Question 1

Is the EEOC still active under the current administration?

Accepted Answer

Yes. The EEOC is very much alive, and charges are being filed. The agency has shown an increase in aggressive investigations and recently registered its largest public settlement in almost 20 years. (04:41)

Question 2

Do my company's anti-discrimination policies need to be updated?

Accepted Answer

&nbsp;Yes. Policies and employee handbooks should be treated as living documents and audited annually to ensure compliance with recent legal changes. (02:45)

Question 3

Can we choose a job candidate based on their qualifications without risking a discrimination lawsuit?

Accepted Answer

Yes. You can and should choose the most qualified candidate. The key is to base your decision on objective, job-related criteria like experience, skills, and work history. The law is violated when a company uses these criteria as a pretext for a decision actually based on a protected characteristic like age, race, or gender. For example, it's legal to choose a candidate with more experience. It's illegal to reject a candidate with more experience because you assume they're "too old" for the team. (10:42)

Question 4

What is the Pregnant Workers Fairness Act (PWFA), and how does it affect our company handbook?

Accepted Answer

The PWFA requires employers to provide reasonable accommodations for pregnant employees. It's critical to update your handbook to reflect that in some cases, you cannot deny an accommodation for an obvious pregnancy even without a doctor's note. The standard for accommodation has been lowered. (16:09)

Question 5

Can we fire an employee who is out on workers' compensation?

Accepted Answer

Terminating an employee on workers' compensation is legally risky. It is generally more prudent to wait until they return or have reached maximum medical improvement, unless you can prove the position would have been eliminated regardless of their injury. (42:14)

Question 6

Is it okay to put a lactation space in a bathroom?

Accepted Answer

No. Under the Pump Act, the lactation space must be a private area that is not a bathroom. (18:44)

Question 7

Does our company need to put up labor law posters?

Accepted Answer

Yes. Employers should ensure they have up-to-date and legally required posters from various agencies (e.g., EEOC, FLSA, NLRB) displayed in a conspicuous place. (40:24)

Question 8

Should a manager make a complaint for an employee who is being harassed if the employee is not willing to?

Accepted Answer

Yes. Recent EEOC guidance suggests that an individual aware of a colleague in the same protected class being harassed may have standing to bring their own harassment claim, even if they were not the direct target. Employers should take all reports of harassment seriously. (21:58)

Question 9

What is the best way to handle an employee complaint?

Accepted Answer

It is important to have clear, well-documented, and consistently followed procedures for all complaints. Training for managers and an "open door" policy help ensure employees feel heard and that their complaints are taken seriously. (24:06)

Question 10

Why are employers becoming more reluctant to take public political stands?&nbsp;

Accepted Answer

Employers have become increasingly timid about advocating for political positions because modern public opinion is often split nearly 50/50. Taking a stand may appeal to one half of a workforce or consumer base while completely alienating the other half, potentially leading to massive losses in market value or dual boycotts from both sides of the political spectrum (02:38).

Question 11

Can an employer have a dress code that bans political buttons or apparel?&nbsp;

Accepted Answer

Yes, most current legal rulings suggest that an employer can implement a dress code that limits political paraphernalia in the workplace. This is often done to avoid the contention that arises when one group's insignia (such as Black Lives Matter) leads to demands for opposing insignia to be allowed as well (05:11).

Question 12

Can I fire an employee for complaining about their supervisor on social media?&nbsp;

Accepted Answer

There is no standard "yes" or "no" answer. If an employee's post is a "concerted complaint"&mdash;meaning it involves other employees and relates to working conditions&mdash;it may be protected under the National Labor Relations Act (NLRA). In such cases, the employer generally cannot discipline or terminate the employee for that speech (08:25).

Question 13

What is "concerted activity" under the National Labor Relations Act?

Accepted Answer

Concerted activity refers to group actions or complaints by employees intended for "mutual aid or protection" regarding their working conditions. Section 7 of the NLRA protects these rights, meaning employers cannot punish employees for exercising this form of free speech, even if a union is not involved (09:39).

Question 14

Can an employee be fired if their protest includes offensive or discriminatory language?&nbsp;

Accepted Answer

Yes. While a protest about working conditions may be protected, that protection can be lost if the employee uses speech that is egregiously offensive or violates the company's equal opportunity principles. A well-documented termination must clarify that the discipline is specifically for the unprotected, offensive portion of the conduct (15:30).

Question 15

Does the First Amendment protect free speech in a private workplace?&nbsp;

Accepted Answer

No. The First Amendment limits the government's ability to restrict speech and provides special protections for public (government) employees. It does not apply to private employers, though other laws like the NLRA or state-specific statutes might offer different types of protection (20:00).

Question 16

What is the best way to write a social media policy that is legally defensible?&nbsp;

Accepted Answer

A social media policy should be narrowly tailored to reflect legitimate and substantial business interests. To avoid "chilling" protected speech, it is recommended to include a disclaimer next to sensitive rules stating that the policy will not be applied to prohibit activity protected by Section 7 of the NLRA (21:08).

Question 17

Can I stop employees from posting flyers or messages around the office?&nbsp;

Accepted Answer

Employers have the right to control postings on their facilities. It is legally safer to have a policy that prohibits all postings on company property or confines them to a single, designated bulletin board. Allowing unmonitored postings everywhere can make it difficult to legally restrict controversial or union-related materials later (25:48).

Question 18

Am I required to take action if an employee posts something offensive off-duty?&nbsp;

Accepted Answer

In some cases, yes. If an off-duty social media post is discriminatory or creates a hostile work environment that carries over into the workplace, the employer may have a legal obligation to intervene to prevent harassment or reputational damage (28:14).

Question 19

What should I do first if I see a controversial post by an employee?&nbsp;

Accepted Answer

First, verify the source of the complaint and obtain a permanent record, such as a screenshot, of the post itself, as online content can be easily deleted or edited. Before taking disciplinary action, consider if the issue can be resolved through counseling or "browbeating," which carries less legal risk than termination (34:40).

Employee Handbook

Company Intranet Policies Raise Legal Issues

Dangers of Transcribing E-Meetings

Employer Asked Applicants to Swear They Are Not Going to Leave

Employers Should Be Careful Charging Smokers Extra for Health Coverage

Employers Should Be Careful in the Wording of Their Cobra Notices

How to Audit Employment Discrimination Laws Compliance

Issues of Employer Access to Employees’ Personal Devices Such as Cell Phones, Etc

Issues Regarding Employee Access to Their Personnel Files

Kirk’s Killing Cautions Employers To Consider Speech Policing

Recent Ruling Limits At-Will Provisions of Employee Handbook

Reflections: 2023 in Review

Would you like to receive timely legal alerts, upcoming webinar announcements, and the Employment Law newsletter in your email inbox?