that his or her services are not required, the worker does not get paid, even though the employee was required to be available to work, to forgo other job and educational opportunities, and to make arrangements for child care or other person responsibilities.  According to the letter sent to retailers, “[s]uch unpredictable work schedules take a toll on employees.”  The letter cites concerns that workers who must be “on call” have difficulty making reliable childcare and eldercare arrangements, encounter obstacles in pursuing an education, and in general experience higher incidences of adverse health effects, overall stress, and strain on family life than workers with a stable schedule set reasonably in advance.

In 2015, after a similar inquiry by the New York Attorney General, several major retailers including Abercrombie & Fitch, Gap, J.Crew, Bath & Body Works, and Victoria’s Secret agreed to end the practice.

According to the Attorney General’s Office, retail salesperson is the most common occupation in the United States, and Massachusetts has over 100,000 retail sales jobs.  Entry level retail workers earn, on average, $1,460/month or $17,520/year.  And although men and women are nearly evenly represented in retail jobs, women are concentrated in low-wage retail jobs.

For employers, the issue is not just one of ensuring employees’ well-being.  Many states have reporting pay or call-in pay laws of their own that employers must follow.  For example, New York’s “call in pay” regulation provides that “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” 12 NYCRR 142-2.3.

Currently, Massachusetts does not have laws prohibiting the use of these types of “on call” shifts.  The Massachusetts regulation, 454 CMR 27.04(2) provides that “[a]ll on-call time is compensable working time unless the employee is not required to be at the work site or another location, and is effectively free to use his or her time for his or her own purposes” (emphasis added).  An interesting issue is whether the employee who is waiting to hear whether he or she must report to work is effectively free to use his or her time for his or her own purposes.

Last year, a bill was introduced in the House that would require all employers to provide 21 days advance notice to employees of their schedule, and when an employer changes or cancels a shift, the employer would be required to pay one to four hours of “predictability pay,” in addition to the wages paid for hours worked.  The Senate bill, which would apply only to fast food and retail establishments with at least 75 employees, would likewise require 14 days advance notice to employees of their schedule, and if a shift is changed or canceled, the employer would be responsible for one to four hours of additional pay.

While not current law, Massachusetts employers should consider the implications and realities should these bills, or similar bills in the future, become law, especially in light of the Massachusetts Attorney General’s Office recent inquiry and critique of “on call” shifts.

Statistical Samples May Establish Employer Liability in Class Action Lawsuits

Posted in Employers, FLSA, Liability, Overtime, U.S. Supreme Court, Uncategorized, Wages
Photo: dbking via Flickr (CC by 2.0)

Photo: dbking via Flickr (CC by 2.0)

In Tyson Foods, Inc. v. Bouaphakeo, the U.S. Supreme Court held that statistical or representative evidence could be used by a class of employees to prove liability for an employer’s failure to pay them for donning and doffing protective gear in violation of the Fair Labor Standards Act (FLSA).  In this class action lawsuit, workers at a meat-processing plant alleged that Tyson failed to give them credit for time spent donning and doffing protective gear and walking to and from their production line.  The workers were claiming overtime pay as a result of all hours worked over 40 hours a week when adding this additional time.

A jury found for the workers and awarded the class about $2.9 million in unpaid wages.  At trial, the court allowed the employees to use representative or an average sample of time it took workers in donning and doffing their gear rather than requiring each class member to present individualized proof of time spent.  Plaintiffs’ expert testified at trial that he determined the average time it took 53 of the 3,344 workers in the class to do these tasks and concluded that an average of 18 minutes a day needed to be added to weekly hours worked for one department and 21.25 minutes a day for another department.  Plaintiffs claimed it could be presumed that all class members were identical to the statistical average and that the workers were owed overtime for all time over 40 hours when adding the representative time to the weekly time worked.

Tyson argued that the trial court erred because the time per employee to perform those tasks was so different that they cannot rely on averages and the class should not have been certified under Federal Rule of Civil Procedure 23(b)(3).  The U.S. Supreme Court disagreed and found that a categorical exclusion of the use of samples made little sense.  It held that it would allow statistical samples to establish liability on a case by case basis — depending on the purpose for which the evidence was being introduced and on the elements of the underlying action.  In reaching this decision, the Supreme Court highlighted the employer’s violation of its duty to maintain records of this time.  Because there was a gap in employer required records of work-time, each employee could have relied on the average sample of time to prove liability and therefore the representative evidence could be used on a class-wide basis.

The Supreme Court explained that its holding was consistent with its 2011 decision in Wal-Mart Stores, Inc. v. Dukes as that case involved 1.5 million employees who were not similarly situated because they were at different stores and under different policies.  The class in Dukes failed to meet even Rule 23(a)’s basic requirement that class members share a common question of fact or law.  On the contrary, in Tyson, the employees worked out of the same facility, did similar work, and were under the same policies for pay.

While refusing to establish a general rule governing the use of such evidence, the Supreme Court widened the potential liability for employers in defending class action suits by allowing representative samples.  This is particularly the case where there are record keeping violations by the employer in the wage and hour area.  Employers should make sure that they review their practices and procedures and confirm that they are maintaining appropriate records of time for all employees.

 

NLRB Issues a Complaint Alleging That Misclassification of Independent Contractors is an Unfair Labor Practice: Another Front on Which to Wage the Independent Contractor War

Posted in NLRB
Photo: Bill Ward via Flickr (CC by 2.0)

Photo: Bill Ward via Flickr (CC by 2.0)

The Los Angeles office of the National Labor Relations Board (“NLRB”) issued a Complaint based on an unfair labor practices charge brought by the International Brotherhood of Teamsters (“Teamsters”) against Intermodal Bridge Transport, a California company in the logistics and transport business.  The original charge was filed in August of 2015 and amended twice since.

The Complaint, scheduled to be heard by an Administrative Law Judge in June, alleges, among other things, that the employer’s classification of its delivery drivers as independent contractors constitutes an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act (the “Act”). The argument is based on the claim that misclassification inhibits individuals who would otherwise be employees from engaging in their Section 7 rights to concerted activity including unionizing.

Of particular interest is the fact that this action appears to be based on the advice provided in Memorandum GC 16-01 issued by the NLRB’s General Counsel on March 22, 2016.  There, the General Counsel directed Regional Directors and others in charge of enforcing offices to prioritize certain “cases that involve the General Counsel’s initiatives or policy concerns.”  Among those listed are “cases involving the question of whether the misclassification of employees as independent contractors violates Section 8(a)(1).”

For companies which utilize the services of independent contractors, this action presents one more potential front on which the misclassification war may be waged.  This is in addition to state and federal agencies which include, the United States Department of Labor, the Internal Revenue Service, state departments of labor and state unemployment offices.  As we have long stated, be wary of classifying workers as independent contractors; the tests are difficult to meet, and the penalties are severe.

Shall We Talk About the Election?

Posted in First Amendment Rights, Workplace Law
Photo: US map - states.ca (public domain)

Photo: US map – states.ca (public domain)

Now that the first in the nation primary is over and the politicians have headed to other states, New Hampshire employers might think they don’t have to worry about politics creeping into the workplace.  This presidential election cycle, however, continues to be like no other; and even though Trump and Cruz and Clinton and Sanders have moved on, the rhetoric is only escalating at dinner tables and in bars. People are being arrested outside political rallies, and candidates are accusing one another of inciting violence.  Now may be a good time to review the do’s and don’ts of campaign conversation at work.

With what seems like a debate or a town hall meeting every other night and 24/7 news coverage it is likely that employees are engaged in a lot of “water cooler” conversation about the candidates either in person or through social media.  What can and should an employer do about regulating political discourse at work?

First, employees do not have so-called First Amendment rights to free speech in private workplaces.  The cry of “it’s a free country” and “you’re not the boss of me!” doesn’t quite ring true at work.  Employers may indeed restrict employee speech and activity during business hours and sometimes even when employees are off duty.

What follows is some general advice about what you can and can’t prohibit or require:

  • Employers may prohibit employees from using office equipment in support of political activity. That includes phones, computers and copiers.
  • It is also permissible to require employees to remove political buttons or take down posters. However, companies must be cautious that the material they are requesting be removed does not contain verbiage or logos related to unions as this speech is protected by the National Labor Relations Act. It is also wise to link such requests to a neutral policy or dress code which does not single out a particular type of speech or content.
  • It may also be appropriate to ask an employee who drives on company business to remove a political bumper sticker from a personal vehicle. Most businesses prefer to appear neutral regarding political matters so as not to alienate prospective customers so an employer may very well have a legitimate business interest in prohibiting political advertisements on vehicles being used for business.
  • Social media, as usual, presents unique challenges. If employers have a legitimate business interest in prohibiting political commentary by employees on social media, such a prohibition is usually acceptable. It would be easier for a business to justify telling an employee not to post political affiliations on LinkedIn, for example, which is often used for business.  It is more difficult to do so on purely personal social media such as a private Facebook page.  Again, any discussion about unions or conditions of work is protected, and must be allowed.
  • Companies may either allow or prohibit discussion of politics at work. Care must be taken, however, to make sure these conversations do not become conversations about protected classes or characteristics. In this election year it wouldn’t be hard to imagine campaign conversations including the mention of age, gender, religion or national origin.  Once that happens, a hostile work environment claim might follow.

A special word about non-profits:  501(c)(3) corporations must be very careful that political advocacy stays out of the workplace. The use of office equipment or advocacy by employees, for example, might compromise a non-profit’s tax exempt status.

As with most issues involving any potential controversy, an employer’s best defense is to have good policies: preferably policies which are neutral.  A dress code which prohibits logoed shirts or a non-solicitation policy which limits all forms of solicitation is much safer than one which targets political speech and solicitation only.  Likewise, the best way to enforce such policies is in a fair and evenhanded way.  In other words, don’t put Trump bumper stickers on all the company vans and tell those with the “Feel the Bern” bumper stickers to remove them from their personal vehicles.  Things might get even hotter than they are already.