Beachboard, who is a shareholder in the Los Angeles and Torrence, California offices of national employment law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C., shared his tips on NLRB and sexual favoritism at the SHRM Annual Conference and Exposition held recently in Atlanta, Georgia.
Employees who are chastised or disciplined for their conduct often try to defend their actions by claiming that they are “just exercising First Amendment rights,” but most employees don’t have such rights, Beachboard explains. Employees of public employers generally do have those rights, but by and large, employees of private companies have no rights to free speech.
One way to look at it, says Beachboard, is that their right to say is protected, but their right to a job is not.
However, he notes, there are laws that limit employers rights to control employee speech.
Most prominent of those laws is the National Labor Relations Act’s Section 7, which protects an employee’s right to engage in concerted activity to discuss wages, hours and other terms and conditions of employment. Some state laws also grant similar rights, such as Colorado’s wage discussion statute.
Don’t be misled by assuming that “concerted activity” requires more than one person, says Beachboard. A single person’s comments may be protected if he or she is speaking on behalf of others.
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Employers can count some limits to employee behavior, including bans on:
Some states have laws that may protect certain political speech outside the workplace. For example, California and New York have laws prohibiting termination for lawful, off-duty conduct.
Many companies have non-solicitation policies, but employers are often not good about enforcing the policies when it comes to, for example, Girl Scout cookies, says Beachboard. That can open the door for union solicitation.
The non-solicitation policy must be confined to work time, says Beachboard. Define work time.
Typically, work time includes time during which employees are engaged in the performance of their work duties or responsibilities. It excludes meal breaks, rest periods and/or any unpaid unspecified period during the day.
Your policy should clarify that it covers employees initiating the solicitation and employees to whom solicitation is directed.
Beachboard notes that there is a specific exception for United Way. You may allow solicitation without weakening your policy.
Generally, an employee cannot claim that a supervisor’s favoritism toward someone he or she was dating constitutes sex discrimination (although some courts have found otherwise in certain circumstances).
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Beachboard sees the following options in adopting a fraternization policy:
He recommends the following:
Consensual personal relationships of a romantic or sexual nature between co-workers who are not in a direct or indirect supervisory relationship are not of concern to the Company unless conduct associated with that relationship constitutes sexual harassment or discrimination, affects an employee’s job evaluation or treatment, or interferes with productivity or harmonious work relationships within the workplace.
Consensual dating relationships (including relationships of a romantic or sexual nature involving married or unmarried employees) between a Manager and someone the Manager directly or indirectly supervises generally are inappropriate in our workplace, inconsistent with the Company’s management philosophy as well as the Manager’s role and responsibilities, and can be at odds with the Company’s goal of a workplace free from unlawful harassment and discrimination.
In tomorrow’s Advisor, Beachboard’s recommended computer usage policy, plus an introduction to the indispensable 50x50—50 employment laws in 50 states.
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