I’ve previously talked about Martin Luther King Jr. (MLK) day in prior posts (including way back in 2008!).

But this year, I was curious — have any race discrimination claims used evidence relating to the day to support a claim?

Turns out there have been a few.

One of the stranger ones was a claim by a bartender that he wasn’t rehired after being terminated by his employer that was decided by a federal court several years ago.

As allegedly “direct” evidence, the bartender pointed to a conversation that occurred on MLK Jr. Day in which he was asked whether he wanted the night off “because it was Martin Luther King Jr. Day holiday”.

According to the bartender, the request was made so that a supervisor’s son, who also worked as a bartender could work an additional shift.

The bartender claimed that the inquiry “demonstrated racial prejudice” because the supervisor “could have asked him to give up his shift to her son without even mentioning the Martin Luther King Jr. holiday”.

The federal court reviewing the matter disagreed rejecting the notion that this comment — made many months before the alleged decision — was direct evidence. And it noted that it was probably an isolated remark. Nevertheless, in the context of the case, the court rejected the employer’s motion for summary judgment — sending the case instead to a jury.

So, not exactly the most illuminating of cases.

Instead, let’s again reflect on the legacy of Dr. King.  His words and actions continue have deep meaning today.  

2016labordayWhy do we celebrate Labor Day?

And should it be celebrated on a Tuesday instead?

It’s one of those holidays that we celebrate, but my guess is that most people have no idea on the answer.  But several (many?) years ago, I touched on this on the blog and I thought it would be fun to resurrect some of those facts.

Indeed, Slate magazine had a good explainer way back in 2010 on the subject.  Turns out Grover Cleveland has a lot to do with it but its origins go back even further than that.

Though President Grover Cleveland declared Labor Day a national holiday in 1894, the occasion was first observed on Sept. 5, 1882, in New York City. A parade was organized by the city’s Central Labor Union, a branch of the Noble Order of the Knights of Labor, a secretive labor union founded in 1869 by a clique of Philadelphia tailors. Historians still debate over whom, specifically, to credit with the idea of a holiday dedicated to the workingman. Some say that Labor Day was the brainchild of Peter J. McGuire, co-founder of the American Federation of Labor. Others argue that Matthew Maguire, the CLU’s secretary, was the holiday’s mastermind and that he doesn’t receive proper credit because he ticked off the mainstream labor movement by running for vice president on the National Socialist Labor Party ticket in 1896.

According to Ted Watt’s The First Labor Day Parade, the September date was chosen because it coincided with a Knights of Labor conference in New York, thus guaranteeing a sizable turnout for the festivities. Though the event wasn’t particularly festive, at least by today’s standards: It resembled a protest far more than a parade, with CLU members required to march in support of the eight-hour workday. (Those who ditched faced fines.)

The U.S. Department of Labor’s website delves into the controversy over how the holiday started as well with this background explainer page too.

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

The most fascinating part to me was that it was first celebrated on a Tuesday!

But now, every year, the USDOL devotes new webpages to this day.  And it even posted a video about the work it is doing on the subject. 

And how did such a holiday then become the traditional end to the summer season? Well, I’ll leave that to the experts. But in the meantime, enjoy this list of top 10 workplace songs (plus some alternates).  And be sure to check out the comments on the post where my labor law friends post a “union-friendly” list too including “Bread and Roses”.  

Lucan_J_WebIt’s mostly a coincidence that my colleague, Jarad Lucan returns today with a post on a favorite topic of ours: Holiday parties.  While most of it isn’t groundbreaking (holiday parties haven’t changed all that much over the last decade), Jarad really focuses in on the key issues.

So, enjoy your holiday parties over the next few weeks at work. Just be sure to follow the rules. 

Holiday parties are a great way for employers to boost morale and bring employees together to celebrate the season and the past year’s accomplishments.

However, if not properly planned, a holiday party may bring an employer a special gift served by a less than jolly state marshal or process server.

When preparing for a holiday party, employers should take steps necessary to guard against potential legal pitfalls, such as sexual harassment claims, alcohol related accidents, workers’ compensation claims, and wage and hour risks.

danceoffSexual Harassment:

Before the holiday party, an employer should review its anti-harassment policy (and if you don’t have one by now — really?) to ensure that it addresses employer sponsored functions.  If a policy does not specifically cover employer sponsored functions or social events, an employer should consider amending the policy.

In the alternative, an employer can remind employees prior to the party, that its anti-harassment policy applies and provide employees with examples of conduct that is considered unacceptable, even at a party.  An employer can also remind employees that any gift exchanges or holiday customs should be proper for the workplace and not include offensive items or behaviors, even if meant as a joke.

While it’s ok to allow an employee to listen to “I Saw Mommy kissing Santa Claus” (at a reasonable volume level),  it’s just not ok to allow an employee to hang mistletoe over his or her office door and try to act out that song.

In addition, to minimize the risk of any harassment claims, an employer should consider allowing employees to invite guests (depending on budget constraints).  An employee is unlikely to engage in harassing behavior if accompanied by a spouse or significant other.  Setting the tone of the party in advance can help root out unwanted sexual advances and inappropriate activities.

Alcohol-related Accidents:

Obviously, the simplest way to reduce the risk of alcohol-related accidents is to not serve alcohol at a holiday party.   But that might be considered by some to be going overboard. (You can just hear it now — “The lawyers ruining our holiday party — again!”) If, however, the goal is to avoid dampening the “holiday spirits,” an employer may want to hold its party at an establishment with professional bartenders who know how to handle and limit the amount of alcohol consumed by any party guest.

For those employers that hold their parties at their place of business, consider hiring a professional bartender rather than allowing guest to self-serve.  An employer can also instruct any caterer or bartender to limit the amount of alcohol served and to refuse service to anyone who appears to be intoxicated.  An employer can also limit that amount of drinks consumed by employees by, for example, utilizing a drink ticket system and limit the alcohol to beer and wine.

If all else fails, an employer should consider providing transportation for employees.  Lastly, an employer should review its insurance policies with regard to covering any liquor law liabilities.

Workers’ Compensation Issues:

If an employee is injured at a holiday party, an employer may be able to limit is workers’ compensation liability by making very clear to employees that the event is completely voluntary.  In addition, it should be made clear that the holiday party is not for business purposes and no work is expected to be done while at the holiday party.  While not necessary, this may be one reason to consider hosting any holiday party outside of the normal place of business.  If that is done, however, ensure that the venue provider has proper insurance to protect against any injuries that may occur.  In any event, an employer is best served by not encouraging activities like dance-offs, which can lead to all kinds of physical (and perhaps emotional – not covered by workers’ compensation laws) injuries. We all remember the dancing on Seinfeld, right?

Wage and Hour Risks:

It should come as no surprise that our wage and hour laws require an employer to pay employees for their time spent working.  Thus, if a holiday party is held after work hours and is made mandatory for all employees,  an employer has to pay employees to be there.  If this results in an employer’s non-exempt employees working more than 40 hours that week, those employees must be paid overtime for attending the party.

Accordingly, an employer should: (1) inform employees that attendance at the party is voluntary; (2) refrain from engaging in any business during the event, including speeches about the how well the employer is doing; (3) refrain from distributing bonus payments; and (4) avoid requiring certain employees from performing functions meant to benefit the employer, such as serving in the distinguished role as the mistletoe or dance-off police.

Happy Holidays everyone!

Have you hit the target with your apologies?
Have you hit the target with your apologies?

The Jewish holiday of Yom Kippur is quickly approaching.  While most people know that Jews are supposed to fast on that holiday (and ask G-d for forgiveness for their sins), one of the other traditions of the holiday is that Jews are supposed to apologize to all those we have wronged in the previous year.

I must confess I hadn’t thought about that much until I listened to a great podcast recently from Unorthodox, which brought in the publisher of “SorryWatch”, a blog about the art of the apology, to talk about saying you’re sorry.

(And another confession: Sure, I have this blog on employment law in Connecticut — talk about niche! — but the brillance of a blog devoted to apologies is divine! Seriously, it is just an awesome read.  They have lots of posts on why an apology is meaningful.)

The podcast was a terrific listen for those who are, and are not, Jewish.

It got me to thinking about the art of the apology in the workplace.  Now, I’m not the first one to write about this on an employment law blog. My friend, Molly DiBianca from the Delaware Employment Law Blog, touched it with her three rules for work apologies: Own It. Don’t Overdo It. And Offer a Solution.

The Harvard Business Review has its own advice on the work apology.

[L]eaders should not apologize often or lightly. For a leader to express contrition, there needs to be a good, strong reason.

But in the right way, an apology can help resolve workplace disputes as this post from the JAMS ADR Blog details. Indeed, in mediation, there are ways to use a mediator to get to an apology as well:

Formal face-to-face expressions of regret and responsibility,
while potentially powerful, are rare. By the time the parties
explore settlement, the animosity generated by their litigation
makes it difficult to express anything directly other than
hostility.

Communication through a neutral is easier. Messages
can be passed to the other side, such as an employer’s
regret that an employee’s skills were not better utilized, a
manager’s admission of ineffective coaching or a supervisor’s
acknowledged failure to appreciate the workplace hostility
experienced by an employee. Acknowledgement of shared
responsibility for the failure of the employment relationship,
coupled with empathy for the hardship caused by the
termination, can convey the employer’s respect for the
terminated employee. Once the employee feels respected
and validated, his or her focus can shift from challenging the
employer’s decision to moving on.

Reference letters can substitute for apologies. Positive,
factual statements about the employee (excerpted from past
performance reviews or deposition testimony) communicate
respect and confirm the value of the employee’s contributions.

But I liked the advice given in the podcast. The five-step approach to the apology.

  1. Say you’re sorry.
  2. Say the thing you are sorry for. (As an aside, this is notoriously hard for my kids.)
  3. Say you understand the import of what you did.
  4. Make amends.
  5. Figure out what steps to take so it doesn’t happen again.

It’s not a perfect list, but it’s a pretty good step to start.  Workplaces aren’t always about being right; sometimes, it’s saying you’re sorry for the little things, to avoid bigger things down the road.

My colleague, Marc Herman, returns today with a holiday-themed post filled with — workplace safety issues? Read on.

Holiday season shopping . . . the home to nostalgic tunes, perpetual lines, frenzied bargain hunters, overflowing parking lots, and OSHA.

For those who can’t remember your government acronyms, it’s the United States Department of Labor’s Occupational Safety and Health Administration

Were you thinking, perhaps, of Santa instead?

As retailers get in full swing shopping extravaganza mode, OSHA ––a federal agency charged with regulating the health and safety of employees in the workplace–– has been issuing press releases noting that they are keeping a close eye on the wellbeing of retail employees this holiday season.

In a recent one, OSHA forewarned large retailers of the acute dangers faced by retail employees this holiday shopping season “if the proper safety procedures are ignored.”

(For those who enjoy the Internet’s dark side, you can also check out the “Black Friday Death Count.”)

The warning comes six years after a Walmart employee was tragically trampled to death amidst a mob-like rush by frantic, bargain-hungry, shoppers on Black Friday; receiving a citation for “inadequate crowd management,” Walmart Stores, Inc. received a $7,000 fine from OSHA.

Emphasizing the risks posed by ruthless shoppers, OSHA has provided major retailers with “Crowd Management Safety Guidelines.”

Those guidelines implore retailers to adopt measures such as: providing trained security personnel, having emergency procedures in place, and ensuring that emergency exits remain unlocked and accessible––undoubtedly pragmatic advice.

Ultimately, though, perhaps this will be a relic of a by gone era.  The crowds at Black Friday this year seemed the thinnest in years. 

It seems that perhaps Santa is doing more of his shopping on the internet from the warm confines of the North Pole.

What is it about the holiday party that makes otherwise decent, hard-working people lose their mind?

Alcohol is certainly the main reason, in my view. Open bars are invitations to lots of craziness. (Just ask Katy Perry.)   Since it is unlikely (and unrealistic) that all companies will move to “dry” parties (though some have moved to just beer & wine), employers will continue to have deal with employees behaving badly.

Over the years, this blog has received comments from people who question whether their employer can REALLY fire them over doing silly things at an off-site, after-hours company party.  My favorite is from the employee who was caught not wearing any underwear and was fired.

And employers have asked the same thing (though, admittedly, not about the underwear).

With very few exceptions, the answer is “yes”; employers can fire employees for poor behavior at a holiday party. It’s a company event and a certain level of decorum is expected.  Indeed, employers who fail to curb and regulate such behavior open themselves up to a sexual harassment lawsuit.  (I covered this extensively in a post last holiday season.)

So, what are some tips for employers to follow? Well, several other blogs have already touched on the subject this month and they’re worth a read.

And what else should you avoid? A suggestion from last year still applies: No Elaine Dancing.


 

For several years now, I’ve been posting about Martin Luther King Jr. Day and the impact in the workplace.  (And as Ryan McKeen notes, it is properly called Martin Luther King Jr. Day).    Today I want to go a little deeper. 

Everyone knows about the "I Have a Dream" speech (and if you need a refresher, Jon Hyman has a good one here.

But that happened in 1963.  Dr. King still had several years of work ahead of him. 

Lost, a bit, in history is his efforts in this time period to move from basic civil rights, to the idea that — without economic and political power — the progress that was made would go no further.

In a speech delivered in August 1967 to the 11th Annual SCLC Conference, Dr. King indicated that his next goals were to ensure security for all Americans and fight poverty.

Now we must develop progress, or rather, a program—and I can’t stay on this long—that will drive the nation to a guaranteed annual income. Now, early in the century this proposal would have been greeted with ridicule and denunciation as destructive of initiative and responsibility. At that time economic status was considered the measure of the individual’s abilities and talents. And in the thinking of that day, the absence of worldly goods indicated a want of industrious habits and moral fiber. We’ve come a long way in our understanding of human motivation and of the blind operation of our economic system. Now we realize that dislocations in the market operation of our economy and the prevalence of discrimination thrust people into idleness and bind them in constant or frequent unemployment against their will. The poor are less often dismissed, I hope, from our conscience today by being branded as inferior and incompetent. We also know that no matter how dynamically the economy develops and expands, it does not eliminate all poverty.

The problem indicates that our emphasis must be twofold: We must create full employment, or we must create incomes. People must be made consumers by one method or the other. Once they are placed in this position, we need to be concerned that the potential of the individual is not wasted. New forms of work that enhance the social good will have to be devised for those for whom traditional jobs are not available.

It would be too easy to pigeonhole Dr. King’s work to civil rights and say, well, we’ve gotten far enough.  In Dr. King’s view, ensuring that employers were employing African Americans and other minorities was still part of the work left to do.

Through my work with the American Bar Association, I had the opportunity to visit the National Civil Rights Museum in Memphis a few years back.   It’s a terrific little museum that puts the entire movement into better perspective and gives you a deeper understanding that King’s work was not simply about where you could sit on buses.  It was so much more than that.

On this day, understanding King’s work is just one of the good ways to honor his memory.  If you’d like to understand more, you can read a speech or two here.  

(For more links, check out the special MLK-day edition of the Blawg Review as well. 

Over the last few years, I’ve been running a popular post about Columbus Day and the origins of the work holiday in Connecticut.  Indeed, it has its foundation as a federal holiday and is listed in the United States Code (5 U.S.C. Sec. 6103).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of the federal law.   So, if you work for a federal or state employer in human resources, or otherwise, you are likely going to have next Monday off. 

But it is also one of those holidays that private employers increasingly have decided do not merit a vacation day.  A survey from a few years ago showed that just  seven percent of employers in California, for example, give the day off to their employees. 

A common question that arises, however, is why? Why do employees for private companies not have to close on a day that has been designated by the federal government as a national holiday?

The answer is actually quite simple: Because Congress didn’t cover private employers in the law.  And state law doesn’t mandate any requirements on private employers either.  And so, while employees may complaint (perhaps rightly) about the difficulty of some child-care arrangements for some closed schools or otherwise, employer continue to have discretion about the days that it designates as holidays. 

Some employers have created their own work-arounds, allowing employees to take 1-3 "floating holidays" for days like this (or other types of holidays, like Yom Kippur or Three Kings Day).  That’s a sensible practice. But regardless, these types of policies should be discussed with employees so everyone knows what day is a holiday and what day isn’t.

Continue Reading Columbus Day is Coming. And Most Employers are Open.

Today is officially Columbus Day.  In prior years, I have written a post on the day and why most people are working today. Given the relevance of the post again this year, I reprint it below (with some slight updates).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of a federal law, 5 U.S.C. Sec. 6103. Besides being a federal holiday, its a state holiday too.  So, if you work for a federal or state employer in human resources, or otherwise, you have today off.  (As a result, lots of Columbus Day sales are going on too.)

If you are a private employer, you probably don’t give your employees the day off.  In fact, a recent survey in California pegged the number of employers giving off for Columbus Day at just 7.8 percent (it ranked above Lincoln’s Birthday and below Good Friday). 

Although companies have established holidays, why don’t employers have to close on a state or federal holiday? It’s pretty straightforward.  The U.S. (unlike some other countries) does not have any "national" holidays.  Indeed, just because the government recognizes a legal holiday doesn’t mean that private employers have to follow it. (Other examples include Veteran’s Day and, here in Connecticut, Good Friday). 

Legal holidays merely dictate what the government is going to do; how the rest of the country chooses to follow the holiday is up to them.  And yes, that means that you could conceivably make your employees work on Memorial Day or 4th of July (of course, if the company is a service industry, they probably require employees to work today).  But it probably isn’t good business practice as employees will flock to those employers who do give off those holidays.

What is a good business practice for Columbus Day now? I would argue that if the employer is going to designate 8-10 days a year for holiday, employees would rather one or two of those days be designated as a floating holiday rather than Columbus Day.   Giving your employees a choice of days is a terrific way to give an added benefit that has the advantage of allowing the employees an choice in their favor.  Thus, most employers just take a pass on designating Columbus Day a holiday. 

The Knights of Columbus, which is based in New Haven, Connecticut, would probably disagree.  But you can visit their museum to learn more about Christopher Columbus. Of course, don’t go on Columbus Day: the museum is closed.

Clip art licensed from the Clip Art Gallery on DiscoverySchool.com.

Although I’m heading out on vacation soon, PUBLISHED with written authorization of Kevin Duffy - NOT to be Reproduced www.kevinduffy.netemployment lawyers sometimes can’t resist a good employment law-related holiday cartoon. 

I recently came across this and believe you all will appreciate the humor in this as well. 

(Though it does remind me last year’s charges against a patron who was allegely a bit "frisky" with a mall’s Santa Claus.)

I asked the cartoon’s author, Kevin Duffy, for authorization to republish this cartoon.  After suffering without power for many days in New Hampshire, he graciously agreed to allow me to republish this. 

(Because he has given me an exclusive and limited license to publish, please do not copy it.)  

Given how long Kevin’s been without power, make Kevin’s holiday a little brighter by visiting his website which has some great material and instructions on how to contact the cartoon’s author. You can visit his site at www.kevinduffy.net.   You can even purchase some cartoons for the new year as well.

Happy Holidays.