Delaware Employment Law Blog

How important is office space to employees?  Very important, apparently, according to this article discussing a "summer office swap" conducted at a Boston-area advertising agency.  During the summer months at this forward-thinking firm, nearly every employee switches office space based on a lottery system.

There were a small number of managers with offices, and regardless of how high their pick was, they could not keep an office. However, who did get the office appeared to depend on an elaborate bartering system, which resulted in more lowly office types offering services such as babysitting, car washing, and coffee retrieval in exchange for a seat in a coveted manager office.

The article is a good reminder of how important office space is to employees. More than a few employment discrimination lawsuits have been based, in part, on the office (or cubicle) an employee is assigned to.

In 2003, there was a Delaware case involving a plaintiff who filed a federal lawsuit which entailed, among other things, his objection to an office space “auction” at University of Delaware – where the best offices would go to the highest bidder and the money raised would go into a fund for use of the Department.

More recently, I had a case where among a plaintiff’s evidence of “retaliation,” were claims that she was given a “dirty, dusty cubical walls filled with dust mites.” And of course, who can forget the movie Office Space, and Milton, whose most prized possession was his Swingline stapler, and whose cubicle was continually moved until he was eventually wound up in a dimly lit basement among the boxes.

The legal profession is one of the last standouts where a good portion of the employees – lawyers and paralegals – typically have real offices with doors: associates have window offices, partners have bigger window offices, and paralegals have interior window-less offices. I know this is unusual for most of corporate America. But as the Boston Globe article illustrated, even among cubicles there is a hierarchy: those closest to the window, most shielded from foot traffic, etc.

Employers should keep in mind the importance of office space to employees, and what a difference small changes can make. In this era of layoffs and belt-tightening, there may be simple and relatively inexpensive ways to reward your employees and keep them happy: think about small ways their work environment can be improved. Many (indeed most) employers are not cut out for the “summer office swap” conducted by the Boston firm – if this was ever attempted in a law firm, I’m quite certain it would result in a revolt that would make the Pakistani lawyers revolt look tame. Nevertheless, consider what might work for your workplace: access to natural light, modest levels of privacy, can go a long way to build employee loyalty.

Delaware’s law banning calling and texting while driving takes effect in January. Eric Ruth, of the Wilmington News Journal, details what Delaware's new no-cell-phone law does and does not require and, with a few suggestions from Adria B. Martinelli, offers ways that employers can begin to prepare.

Adria also offers some tips for employers who will need to update their policies:

• Ban all cell phone use while driving company-owned vehicles -- even hands-free devices can distract drivers.
• Specifically ban texting and e-mailing while driving. If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle.
• Make an exception for emergencies that require police or medical attention.
• Also require all occupants of company-owned vehicles or private vehicles driven on company business to wear seat belts.
• Monitor and enforce the policy.

Delaware Governor Jack Markell declared a state of emergency and instituted a driving ban limiting driving to emergency vehicles only as a result of the record-setting snow storms that hit the Northeast this week. While State government strongly urged employers to consider their employees’ safety and close their businesses for the duration of the state of emergency, nothing prohibited employers from opening for operation during the storm.

But employers should consider more than employee safety when choosing to open their businesses during a state of emergency. At least one case, decided by the Delaware Superior Court after the blizzard of 1996, noted that an employer could be liable for an employee’s injuries if the employee was called in to work during a state of emergency.

While the general rule is that an employer is not responsible for an employee’s injuries if those injuries are sustained outside of the employer’s property, there are exceptions. One such exception is that an employer may be liable for an employee’s injuries, sustained while travelling to the employer’s property, if the employee is called to work when he was not otherwise expected at work. This exception has not yet been applied to a case where an employee is injured coming into work during a state of emergency.

In the end, while it may be financially costly, employers will garner employee good will and avoid liability for employee injuries by closing during a state of emergency.

Garrison v. State, No. 96A-05-004, 1996 Del. Super. LEXIS 443 (Del. Super. Ct. Oct. 8, 1996).

With the weather forecast predicting record-setting snowfall in the Northeast, many employers are preparing to close operations again tomorrow. But how to handle snow days when it comes to calculating payroll? Here's the run-down.

The Fair Labor Standards Act (FLSA) prohibits employers from reducing the pay of any exempt employee based on the quantity or quality of his work or when he is ready, willing, and able to work but no work is available. Applying that basic principle, the U.S. DOL has taken the position that employers that decide to close because of weather conditions must pay exempt employees their regular salaries for any shutdown that lasts less than one full week.

On the other hand, nothing prohibits an employer from requiring employees, including exempt ones, to use accrued vacation time or other time off to cover the missed work. The FLSA doesn't require you to provide vacation or leave time at all, so there's nothing to prevent you from giving your employees vacation or paid time off (PTO) but then requiring them to take it on certain days. A private employer may therefore deduct the period of absence due to bad weather from an employee's remaining vacation or leave time, whether the absence is a full day or a partial day, so long as you pay exempt employees their regular salaries for that time.

The practical problem, of course, is that when bad weather hits, some exempt employees may not have any vacation or leave time left. Or they may have already scheduled to take off — and received approval to use — whatever vacation or leave time they have remaining. Even if an exempt employee has no time off remaining, she still must be paid her regular salary when the organization is closed because of bad weather for less than a week. The DOL has made it clear that you must pay employees in those circumstances, even if you offer no vacation or PTO benefits at all and even if you provide those benefits but the employee has no remaining accrued leave available.

There's no legal prohibition against applying PTO to days missed because of a facility closure and canceling part or all of approved vacation time for exempt employees who have time remaining but have approved plans to use their PTO on other days. You should first consider the inevitable negative effect of that practice on employee morale, however.

According to a report released today by the FDIC, a shocking 26 percent of U.S. households have little or no access to banking service, and the problem hits poor and minority families the hardest. As a result, these individuals must often pay to have their payroll checks cashed.

Delaware employers should be aware that payroll debit cards may be a good way  to help  "unbanked employees" to avoid check cashing charges.

For many years, efforts to use payroll debit cards were thwarted by Delaware law. Under the Delaware Wage Payment and Collection Act, employers must pay all wages "in lawful money of the United States or checks provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment." The Act further defines a check as being "a draft drawn on a bank and payable on demand." In combination, those provisions appeared to preclude the use of payroll debit cards for wage payment.

Delaware Department of Labor regulations interpreting the DWPCA, however, were amended in 2004 to specifically authorize the use of payroll debit cards. The regulations state that an employer may issue "a payroll debit card which provides the functional equivalent of cash or a check."  It is the employers' responsibility "to effectuate a payroll debit card system which will allow full payment of wages on the employee's regular payday and without cost to the employee."

A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or "texting" has seen explosive growth in the past few years.  But are employers really in touch with this tool and its potential legal risks? 

One employer has.  Alachua County, Florida, has banned County employees from sending text messages for County business.  The prohibition was announced after County official  became concerned that text messages constituted public records that are subject to a FOIA-type request.  FOIA laws require public entities to produce official records when a proper request is made. 

Textual harassment has gotten quite a bit of press lately, and for good reason.  According to the National Conference of State Legislatures, 46 states, including Delaware, currently have an electronic harassment or "cyberstalking" law. 

The Delaware law provides that a person is guilty of criminal harassment when, with the intent to harass, annoy, or alarm another, the person . . . communicates by telephone. . . or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm. 

When an employer learns of a possible hostile environment, it must comply with fairly strict rules relating to how and how quickly to respond.  Textual harassment adds another layer to the process because employers must determine whether any electronic evidence of harassment (or evidence that disproves harassment) exists on computers, laptops, and, now, cell phones.

Employer should consider whether their employees are using work (or personal) phones to send text messages about work during working time.  If so, you are obligated to take active steps to preserve these messages once you have reason to believe there may be potential litigation. If you're not in a position to do that, you may want to consider implementing a "no-texting" rule for all business-related correspondence.

Workplace Prof Blog reports that, last week, Congress designated October as National Work and Family Life Month.  The primary force behind the measure was the Alliance for Work-Life Progress, and the purpose was to encourage employers and employees to seek flexible work environments to better balance the needs of work and families.

October is also Workplace Politics Awareness Month.  So, how can we put these two noble causes together? 

How about by creating an “official” work-life policy.  An often-heard complaint is the lack of transparency in part-time or remote-work policies. Many organizations, especially in professional-services fields, negotiate reduced-hour schedules on a case-by-case basis. This often results in unequal application of the policy.  The uncertainty also causes some employees to avoid the discussion altogether. In other words, those “in the know” is more likely to request a flex or reduced-hours schedule than someone outside the loop, only because the employee in the know feels more confident that they’ll get an answer they’re expecting.

To prevent unfairly preferential treatment of those with access to the key information holders (i.e., the “favorites”), create a policy on flex schedules for circulation to all employees.

More employers are addressing their employees’ use of social-media sites, such as Facebook, through formal workplace policies. Here are just a few of the employers whose policies have made headlines in the past several weeks:

Ohio state troopers are now prohibited from "posting pictures of themselves or others in uniform and from using the patrol's 'flying wheel' insignia on social-networking sites without approval." As Brian Hall reported, the new rule for uniformed employees of the Ohio State Highway Patrol came to be as a result of a female trooper who posted an “inappropriate” picture of herself and another trooper on her MySpace page. She was not wearing a uniform in the picture but her site did identify her as a member of the Highway Patrol.  The poster apparently did not realize that her site was viewable by the public. 

Takeaway: Policies should include education for employees to explain how to set effective privacy settings.

 

The NFL implemented a somewhat unpopular policy limiting players’ and coaches use of Twitter at game time. The NFL’s new guidelines provide that its members can use social-media applications until 90 minutes before each the start of a game and have to wait until traditional media interviews are finished before they resume posting personal messages. The policy was initiated shortly after media-favorite, Bengal’s player Chad Ochocinco announced that he would tweet from the sidelines.  When that appeared to be threatened by the pending policy, he said he would have someone else tweet for him at his signal. The NFL wrote a line into the policy prohibiting players from having someone else tweet on their behalf. At first, it was reported that Ochocinco would delete his Twitter account but, not one to be called a quitter, he announced this week that he’s found a “loophole” in the NFL’s policy and is planning a “surprise” at the team’s season opener on Sunday. This summer, the San Diego Chargers reportedly fined cornerback Antonio Cromartie $2,500 for using Twitter to complain about the food served at the team's training camp. 

Driven by concerns about potentially lost business, the League also is attempting to restrict how fans can use social-media applications like Facebook and Twitter to talk about professional football. Under the new rules, the NFL says fans are encouraged to circulate messages about teams and players, but cannot post play-by-play accounts of actual games. 

Takeaway:  Policies that are overly broad are likely to be ignored from the start, making enforcement very difficult. If a policy is obviously ineffective, don’t bother.

 

The Pentagon also has some concerns about the potential impacts of Twitter and similar social media.  In August, Deputy Defense Secretary William Lynn commissioned a report on the pros and cons of social media.  The Pentagon, he said, will review the report and, by the end of September, issue an official policy.  The Marines banned access to Facebook from its computers, citing security concerns.  Marines can access Facebook and Twitter from their personal computers and at internet cafes, though.  The order banning access states: "These internet sites in general are a proven haven for malicious actors and content -- and are particularly high risk due to information exposure, user-generated content and targeting by adversaries."

 

For more on the love-hate relationship of employers and Facebook, see these earlier posts:

New Statistics on Employers Using Social Media to Research Applicants

Warnings Against LinkedIn Recommendations: Justified or Propaganda?

How to Become an Employer of Last Resort: Require Applicants' Facebook Passwords

Facebook and YouTube Make Employees More Productive. Really??

What is the appropriate discipline for an employees'  violation of a workplace cell-phone usage policy?

If you're New Jersey teacher Desley Getty, the answer is a reprimand and a $22,000 fine.  

Getty, a performing arts teacher at Asbury Park High School, picked an inopportune moment to send out her own greeting from Asbury Park in the form of a four-minute cell phone call to a suspended school superintendent.   

According to a news report describing the incident:

Court records show that Getty was covering for another teacher for a 45 minute period Jan. 10, 2008. Students had been assigned a test, but many had   apparently finished it during the first part of the 80-minute class. While she was at the desk, Getty placed a cell phone call to the district's suspended superintendent Antonio Lewis. While she was on the phone, two students danced in front of her desk and between her and the class. Another student played music on his cell phone and recorded the dancing with a digital camera, then posted an almost two minute edited version on YouTube.

The following school day after Getty became aware of the video, she went back into the classroom and began questioning students about who made it, records show. This action reportedly caused significant disruption in the class for about a half-hour, and when the administration learned of the matter, a reprimand was issued.

Like many employers, Asbury Park has a policy restricting staff cell phone usage in the workplace.  The policy permits "staff to make personal calls during their free period or lunch break outside the presence of students."  However, "[i]t specifically states that personal calls cannot be made while performing assigned school responsibilities except in emergency situations."

Although Getty will keep her job, she faces a stiff penalty for her actions.  Specifically, she is being reprimanded and will forfeit 120 days' salary as a penalty for the phone call and its repercussions.  The 120 days of salary adds up to a grand total of $22,000 .

According to news reports today, Getty will not appeal the ruling.

The decision not to terminate Getty is understandable, after all, it's hard to be a saint in high school.

Nearly 60% of terminated or  laid off employees steal proprietary company data when leaving, says a new study released by the Ponemon Institute, an Arizona-based research company.  Most employees take hard copies or paper documents but they also admit to downloading and saving data and sending information as attachments to personal emails.

The study does not indicate whether this trend is on the rise but I’d venture to guess that it is, based only on my clients’ experiences.  It’s become very common for an employer to discover that an exiting employee emailed himself sensitive information prior to his exit.  The study reports that approximately 25% of the employees who admitted to taking data admitted that they were able to access the company’s network even after they’d left.  This is obviously the first step when preparing to terminate an employee—remove their access to all confidential data, whether in electronic or paper form.

It’s best to have IT turn off electronic access prior to the termination meeting.  And, at the same time, have them scan his emails to determine whether the employee has sent any emails in the last couple of weeks to his personal account, such as a G-Mail, Yahoo!, or AOL account.  And determine whether these emails contained any attachments.  If so, you should determine just what it is exactly that the employee forwarded in those emails before the termination meeting.

If the termination is a particularly contentious one (i.e., this is a “problem” employee), you should also consider whether you want to preserve all of the individual’s incoming and outgoing emails if you don’t have a system in place to do that automatically.  Users of the full version (i.e., not Reader) of Acrobat 9 can do this in a flash by converting all emails to a single PDF document.  Or you can forward all of the emails to an HR or other secure email account.  Should the employee later file a claim, his emails could very well be the key to your defense so don’t risk losing them.

The founder of the Ponemon Institute suggested that employees steal data because they think they are entitled to it as something they helped to create.  Other theories include that employees want to use the information in their portfolios or to otherwise help them seek other work.  Of course, the traditional school of thought says that employees steal to “get back” at the employer in response to the wrong they perceive has been done to them. Whatever the reason, employers cannot afford to take this lightly. Confidential and proprietary information belongs to the organization—not to the employee—so the organization must be diligent in preventing the loss of its rightly-owned data.

Anti-nepotism policies are fairly common in the workplace, though their limits can vary widely.  For example, many employers permit spouses to work together, provided they are not in a direct supervisor-subordinate role.  Other employers focus not on curtailing romance at work but on the working relationship of any familial relations, such as parent and child.  How effective these policies are seems to remain an elusive statistic, though, especially due to the fact that office romances often begin and end without the knowledge of management. 

The Vault's recent survey on this topic included some very revealing statistics.  Here are a few of my favorites:

Have you ever been involved in an office romance?

 

Does the shaky economy make you want to take more romantic risks at the office, or less?

 

Have you ever dated your boss or someone you supervise?

 

 

Have you ever known a married co-worker to have an affair with someone at the office?

The Office Romance survey also provides statistics on office trysts, business-trip liaisons, and other salacious stories.  We always say, employment law is really all about sex, drugs, and rock 'n roll.  And this survey may just prove it!

Is there a "no-cussing" policy in your workplace?  How many times a day can you expect to hear the F-bomb?  How about less extreme curse words?  Apparently, the frequency with which we toss around swear words is on the rise.  An article at MSNBC claims that the increase in swearing is tied to a tanking economy.  Please.  I don't buy that for a minute. 

The reality is that the boundaries of socially accepted behavior is changing, has changed, and will continue to change.  Anyone who watched the Bravo show, Mad Men understands this concept.  But why is it that we do steer towards cussing?  Why don't we buck another trend?

Psychologists say that a little swearing can be good for you.  Two-thirds of cursing is tied to anger and frustration, according to Timothy Jay, professor and author of the recently released survey, Utility and Ubiquity of Taboo Words.  During difficult times, that percent can increase, as different people react differently to the stress of everyday life.  According to Jay's paper:

A set of 10 words that has remained stable over the past 20 years accounts for 80% of public swearing. Swearing is positively correlated with extraversion and Type A hostility but negatively correlated with agreeableness, conscientiousness, religiosity, and sexual anxiety.

And you thought your swearing didn't have anything to do with your personality, right?  And employers, now more than ever, may want to give that "no-cussing" policy a second look!

Oh, and if you want some proof of the increasing presence of the F-word at work, see our prior post on the Anchorwoman busted on camera using a whole lot of 'em!

Employee theft is on the rise.  This is not terribly hard to believe in light of the current economic forecast.  When the economy heads south, crime generally and theft in particular, escalate, so it's no surprise that theft in the workplace follows that trend. 

Jon Hyman, of the Ohio Employer's Law Blog, discusses the increased rate of employee theft in the context of employer's use of lie-detector tests.  (Jeez, can this guy make a connection or what??)   For an outstanding overview on the issue, see Jon's post, A Primer on Employee Polygraph Testing, in which he discusses the ins and outs of the Employee Polygraph Protection Act of 1988. 

Delaware employers should be aware, though, of the state-specific requirements and prohibitions in this area.  The state statute (19 Del. C. Sec. 704), provides that an employer may not, "require, request or suggest. . . or shall cause, directly or indirectly, any employee or prospective employee to take a polygraph, lie detector or similar test or examination as a condition of employment or continuation of employment."  Unlike its federal counterpart, the Delaware Polygraph statute provides no exceptions to the general prohibition against the use of lie-detector tests by employers. 

And, in case you were wondering, yes, there is a state-court decision interpreting the statute.  In Heller v. Dover Warehouse Market, Inc., the Superior Court denied an employer's motion for summary judgment, finding that, whether an employee's consent to take a polygraph could be a valid waiver was an issue of first impression.  Referencing case law from Maryland, Pennsylvania, and the Third Circuit Court of Appeals, the court found that the test to determine the validity of the employee's consent:

depends upon a jury determination of whether the waiver was compelled as a condition of continued employment. Under this test, if the jury finds the plaintiff was required to sign the waiver as a condition of employment, then the waiver is invalid.

This law has been around long enough that most employers operating in the State are cognizant of its prohibitions.  But, in light of the increasing incidences of workplace theft, this is as good a time as any to review it.  The key for Delaware employers is this:  polygraphs and lie-detectors cannot be used for employees--even in the course of a theft investigation.

I spoke about Paid Time Off (PTO), Systems during a recent audioconference.  Following the seminar, I received the following question from a participant. I imagine many others have had similar concerns about making the switch from a traditional time-off system, where vacation, sick, and personal time are all separate and treated differently, to a PTO system, where all time off is lumped together in a "bank" from which the employee can withdraw, regardless of the reason. 

Q:  We are considering switching to a PTO bank for paid time off.  We discovered that we have some employees who have built up huge banks of personal and sick time that we have traditionally allowed to be carried over from year to year.  Until recently, we "bought back" sick time at the end of the year, so long as the employee had at least five years of service and had accrued a minimum amount of sick time.  Now, we pay out unused vacation and personal time but sick time is forfeited.  As we plan our PTO policy we wanted to limit the carryover of PTO to 10 days (80 hours) at the end of our fiscal year.

Can you provide me with examples of what other companies have done when implementing a PTO system to handle situations where people have extremely large banks of time to be converted to PTO?

A:

Many employers decide to reduce the amount of hours that may be paid out when they switch to a PTO system because the understanding is that PTO is a richer benefit.  So the first thing to do is to determine whether you will permit payout or rollover at all.  (Note that the laws vary on the permissibility of "use it or lose it" policies from state to state.)  Once you establish a maximum number of hours that can be carried over into the next fiscal year, you'll have to decide what to do with any time in excess of the minimum.  There are a number of viable ways to handle these excess hours.  If possible, try to consider allowing employees to choose from several options.  Here are just a few:

1.  Pay out cash for the PTO hours over the maximum number at a discounted rate, similar to your buy-back plan. 

2.  Designate the excess hours as sick-leave-only time.  This would never be paid out or rolled over from year to year.  But if an employee has reason to think he or she may need the sick time (for example, for maternity leave), this would be a very desirable alternative.

3.  Forfeit any time above the minimum.

4.  Permit a certain amount of hours to be carried over based on the length of service; i.e., the longer the individual has been employed, the more time he or she may carry over.

Employers host holiday parties for a variety of reasons and, sometimes, for no reason at all.  The holidays are a time of increased stress, though, as well as cheer and merriment.  Combine stressed employees, alcohol, and an event hosted outside of the office, and, wouldn't you know it, a whole string of liabilities seem to pop up.  Employers and employees alike can access a tremendous amount of resources without ever leaving the office. 

Here are some posts from the blogosphere to get you started:

• Holiday Office Party Do’s and Don’ts at HR News & Views Blog (originally posted at www.quintcareers.com)

• The Office Holiday Party In This Economy at the Job Bored talks about unusual reasons that you should attend your company's holiday function this year.

• Monster.com talks about the shift away from holiday parties towards charitable giving this year in Are Office Holiday Parties Appropriate in a Recession?

•  

  About.com's F. John Reh advises readers How to Survive The Annual Holiday Party and, for the overachievers in the group, How You Can Really Shine At The Office Holiday Party.
• The California Employer's Association gives sobering advice on what can happen if things aren't all merry and bright at the corporate get-together in Professionalism and the Holiday Party.
• The Labor Law Center's post, Employers Limit Liability at Holiday Parties, gives us some very serious (and somewhat extreme) examples of what can go really, really wrong at a company-sponsored party.
• George's Employment Blawg maintains that the outlook isn't as grim as we may think, at least not for small businesses in,  Despite Economy, Small Businesses Plan Holiday Parties.
• Connecticut Employment Law Blog and Pennsylvania Labor & Employment Blog each have posts on how to manage this year's corporate holiday festivities written from the legal perspective in Holiday Office Parties: What Issues Should an Employer Be Considering? and  Managing the Holiday Cheer at this Year's Office Party.
• The U.S. Department of Labor's (DOL) Working Partners provides tips for how to help to ensure a safe and sober workplace party.

Employee handbooks often include an ethics policy that regulate the giving and receiving of gifts.  These "gifting" policies are not intended to regulate gifts among coworkers as much as the exchange of gifts with vendors, clients, and potential customers.  The provisions of gifting policies are dictated, in large part, by corporate culture. How restrictive your policy should be will be determined by a variety of factors, including how much direct interaction employees have with vendors and customers. 

For employers who may be considering implementing an ethics policy for gifting, the rules for federal employees are a good starting point.  The general rule for federal personnel is that supervisors may not accept gifts from subordinates or personnel who receive less pay.  But there are exceptions to the rule.

During the holidays, federal supervisors may accept gifts from their direct reports so long as the value of the gift is $10 or less.  Cash gifts are not permitted in any value.  The opposite is true when it comes to gifts from supervisors to subordinates--no restrictions apply.  Nor are there restrictions on personnel gift giving between peers.

These rules do not apply to office gift exchanges so long as gifts are chosen at random or recipients are able to trade gifts.  There are no limits on gifts here since the gift buyer does not know who will eventually receive the gift.  But, if the gift exchange is not random, i.e., if names are drawn in advance, the gift value rules apply.

The rules for gift-giving with contractors are only slightly modified.  Federal employees can accept gifts up to $20 in value--no cash gifts may be accepted.  Federal employees who want to give a gift to a contractor must first check with the contractor to be sure he or she does not have any ethics rules that would preclude them from accepting the gift. 

There are also rules regulating the ever-popular office holiday party.  Supervisors can participate in the office party and can accept food and refreshments when those items are being shared by others.  Supervisors can also contribute to the cost of the party.  And, if the subordinate attends a function at the home of a supervisor, the subordinate may give a host or hostess gift of the type and value customarily given.  Supervisors and subordinates can accept an invitation to the other's residence for a holiday party without restriction. 

One prohibition that seems grounded in common sense is the rule prohibiting federal employees from soliciting money from other employees or from contractors for the purpose of buying a gift for a supervisor.  Group gifts are limited to infrequent (as opposed to annual) occasions, such as baby showers and retirements.  And even then, contractors may not participate in the gift giving.

These rules may seem extreme when applied to your workplace.  But they're a good starting point for ideas on just how restrictive such policies can be.  These rules also point out some of the potential areas of concern for employees who may be uncomfortable with the gift-giving and party-circuit traditions in the office environment.

Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of "What Not to Wear to Work" is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here's a bit of reassurance that you are not alone.   

Four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.  Three of the four were suspended for their refusal to comply with their employer's demand that they come to work "with their hair properly cut."  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination--the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

Savvy employers know the potential value of a sexual harassment policy.  Without an effective harassment policy, employers may not avail themselves of the most common (and successful) defense.  Employers take pains to ensure that their sexual and other types of harassment policies are thorough, are communicated to employees, and are capable of remedying the conduct as promptly and effectively as possible.  

So you can imagine the disappointment of Temple University when the Court of Appeals for the Third Circuit recently struck down the University's sexual harassment policy.  The court held that the policy was overly broad and improperly infringed on the free-speech rights of students.  Public employers should heed this warning--an overly broad harassment policy runs the risk of being invalidated.

And are you wondering what it was that the plaintiff claimed he could not say because of the sexual harassment policy?  The former graduate student who filed the lawsuit claimed that the policy prevented him from expressing his opinions about the role of women in the military.

The plaintiff, Christian DeJohn, was enrolled in Temple's Masters program, where he was pursuing a degree in Military and American History.  The topic of DeJohn's masters thesis was the role of women in the military.  DeJohn argued that the policy restricted his ability to voice his opinions.  After DeJohn commenced his litigation, Temple voluntarily amended the policy.

The Third Circuit found two problems with the school's sexual harassment policy.  First, the policy, which prohibited "all forms of sexual harassment," specifically targeted “expressive, visual, or physical conduct of a sexual or gender-motivated nature when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . of creating an intimidating, hostile, or offensive environment.”  The problem with this language is that the policy barred such conduct regardless of whether it actually had such an effect.

Second, the Court found that the language of the anti-harassment policy prohibited too wide a range of activities, noting that the use of words such as "'hostile,’ ‘offensive,’ and ‘gender-motivated’" were so broad and subjective that they could be applied to just about any speech that is "gender motivated" and that someone finds offensive. 

The current rage in the public sector is the four-day work week. The idea of a compressed work week has caught on in cities and towns across the country and, for now, in one state (Utah), though it’s not hard to imagine that other states will follow in the future. The private sector has not been as enthusiastic about the idea, or at least so quick to act. 

There are some fundamental questions to consider before deciding to convert to a compressed-schedule workweek. Executive management will want to know the answers to these questions, as well, so it’s best to consider them in advance. If you feel comfortable with each of the issues below, then you are likely able to sufficiently design a workable policy.

Defining Purpose

What is the purpose of offering a compressed workweek? Is it because of the organization’s emphasis on work-life balance? To help employees bear the increased burden of the costly commute? Is the focus on the reduction of energy consumption and the desire to reduce the company’s carbon footprint? Or is it an innovative approach to increased productivity and efficiency?

Outlining the Scope

What is the basic offering of the program? In other words, what is a “compressed workweek”? Currently, the four-day, ten-hour-per-day option is most popular. But that’s not the only option. There is the 3-day, 12-hours-per-day option, or the 80-hour-per-9-days alternative.

Also, is this a trial program intended to last on a temporary or probationary basis? Or is this the “real deal,” intended to be a long-lasting option for future employees?

Determining Eligibility

Who is eligible to apply for a compressed workweek schedule? Is the option available to full-time and part-time employees? Is there a minimum length of employment that must be completed before the option becomes available? All job positions and pay grades? All facilities or only certain facilities? Is there a limited number of persons per unit or department that will be permitted to switch to a compressed schedule, after which, no requests will be granted? Can employees combine a compressed workweek with other flexible arrangements, such as telecommuting or job-sharing?

Submitting a Request

How should an employee go about making a request for a compressed workweek? (See 5 Steps Toward a More Flexible Workplace for details on ways to make the request-submission process most effective). How will requests be considered? Is there any preferential consideration given to employees with more seniority, for example? Or with the best performance evaluations? What factors might prevent an otherwise eligible employee’s request from being granted? Operational factors? Workload? Performance history?

Impact on Compensation and Benefits

How will holidays be compensated when they fall on the employees’ normally scheduled day off? If a holiday falls on a normally scheduled workday, will the employee be paid for 8 hours or 10?

Terminating the Program

What if an employee desires to return to a “traditional” schedule? Is there a process that must be followed? Is this considered a request for permission or is it awarded as a matter of right without any “permission” being awarded? How much notice will be required? And what if the employer needs to terminate the program? What are the conditions that could cause this to occur?

Reviewing the Success of the Program

How often will the program be reviewed? Will it be reviewed on a company-wide basis or just on an individual level? Will the employee be involved in the review process? What about the employee’s team members? What factors will be considered?

Previous Posts on Alternative Schedules and Compressed Work Weeks

Should a Four-Day Work Week Be Mandatory*

It's Saturday Today in Utah: 4 Day Work Week

Alternatives to the Four Day Work Week

Popularity of the 4-day Week Continues to Grow

Will Four-Day School Week Push the Four-Day Work Week Trend?

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic

More and more employers are recognizing the value of offering flexible-schedule options to their workforce According to the recently released Top 50 Law Firms for Women, even the legal industry is putting a premium on flexible options as a way to retain valued employees. At first, many employers want to approach flexible schedules and alternative work arrangements on a case-by-case basis. And, although this is a good way to find the best fit for your organization, it is also a potential hotspot for employees to feel they’ve been treated unfairly when compared to others who made similar requests. 

There are several ways to ensure that you don’t lose the positive benefits of your initiative as a result of disorganization or poor planning when accepting these requests. Here are five of the fundamental characteristics of a start-up flexibility program.

1. Outline a formal business-proposal approach. Require employees to submit a proposal describing their request. Have them clearly define the logistics of their proposed work arrangement, including how they will complete their work, how they will monitor and safeguard their productivity levels, and how their request would impact other aspects of the business, both negatively and positively. Communicate these requirements to all employees—don’t wait until you are approached with a request. If everyone knows what is required, you don’t risk dissuading some deserving employees who are intimidated by the unknown.

2. Create a specific review mechanism. All requests should be reviewed as a matter of course. Even if they are not likely to be implemented, every request for flexibility should be reviewed in the same manner. This will prevent complaints about favoritism and inequality. This is particularly important for the employee whose request is granted so she is not ostracized by others whose requests were denied.

3. Take it slow. As a matter of policy, implement any new flexible arrangement only on a temporary, trial basis. Communicate that the testing period will last six months and establish checkpoints for review and re-assessment throughout the trial period. As with any work arrangement, success is viable only where everyone knows what to expect from others and what will be expected of them. Will the employee be required to attend the monthly team meeting, which is held on Fridays, when her new arrangement has her working from home on Fridays? Any agreement will be successful only to the extent that all parties get what they bargained for.

4. Make it a team process. Take the proposal to the employee’s team members. Preferably, the employee can present her ideas to her coworkers and solicit feedback and suggestions individually. Using that feedback, she can tweak her proposal and present it again, this time with any feedback and suggestions going directly to decision makers.

5. Remember that this is a custom fit. Employees who have not demonstrated self-sufficiency and initiative should not necessarily be the first to receive special work arrangements. If an employee traditionally has been undependable or has required more hands-on management and coaching, then the flexible arrangement may not be a good fit. Be sure to consider the individual’s demonstrated work habits when customizing an alternative work arrangement.