2013-04-10

Question:
Can a polygraph be requested when there is suspicion of theft? My company is a private company. If yes, what if an employee refuses to take a requested polygraph?

Response:
The Federal Employee Polygraph Protection Act (EPPA) expressly precludes an employer from requesting, suggesting or even causing an employee to take or submit to any lie detector test, including polygraph. Further, employers cannot use, accept, refer to, or inquire about the results of any lie detector test of an employee, even if such test is given (although as noted, in most cases it is prohibited). The EPPA also prohibits employers from discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee for, among other things, refusing to take such a test or on the basis of the results of a test. Basically, the EPPA makes it virtually impossible for an employer to lawfully require and use polygraph tests, and as such, it is not something we advise or recommend. Admittedly, there is a limited exemption that permits an employer to administer a polygraph -- but not any other lie detector -- test to employees who are "reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation." That said, for this exemption to apply, a number of criteria must be met and the impacted employee(s) must be afforded a number of rights, not the least of which include the right to have written notice of the test, the right to refuse to take it (without penalty), and the right not to have the results disclosed without their consent if they agree to take it. The EPPA is thus rarely applicable or useful, but for more information on the Act, please see:
www.dol.gov/compliance/laws/comp-eppa.htm.

Having said all of this, we should point out that an employer does not have to have "iron clad" proof that an employee engaged in misconduct in order to terminate the employment relationship (assuming there is no employment contract governing reasons for discharge). If the employer reasonably believes that an employee has engaged in misconduct or violated company policy, the best practice is to conduct an internal investigation. If the employer has a good faith, reasonable belief that an employee violated company policy or engaged in misconduct that is grounds for discipline or discharge, it is generally within its rights to discipline the employee or terminate the employment relationship (absent a contract), even without polygraph proof that it occurred, so long as such action is consistent with employer policy and past practice (if any).

Source: Enquiron HR and Employment Law HELPLINE Services, April 2013

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2013-03-04

Question:
Can you force an employee to go home who is coughing, sneezing, hacking and has a runny nose? The employee is out of sick leave but has vacation leave available to use. The employee is exempt.

Response:
We are not aware of any reason why an employer cannot seek to send home an employee who reports to work obviously and visibly ill if management reasonably believes that the health and safety of that or other employees may be at risk.

Under federal and state occupational safety and health laws, employers have a duty to ensure the work environment is safe and healthy, and this would presumably include taking measures to ensure that employees who report to work obviously ill and possibly contagious are asked to leave the premises so as not to risk infecting co-workers, and/or to not return to work without a fitness for duty certificate from their doctor (if this is consistent with company policy).

Admittedly, there may be variances in the application of a policy to send home sick employees if each manager or supervisor has discretion to determine whether an employee is too ill to be at work or otherwise a risk to the health or safety of others.

In this regard, managers and supervisors should be given basic instructions and parameters regarding application of the policy to ensure it is applied as consistently as possible throughout the organization.

Note when an employee is reasonably sent home from work, then if the employer has a PTO or sick leave policy that provides payment to employees who are out sick, we are not aware of any reason why it could not require use of the policy in this situation (unless there is a governing contract, regulation, or policy to the contrary). Also we are not aware of any law which prohibits sending an employee home as explained above even if the employee has no PTO or sick time.

There is no duty to pay a non-exempt employee for time away from work if he or she has no accrued paid time off benefits (including sick leave) to utilize.

Exempt employees must be paid in full for any partial day worked, even if there are no sick leave or other paid time off benefits, and this would include any day he or she is sent home early.

Source: Enquiron HR and Employment Law HELPLINE Services, February 2013

Question:
Is it legal for an employer to prohibit an employee from speaking to the media about incidents at work? For example, if the media calls an employee to get information about a discrimination case, can the employee be disciplined for speaking to the media if the company has a policy prohibiting the employee from doing so? What if the employee is contacted during non-working hours?

Response:
Completely prohibiting an employee from speaking to the media about workplace-related issues, including discrimination complaints, raises several concerns.

Indeed, such a policy is similar to the social media policies employers increasingly are implementing and which increasingly are being litigated in the courts and before the National Labor Relations Board (NLRB).

The general guidance from these cases is that employers must tread carefully so as not to enforce overly broad prohibitions when it comes to employee complaints about the workplace.

Specifically, if the conduct at issue involves protected activity, such as union activities or whistle blowing or complaints about alleged unlawful activities at work, such as discrimination, harassment, etc. (which you indicate is the case here), any action the employer takes to discipline an employee for discussing such activities might be construed as retaliation for having brought a claim and thus should be carefully considered to avoid statutory violations. Moreover, we generally do not recommend employers seeking to regulate activities (or social media postings) that are made outside of work hours and off company premises (and on private computers).

We also want to point out that the NLRB recently issued an unfair labor practice complaint against an employer that unlawfully terminated a union-represented employee who posted negative remarks about her supervisor on her personal Facebook page (which in turn prompted co-workers to leave similar remarks and then additional negative comments about the supervisor from the employee). The NLRB's argument was that the employee's firing violated her Section 7 right under the National Labor Relations Act to protest her working conditions.

Additionally, the NLRB asserted that the employer "maintained and enforced an overly broad blogging and internet posting policy" that contained several unlawful provisions, including a prohibition against employees making disparaging remarks about the company or company supervisors, and another forbidding employees from depicting the company in any way on the internet without the company's permission. Although that particular case was settled (with the employer agreeing to narrow its policy) and does not establish new law, the case will likely be used in subsequent cases as persuasive authority.

Accordingly, employers should ensure that its practices and policies established comport with the requirements of the settlement to avoid potential unfair labor practice charges (and this is true of unionized and non-unionized workplaces alike). In this regard, disciplining or discharging an employee for posts or remarks or even associations made on a social networking site (and possibly also with regard to discussing workplace complaints with the media) may or may not create potential exposure, depending on their nature and when they were made.

All of that said, to our knowledge an employer could lawfully prohibit employees from posting or sharing with the media or public information that is confidential, proprietary, defamatory, abusive or damaging to your other employees or client population. An employer also could prohibit employees from talking to the media during work hours or otherwise disrupting business operations. In those cases, the employer can and should also address such issues, including by disciplinary measures or terminating employment, if such action is consistent with employer policy and past practice. The employer's policy also could encourage employees to channel media questions through a designated representative (although, as noted, the employer may not be able to actually require such action). We recommend that you seek assistance of local counsel to review your current policy on this issue to ensure it meets the employer's objectives without running afoul of any rights conferred upon employees.