CHAPTER 9

On-the-Job Rights and Responsibilities—Employees’ Dignity, Privacy, and Reputation

The rights and responsibilities between employers and employees concerning matters of dignity, privacy, and reputation in the workplace originate from four principal sources: (1) federal and state laws designed for employees’ protections against certain practices committed by employers; (2) in the public sector, the US Constitution; (3) common-law tort principles developed by the courts over time in response to various wrongs committed against employees by employers; and (4) individual employment contracts between employees and employers (see Chapter 3), as well as collective bargaining agreements between unions and employers (see Chapter 4). In this chapter we will explore the various rights of dignity, privacy, and reputation enjoyed by employees while in the workplace and their employers’ legal obligations to comply with them.

FEDERAL AND STATE LAWS

Discrimination in Employment

As earlier discussed in Chapter 2 of this book, interviewing, hiring, and other preemployment considerations that are prerequisites to the establishment of an employment relationship must comply with federal and state laws prohibiting discrimination in employment. Those same federal and state statutory obligations, however, apply with equal force throughout the resulting employment relationship once entered into. In addition to the Civil Rights Act (Title VII), employers must comply with numerous other antidiscrimination laws applicable to employment such as the Equal Pay Act (EPA), the Age Discrimination in Employment Act, amended by the Older Workers’ Benefit Protection Act (ADEA) and the Americans with Disabilities Act (ADA) (see Chapter 2). The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing these various laws.

As noted, these antidiscrimination laws apply not only during the hiring processes but also during the entirety of the employment relationship, including considerations for such matters as transfer, promotion, layoff, and termination from employment, as well as job advertisement, recruitment, testing, use of the employer’s facilities, training, benefits and leaves of absence. These laws generally prohibit not only intentional discrimination against employees but also practices that unintentionally have disparate impacts upon protected classes of employees. Many antidiscrimination laws apply to employers’ actions affecting not only their employees but also to independent contractors performing services on an employer’s behalves as well.

IN PLAIN ENGLISH

Disparate impact is a technical legal term used in labor and employment law referring to practices in employment, housing, and other areas that negatively affect one particular group of individuals more than another. The affected individuals must be of a protected class—for example, racial minorities or disabled individuals. This is true even though the rules themselves appear to be unbiased.

These laws make clear that employers may not legally retaliate against employees or applicants for employment who file discrimination complaints against the employer. If an employer is found to have unlawfully discriminated, it could be liable for lost wages and punitive and other damages, including attorneys’ fees.

Many states, as well as some cities and counties, have also passed laws that reiterate and expand upon the federal government’s protections against unlawful discrimination in employment. These local laws are often even more protective of employee rights than their federal counterparts. Additionally, some categories of employment discrimination not covered by federal law, such as those prohibiting employer discrimination based on sexual orientation, such as toward members of the LGBTQ+ community, may be covered by state or local laws.

Title VII

Title VII prohibits discrimination based on race, color, religion, sex, or national origin. With regard to religious discrimination, employers generally may not treat employees or applicants either less or more favorably because of their religious beliefs or practices. Employees cannot be forced to participate or not participate in a religious activity as a condition of employment. Employers must also reasonably accommodate their employees’ sincerely held religious beliefs and permit them to engage in religious expression while at work if employees generally are permitted to engage in other personal expressions while in the workplace. This law also requires the employer take steps to prevent religious harassment of their employees, not only by other employees and management but also by its vendors and even customers or clients. Title VII prohibits:

• National-origin discrimination including discrimination based on foreign accents and English fluency, as well as English-only rules, although there are exceptions if they are necessary for the safe or efficient operation of the business.

• Race-based discrimination including discrimination based on skin color, hair texture, and facial features, as well as harassment and segregation. It also includes discrimination based on a person’s marriage to or association with those of a different race.

• Sex-based discrimination including pregnancy, birth, and related medical conditions, as well as sexual harassment.

BREAKING NEWS ALERT. On June 15, 2020, in Bostock v. Clayton County, Georgia, the United States Supreme Court in a 6–3 decision announced a landmark ruling concerning Title VII’s prohibition against employment discrimination based upon “sex.” The Supreme Court majority opinion ruled that included within Title VII’s general prohibition outlawing discrimination based upon “sex” is discrimination against people who are homosexual or transgender. As noted earlier throughout this book, Title VII of the Civil Rights Act of 1964 has major application to employers both during the interview and hiring processes as well as once employees have been hired and are working for employers. Therefore, all of the earlier admonitions and recommendations discussing the phrase “sex discrimination” in employment, now apply with equal force to persons who are gay or transgender. For more complete information employees and employers may wish to seek legal counsel for advice concerning how the United States Supreme Court’s latest ruling in this important area affects the employment relationship.

The Equal Pay Act (EPA)

The Equal Pay Act, part of the Fair Labor Standards Act of 1938, as amended (FLSA), also prohibits sex-based discrimination in pay. It prohibits sex-based wage discrimination among persons in the same establishment who perform work under similar working conditions. Virtually all employers are subject to the EPA.

More information about Title VII and the EPA may be found at the following EEOC website: www.eeoc.gov.

Anti–Sexual Harassment

One of the legal obligations of all business owners is to create a nondiscriminatory work environment. Especially in this highly sensitive era of #MeToo, employer policies should be established prohibiting any discriminatory language (i.e., ethnic jokes or racial slurs) or other offensive language or activities, including sexual harassment.

Sexual harassment is one form of illegal sex discrimination, though harassment based on race and certain other characteristics also violates Title VII. There are two basic forms of sexual harassment in the workplace, (a) “quid pro quo” sexual harassment, and (b) “hostile environment” sexual harassment. “Quid pro quo” sexual harassment refers to either a harasser asking for sexual favors in exchange for some advantage in the workplace or a harasser penalizing another person for rejecting their sexual advances. “Hostile environment” sexual harassment, on the other hand, is more generalized in scope and occurs when a harasser creates or permits a hostile work environment concerning an employee’s gender through language, activities, and/or conduct.

IN PLAIN ENGLISH

Quid pro quo is a Latin term used in law to define an exchange of goods or services, in which one transfer is dependent upon the other. For example, exchanging sex for a promotion.

An employer is subject to vicarious liability to victims of sexual harassment due to its creation of a hostile work environment. For example, a restaurant owner will be found financially responsible for the actions and language of its supervisor that results in an employee’s injury, harm, or damage. If a supervisor has harassed or permitted harassment of an employee by a coworker, customer, client, or vendor, and this situation has led to the victim’s termination, relocation, or other negative consequences, the employer will be held liable for the discriminatory sexual actions of its supervisor. To avoid this form of liability, an employer must exercise reasonable care to prevent and promptly correct any harassment behaviors that are reported or otherwise become known to it. On the other hand, an employee who has experienced sexual harassment is obligated to take advantage of all preventive programs or policies offered by the employer. There is a host of training and other resources available to employers wishing to learn more about sexual harassment. Employers are also advised to consult an experienced attorney or their state employment division for further information on this dynamic and rapidly growing area of law (see also Chapter 7).

IN PLAIN ENGLISH

Reasonable care is a technical legal term that defines the duty owed in a particular situation.

Many states have enacted anti-harassment laws as well. California, for example, requires employers with fifty or more employees to provide certain sexual harassment training and education to supervisory employees. Details on California’s sexual harassment laws may be obtained at www.dfeh.ca.gov.

More information on sexual harassment is also available at the EEOC’s website: www.eeoc.gov.

The Age Discrimination in Employment Act (ADEA)

Federal age antidiscrimination laws apply to employers of twenty or more employees, as well as to government entities and unions. These laws provide that persons forty years old or older may not be discriminated against due to their age in connection with any term, condition, or privilege of employment, including hiring, firing, layoffs, job compensation, benefits, job training, assignments, and promotions.

More information concerning age discrimination in employment is available at the following EEOC website: www.eeoc.gov.

Disabilities Discrimination

The Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in public accommodations, transportation, telecommunications, and employment. The ADA applies to employers who employ fifteen or more employees. “An individual with a disability” under the ADA means a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or who is regarded as having such an impairment. Under the ADA, a qualified individual with a disability is someone who, with or without reasonable accommodation, can perform the essential functions of the job.

Reasonable accommodation must be made so that that a disabled job applicant or employee can perform the necessary and essential work of the position. Reasonable accommodations include making existing employee facilities readily accessible to and usable by disabled employees, including the acquisition or modification of equipment or devices, job restructuring, and modifying work schedules.

A business is not required to provide reasonable accommodations, however, if it will result in an undue hardship. “Undue hardship” under the ADA refers to an action requiring significant difficulty or expense when considered in light of factors such as the employer’s size and financial resources.

Under the ADA, complex rules apply to medical examinations and inquiries, so you should contact an experienced attorney for more information if you plan to make such inquiries or require any physical examinations of applicants for employment.

For more information concerning the ADA, refer to www.ada.gov. Many states also have laws that are comparable to or more restrictive than the ADA. You should check with an attorney in your state or its employment division to determine whether your state has this type of legislation and whether your business would be covered by it.

Zero-Tolerance (“One and Done”) Policies

A zero-tolerance policy, requiring immediate termination from employment for all acts of discrimination, incentivizes employees to be compliant with discrimination policies and best protect an employer from costly discrimination claims. A well-written employee handbook containing policies against sexual harassment, offensive behaviors, and the like is a good starting point (see Chapter 6). An employee handbook’s discrimination policy will apply to behavior, as well as oral and written (including electronic) communications. It will also include procedures that provide employees with a way to confidentially report problems regarding offensive or harassing behavior and will direct management on how to investigate and resolve the issues. The process should include an employee appeals procedure for any adverse findings. The complaint and appeals procedures should direct an employee to contact someone other than the employee’s immediate supervisor, such as a designated EEOC compliance specialist. This is because the immediate supervisor may be the person responsible for such alleged misconduct.

Employees should also be advised that both the complaints and appeals need to be in writing so that there can be no misunderstandings, although the first step is often verbal. A well-drafted antidiscrimination policy will state that the employer will, whenever possible, provide complaining employees and witnesses reasonable confidentiality. It should, however, be made clear that there can be no guarantee of confidentiality, because it may become necessary for management to disclose the identity and testimony of relevant parties in the event of a formal legal action.

It is also essential that employers provide employees with ongoing education with respect to employment relations, including harassment and discrimination, because this is a dynamic area of the law.

Physical Safety—OSHA: Workplace and Accessibility Standards

While no manufacturer would intentionally injure an employee, it may nevertheless be engaged in an industry or using processes that involves hazardous activities. It is not uncommon for manufacturers to use toxic materials. Employees of such manufacturers are often unaware of potential hazards that may result from their use of toxic materials while working. It is essential for employers to research the potentially toxic effects of all substances used in its manufacturing process and resulting products. Occupational Safety and Health Administration (OSHA) regulations require that all employers with hazardous chemicals in their workplaces provide labels and Material Safety Data Sheets (MSDS) for their exposed workers and train them to handle the chemicals appropriately. More information on this subject may be found at OSHA’s website: http://www.osha.gov/SLTC/hazardcommunications/index.html.

In short, there is a regulatory duty to advise and train employees with respect to hazardous substances in the workplace.

Congress and federal administrative agencies are active in the field of regulation of hazardous substances. Employers should also be aware that state workers’ compensation agencies and OSHA may have specific rules regarding an employer’s particular enterprise or industry. It is critical to obtain a lawyer’s assistance in determining whether any of these regulatory requirements apply to an employer’s particular manufacturing process or business. The labor department for the state in which the employer operates may also be able to provide information regarding applicable workplace regulations.

If an employment contract is used, a paragraph containing the required disclosures regarding hazardous substances and the employee’s acknowledgment of the known risks should be incorporated into the contract; see Chapter 3. A similar statement should also be included in any employee handbook; see Chapter 6.

While these documents may not provide a defense to an employee’s workers’ compensation claim, they would at minimum sensitize employees to the need for caution in working with toxic materials. Needless to say, employers should take all precautions possible to protect the health and safety of their valuable employees.

The Family Medical Leave Act (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) allows employees to take up to twelve weeks of unpaid leave each year for certain family or medical reasons if they have worked for the employer for a year and meet certain other eligibility requirements. FMLA must be followed by private-sector employers who employ fifty or more employees during the current or preceding calendar year and who are engaged in interstate commerce or any activity affecting commerce.

An eligible employee may take their twelve-week leave due to the birth and care of their newborn, a foster child being placed with the employee, to care for a spouse, child, or parent with a serious health condition, or to take care of the employee’s own serious health condition. FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that brings about a period of incapacity and/or requires intensive and continual medical treatment. It specifically includes prenatal care.

When the worker returns to the job, the job may be the exact job that the employee left or it may be an equivalent job—with equivalent duties, pay, benefits, and the like. The only employees to which this would not apply are “key” employees, whose absence from their positions will cause “substantial and grievous economic injury” to the employer.

There are certain notice requirements, as well as rules for requiring medical certification of the need for leave. Further information can be found at the Department of Labor’s website: www.dol.gov.

Many states have supplemental leave acts. Employers should consult with an attorney in their state as well as its state employment division.

THE US CONSTITUTION

Application of the US Constitution is generally limited to situations involving some form of “state action.” As a result, actions involving purely public-sector employers are not subject to the US Constitutional protections, whereas employees of federal, state, city, and county government entities are protected. Exceptions to the rule can occur, such as when a private-sector employer is acting as an agent of the government.

IN PLAIN ENGLISH

Employment by government entities has been legally defined in numerous cases as a property right, which is protected by the US Constitution and by the constitutions of the vast majority of states as well.

Pursuant to the US Constitution, in both the federal and public sectors employee privacy and reputation interests arise from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. First Amendment issues arise in cases involving (1) adverse employment actions such as discipline or discharge due to employees’ exercise of their political affiliations or beliefs, (2) employees’ employment status being adversely affected due to their engaging in spoken, written, or other forms of expression, (3) challenges to state statutes limiting the right of government employees to engage in partisan political activities, and (4) adverse employment actions due to employees engaging in private conduct that is viewed by employers as immoral or improper.

Fourth Amendment issues arise where federal and public-sector employees are subjected to unreasonable searches and seizures in their workplace, usually in the context of a government investigation into possible criminal violations.

Fifth Amendment issues stem from government officials seeking to compel employees to disclose information. Courts have concluded that as an employer, government officials can compel an employee to disclose information as a condition of maintaining employment so long as those disclosures cannot be used in subsequent criminal prosecutions of those employees by either state or federal authorities. It is, however, unconstitutional for the state to require as a condition of employment that a public employee agree to waive the privilege against self-incrimination. Where an employee refuses to answer questions that are focused specifically, directly, and narrowly on performance of his official duties, the privilege against self-incrimination does not bar the employee’s dismissal and the employee cannot insist on a grant of immunity from prosecution as a condition for answering those questions.

Ninth Amendment issues arise infrequently in limited cases involving potential privacy issues over rights retained by the people.

Finally, Fourteenth Amendment issues apply to due process requirements, such as initially being advised of the content of pending charges and provided copies of any documents in support of the charges. Also, the employee must be given an opportunity to respond, before depriving a public employee of any property right in the employee’s continued employment.

COMMON-LAW TORT LIABILITIES APPLICABLE TO AN EMPLOYER’S WORKPLACE

Every person possesses certain inherent rights protected by common law that also become applicable within the context of their employment relationship with an employer. When one of these common-law interests becomes damaged due to an employer’s action, a “tort” has been committed against the employee and the employer may be liable for damages unless its actions were justified or excusable. Torts may be either intentional or negligent.

IN PLAIN ENGLISH

A tort is defined as a wrongful act or violation of a right that may result in liability.

IN PLAIN ENGLISH

Common law is defined as law that is based on prior cases and court decisions rather than on legislation such as federal and state statutes.

IN PLAIN ENGLISH

An intentional tort is one in which the person committing the wrongful act knowingly does it. For example, purposely assaulting another individual by punching that person. A negligent tort is one in which an individual carelessly injures another. It involves situations in which the individual’s action falls below the acceptable standard and it does not require intent. For example, a driver would be liable for negligence when the driver speeds on an icy road and as a result is unable to avoided an accident. It would also include situations where a surgeon carelessly omits to remove a surgical apparatus when completing a procedure or an attorney does not timely file a required document.

It should be kept in mind in these instances that there are strong financial incentives for plaintiffs to seek to prevail on causes of action “sounding in tort.” Where plaintiffs prevail in establishing a tort has been committed by an employer, a potential award by a court may include special damages such as lost wages, general damages such as pain and suffering resulting from the injury sustained, and punitive damages. Because punitive damages are designed to punish the employer due to wrongdoings committed against its employees, they may greatly exceed the amount of special and general damages awarded to the plaintiff.

Privacy

Privacy rights may be found in one of the following two forms: (a) privacy rights concerning employee information collected by employers during the employment relationship including matters such as how that information was (1) obtained, (2) maintained, (3) utilized, and (4) disclosed to third parties; and (b) privacy rights concerning employee behavior while either on or off duty.

Defamation of Character

The common-law tort of defamation of character occurs whenever an employer communicates untrue information concerning an employee that causes that employee to suffer ridicule, hatred, or contempt. Most commonly, communicating an unfavorable performance evaluation or the reason for termination of employment may create liability for the employer if it is untrue and causes harm to the employee’s character. Defamation may occur when the information is either communicated in writing (libel) or when it is communicated orally (slander).

An employer may defend acts of defamation on the grounds that a conditional privilege exists to communicate employee information for legitimate business purposes. A conditional privilege may be lost, however, when an employer communicates information known to be false or communicates information with a reckless disregard for its truth or falsity. The conditional privilege may also be lost should an employer publish information more broadly than necessary for a legitimate business purpose or for some purpose that is beyond the interest the privilege serves to protect.

Employer communications to the media concerning employee information that involve matters of public interest may be conditionally privileged as well.

Employers have been found liable for defamation of character in many cases such as when:

• An employer falsely accused an employee of having AIDS and terminated the individual’s employment;

• A supervisor stated to other employees that a female employee had infected him with an STD, characterized her as a prostitute, and searched through her personal belongings;

• An employer communicated that an employee had been terminated for theft without verifying that the employee was actually stealing;

• An employer terminated an employee for poor work performance without conducting a proper investigation of substandard performance claims against the employee;

• An employer treated an employee as if the employee was dishonest by firing that employee, accompanying the individual to that person’s office to pack up the discharged employee’s personal belongings in full view of other employees, and then escorting the discharged employee off its premises;

• An employer terminated an employee based on a coworker’s statement that the employee was selling incentive items at a yard sale without allowing the employee to provide the accused employee’s side of the story or examining the employer’s records to determine whether the employee had reported the employee’s activities on the day of the yard sale.

Defamation of Character When Conducting Reference Checks

A common area that gives rise to defamation of character claims is when a former employer is asked to provide a reference by a former employee due to the employee’s application for employment elsewhere. When confronted with this potential situation, an employer must proceed cautiously to avoid becoming liable for defamation of character. The dilemmas posed to both the former employer and the prospective employer in this frequent situation are many. First, the prospective employer that seeks a reference from a former employer may be found liable due to negligent hiring should it fail to check the applicant’s references, particularly if the new position entails risks to others. Second, the former employer who is asked to provide a reference may be found liable if it fails to disclose information necessary for the applicant’s future licensure by a regulatory agency following employment. Third, the former employer that provides information to a prospective employer may be found liable if the reference contains any defamatory information that harms the applicant’s future employment opportunities.

IN PLAIN ENGLISH

There have been cases in which employers have been held liable for not checking the references of an individual who was a convicted sexual predator, and once hired was permitted to take care of children. The new employer failed to perform a background check before the individual was hired. The Boy Scouts of America has recently filed for bankruptcy protection because of the numerous lawsuits filed against it for similar problems.

Employers are customarily advised to only provide the following information when asked about a former employee: the employee’s date of hire, date of separation, position held, and possibly salary. If the former employee wishes the former employer to provide additional information then the former employee should be required to sign a release providing that the employee will not hold the former employer liable for any information contained in the reference. It should be cautioned, however, that such a waiver may not serve as a valid defense should the former employer be found to have intentionally defamed the applicant in the reference.

IN PLAIN ENGLISH

The release that many former employers use provides that the former employee authorizes the former employer to provide prospective employers with a complete and accurate description of the former employee’s work while employed by the former employer. This document should be prepared by an attorney and it should provide the former employer with protection for accurate and truthful statements that relate to the former employee’s conduct, skill, and ability while working for the former employer. This underscores the importance of having a complete and accurate employee file that would be available for reference.

Where references are provided in good faith and without malice or reckless disregard of the truth, a qualified privilege may shield both former and prospective employers from liability, because providing references and checking them carefully is responsible conduct of former and prospective employers committed in furtherance of protecting a public interest.

Invasion of Privacy

Both state legislatures and the courts have been active in limiting employers’ intrusions into private areas of their employees’ lives. The goal of these efforts is to (1) control employers’ use of collected information that is irrelevant, incomplete, or inaccurate, for purposes of its making employment decisions including hiring, promotion, compensation, and termination from employment, and (2) overseeing use of that information by third parties. The information concerning employees that is the focus of these intrusions into employees’ private area are (a) speech, (b) beliefs, (c) personal information, (d) associations with others, and (e) lifestyles.

Courts have found the following four types of unlawful invasions of privacy for which damages may be awarded against employers:

• Intrusion in an area where a reasonable privacy expectation exists, which courts have found in a variety of areas of employees’ lives;

• Appropriation of an employee’s name or likeness, done for an employer’s commercial advantage;

• Publicity given to an employee’s private life where employment information is disclosed that would be highly offensive to a reasonable person and it is not a legitimate public concern; and

• Publicity casting an employee in a false light that would be objectionable to a reasonable person.

Court decisions finding employers liable for damages in the area of invasion of privacy include, for example, the following:

• Employer letters regarding employee activities that were distributed more widely than was necessary;

• Displaying at plant safety meetings photographs depicting an employee’s “unsightly wound” on numerous occasions;

• Reading an employee’s personal mail;

• Interrogating an employee concerning dating an employee of a competitor;

• Harassing an employee for an interracial relationship;

• Conducting an improper locker search;

• Conducting an employee strip search;

• A supervisor yelling at an employee during a workplace altercation that the employee’s spouse had been having sexual relationships with certain people;

• Terminating employment for refusing to identify coworkers who used drugs after pledging confidentiality;

• Disclosing an employee’s mastectomy to numerous coworkers;

• Searching a long-haul driver’s motel room without the driver’s consent for a missing permit book where there was an expectation of privacy and no business was transacted in the motel room; and

• Subjecting an African American store clerk to daily searches for stolen merchandise.

Emerging issues in the area of employee privacy are found in employees’ use of technology including computers, cell phones, and GPS devices. Employers who provide such technology to employees for their business use, who in turn consent to their being monitored by their employers, have been found to be operating within their legitimate business interests. When doing so, however, employers must still comply with the Federal Wiretap Act and Stored Communications Act. Furthermore, public-sector employers, such as those in law enforcement, have been found to possess greater rights in monitoring technology used by their employees than have private-sector employers in this emerging area of law.

False Imprisonment

Employers commit the tort of false imprisonment due to the unwarranted detention of an employee for any length of time when the employee is deprived of personal liberty to leave and is aware of the fact that the employee cannot do so. For example, in one case liability was found to exist for employer when a security-services owner joined a security guard in detaining and interrogating a grocery store clerk suspected of theft from a market. The security guard positioned himself between the store clerk and the only door to the room as he advised the grocery store clerk he would decide whether she would be going to jail that evening. The clerk was allowed to receive only one telephone call during her interrogation. The market’s owner also acquiesced in the clerk’s restraint and continued the interrogation begun earlier by the security guard over a three-hour period.

Intentional Infliction of Emotional Distress

An employer may be held liable for the intentional infliction of emotional distress when (1) its conduct is extreme and outrageous, (2) it acted with an intent to cause emotional distress or with substantial certainty distress would result from its conduct, and (3) severe emotional distress did result from its conduct.

Fraudulent Misrepresentation

An employer commits fraudulent misrepresentation when it makes a misrepresentation of fact, opinion, intention, or law for purposes of inducing an employee to act upon it and the employee suffers a loss as a result of doing so.

Intentional Interference with Third-Party Contractual Relations

Employers may be liable for intentional interference with third-party contractual relations when (1) a prospective or existing contractual relationship exists between an employee and a third party, (2) the employer acts for the purpose of causing the specific type of harm at issue to the employee, (3) the employer’s action is without a privilege, and (4) actual harm to the employee results.

Malicious Prosecution

This tort may be committed by either an employer or an employee. It requires that (1) a legal action be initiated by either an employer or an employee against the other, (2) the result of the legal action was unfavorable to the party initiating it, (3) the party initiating the legal action lacked probable cause to bring the action in the first place, and (4) the legal action was initiated with malice and resulted in compensable harm.

Abuse of Process

The tort of abuse of process, like its malicious prosecution cousin, can be committed by either an employer or an employee. In order to prevail, it must be established (1) the defendant entertained an ulterior motive to use the legal process for something other than what it was designed to be used for, and (2) that a willful act was committed by the defendant in its use of the legal process that was improper in the regular conduct of the proceeding.

Blacklisting

The tort of blacklisting is a difficult case to prevail upon. Blacklisting involves an allegation that a former employer of the employee is preventing or attempting to prevent the employee from obtaining future employment. An essential element of the tort, however, is proof the employer acted with malice. Because an employer has a qualified privilege to discuss a former employee’s work performance, courts afford a former employer latitude in what it may say to an applicant’s prospective employer even when the information provided consists of a false assessment of the employee’s overall suitability for the position. In providing references, while a former employer may provide a prospective employer with an overall assessment of its former employee that is negative, it may be difficult for a plaintiff to distinguish between whether the former employer’s expressed assessment was its opinion, which is covered by a qualified privilege as discussed above, or was actually false information that was maliciously communicated to a prospective employer.

IN PLAIN ENGLISH

Blacklisting is the action of creating a list of individuals to be avoided or distrusted by those who create the list. A blacklist can list people to be discriminated against, refused employment, or censured.

EMPLOYMENT CONTRACTS

Determining whether someone is an employee or an independent contractor is not always easy. One of the reasons the characterization is important is that employers are responsible for income-tax withholding, Social Security, workers’ compensation, and the like, whereas one who hires an independent contractor is not (see Chapter 14).

Another reason the distinction between employees and independent contractors is so important is that it defines how the employment relationship may end. If an individual is working for someone as an independent contractor, the contract between that person and the employer will govern the respective rights of the parties upon termination. On the other hand, if the individual is an employee, care must be taken not to become responsible for a wrongful termination when dismissing the individual.

WRONGFUL TERMINATION

Historically, an employee who was not under any form of an employment contract was employed “at will” and could thus be terminated for any reason whatsoever. Presently, absent an employment contract or collective bargaining agreement, an employee’s job can be terminated for (a) the right reason, (b) for no reason, but (c) cannot be terminated for the wrong reason. The wrong reason, for example, includes when an employee’s job was terminated for refusing to commit perjury when testifying before a legislative committee. Courts found a public policy exception exists in those instances and the employee was entitled to recover damages against the employer for wrongful termination of the employee’s employment. In essence, the public policy exception of having individuals testify honestly before the legislature weighed more heavily in the courts’ judgment than the employer’s right to control the employee’s conduct by ordering the employee to commit perjury while in the employment relationship.

In recent years courts have become increasingly protective of the rights of employees who are at-will. In a 1983 case, Novosel v. Nationwide Insurance Company, the US Circuit Court of Appeals for the Third Circuit held the power to hire and fire could not be used to dictate an employee’s political activity in the form of a refusal to lobby the state legislature on his employer’s behalf. The court thus concluded that even a nongovernmental entity, such as a private employer in this instance, is limited by the US Constitution in its power to discharge an employee for the reason stated. The court, in essence, held that one’s right to exercise consitutionally protected free speech outweighed the employer’s right to control an employee’s conduct in this instance.

Wrongful termination cases generally fall into certain categories. Employers may not legally terminate an employee for:

• refusing to commit an unlawful act, such as committing perjury or refusing to participate in illegal price-fixing schemes;

• performing a public obligation, such as serving on a jury or military reserve service;

• exercising a statutory right, such as filing a workers’ compensation claim; or,

• refusing to engage in employment discrimination.

Some courts appear to go quite far in holding that an employer cannot discharge an employee unless there is just cause for termination of employment. A number of states have considered the adoption of legislation that would restrict the employer’s right to terminate an employee’s job to only cases where there was just cause to do so. Most states have laws that contain specific prohibitions on the termination of employment for whistleblowing, (i.e., cases in which employees notify government authorities of wrongful acts committed by employers, such as tax evasion).

PROGRESSIVE DISCIPLINE

Employers who use performance evaluations to improve their employees’ work performance may wish to consider also using what is known as “progressive discipline.” With progressive discipline, the employer begins the disciplinary process by orally warning the employee that a problem exists with work performance. Should sustained improvement in the employee’s work performance not be found, the employer progressively imposes increasingly severe disciplinary measures until termination from employment becomes the employer’s only remaining option. The underlying philosophy of progressive discipline is that both employer and employee have invested considerable time, effort, and resources into an employee’s future employment. Rather than abruptly reacting to areas of inadequate work performance by immediately terminating the employment relationship on the first instance of an employee’s failure to perform satisfactorily, the employer may wish to first attempt to rehabilitate the employee’s performance by instructing the employee on what the employee has done wrong and mildly disciplining the employee with a warning that any future transgression will be met with increasingly severe discipline. Of course, some forms of misconduct are so egregious, such as theft, that no form of progressive discipline should be required.

ISSUES RELATING TO THE COVID-19 PANDEMIC

As noted earlier, just as this book was about to go to print, the COVID-19 pandemic hit the United States and wreaked havoc on its economy. Employees were suddenly laid off, furloughed, and terminated from their employment. Millions of workers, suddenly without employment, filed claims for unemployment insurance benefits en masse, overwhelming the state agencies which administer these programs. After several weeks following the initial impact of COVID-19, however, state and local government officials began to lift orders requiring shutdown of businesses and employers began to consider resumption of their operations. In some industries and services, however, employees considered to be “essential employees” continued working for employers who perform services considered essential to the continued health, safety and well-being of the nation despite the serious and deadly health threats posed by continuing to work in an environment at risk due to exposure of COVID-19 from coworkers and the public being served.

An employer’s operations are thus impacted in four essential areas of law affected by the COVID-19 pandemic: (1) The health and safety of employees in the workplace as regulated by OSHA and its regulations; (2) an employer’s duty to provide a workplace for its employees that is free from discrimination and harassment due to various factors as regulated by various EEO laws and regulations; (3) an employer’s duty to bargain in good faith with unions where applicable as regulated by the NLRA and the NLRB concerning those matters in the workplace which are mandatory subjects of bargaining; and finally (4) the Families First Coronavirus Response Act (“FFCRA”), new federal legislation providing for employee paid leave rights. Each of the foregoing four areas of developing law will now be discussed.

While these areas of employment law are just developing and much will continue to be said and done to continue to keep employers and employees up to the minute as the COVID-19 pandemic phenomenon evolves and laws emerge, we provide the following guidance gleaned largely from official governmental sources.

OSHA AND COVID-19

OSHA’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Employers who have not prepared for pandemic events such as COVID-19 should immediately prepare themselves and their workers as far in advance as possible of potentially worsening outbreak conditions. Lack of continuity planning can result in a cascade of failures as employers attempt to address challenges of COVID-19 with insufficient resources and workers who might not be adequately trained for jobs performed under pandemic conditions.

Develop an Infectious Disease Preparedness and Response Plan

Plans should consider and address the level(s) of risk associated with various worksites and job tasks workers perform at those sites. Such considerations may include:

• Where, how, and from what sources of COVID-19 workers might be exposed;

• Nonoccupational risk factors at home and in community settings;

• Workers’ individual risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions and pregnancy); and

• Controls necessary to address those risks;

Following Federal, State, and Local Recommendations

Follow federal, state and local recommendations regarding development of contingency plans for situations that may arise as a result of outbreaks, such as:

• Increased rates of worker absenteeism;

• The need for social distancing, staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures;

• Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services; and

• Interrupted supply chains or delayed deliveries.

Prepare to Implement Basic Infection Prevention Measures:

• Promote frequent and thorough handwashing;

• Encourage workers to stay home if they are sick;

• Encourage respiratory etiquette, including covering coughs and sneezes;

• Provide customers and the public with tissues and trash receptacles;

• Employers should explore whether they can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others;

• Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, whenever possible; and

• Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment.

Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate:

• Prompt identification and isolation of potentially infectious individuals is a critical step in protecting workers, customers, visitors, and others at a worksite;

• Employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure;

• Employers should develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19;

• Wherever appropriate, employers should develop policies and procedures for immediately isolating people who have signs and/or symptoms of COVID-19, and train workers to implement them;

• Take steps to limit spread of the respiratory secretions of a person who may have COVID-19, provide a face mask, if feasible and available, and ask the person to wear it, if tolerated;

• If possible, isolate people suspected of having COVID-19 separately from those with confirmed cases of the virus to prevent further transmission;

• Restrict the number of personnel entering isolation areas; and

• Protect workers in close contact with (i.e., within 6 feet of) a sick person or who have prolonged/repeated contact with such persons by using additional engineering and administrative controls, safe work practices, and personal protective equipment (“PPE”).

Develop, Implement, and Communicate about Workplace Flexibilities and Protections:

• Actively encourage sick employees to stay home;

• Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies;

• Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop nonpunitive leave policies;

• Do not require a health-care provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as health-care providers’ offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way;

• Maintain flexible policies that permit employees to stay home to care for a sick family member;

• Recognize that workers with ill family members may need to stay home to care for them;

• Be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks; and

• Work with insurance companies (e.g., those providing employee health benefits) and state and local health agencies to provide information to workers and customers about medical care in the event of a COVID-19 outbreak.

Implement Workplace Controls

During a COVID-19 outbreak, whenever it may not be possible to eliminate the hazard, the most effective protection measures are (listed from most effective to least effective): engineering controls; administrative controls; safe work practices (a type of administrative control);, and PPE. In most cases, a combination of control measures will be necessary to protect workers from exposure to COVID-19.

Engineering Controls

Engineering controls for COVID-19 include:

• Installing high-efficiency air filters;

• Increasing ventilation rates in the work environment;

• Installing physical barriers, such as clear plastic “sneeze guards”;

• Installing a drive-through window for customer service; and

• Specialized negative pressure ventilation in some settings, such as for aerosol-generating procedures (e.g., airborne infection isolation rooms in health-care settings and specialized autopsy suites in mortuary settings).

Administrative Controls

Examples of administrative controls for COVID-19 include:

• Encouraging sick workers to stay at home;

• Minimizing contact among workers, clients, and customers by replacing face-to-face meetings with virtual communications and implementing telework, if feasible;

• Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite workweek;

• Discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks;

• Developing emergency communications plans, including a forum for answering workers’ concerns and Internet-based communications, if feasible;

• Providing workers with up-to-date education and training on COVID-19 risk factors and protective behaviors (e.g., cough etiquette and care of PPE); and

• Training workers who need to use PPE how to put it on, use/wear it, and take it off correctly, including in the context of their current and potential duties.

Safe Work Practices

Examples of safe work practices for COVID-19 include:

• Providing resources and a work environment that promotes personal hygiene. For example, provide tissues, no-touch trash cans, hand soap, alcohol-based hand rubs containing at least 60 percent alcohol, disinfectants, and disposable towels for workers to clean their work surfaces;

• Requiring regular handwashing or using alcohol-based hand rubs. Workers should always wash hands when they are visibly soiled and after removing any PPE; and

• Post handwashing signs in restrooms.

Personal Protective Equipment (PPE)

Examples of PPE include: gloves, goggles, face shields, face masks, and respiratory protection, whenever appropriate.

All types of PPE must be:

• Selected based upon the hazard to the worker;

• Properly fitted and periodically refitted, as applicable (e.g., respirators); consistently and properly worn when required, regularly inspected, maintained, and replaced, as necessary; and

• Properly removed, cleaned, and stored or disposed of, as applicable, to avoid contamination of self, others, or the environment.

Employers are obligated to provide their workers, without cost to them, with PPE needed to keep them safe while performing their jobs.

Follow Existing OSHA Standards

Existing OSHA standards may apply to protecting workers from exposure to and infection with COVID-19.

While there is no specific OSHA standard covering COVID-19 exposure, some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are:

• OSHA’s PPE standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection; and

• The General Duty Clause, Section 5(a)(1) of OSHA of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

In addition to the foregoing safety standards concerning workers on the job during the COVID-19 pandemic, employers must be aware of other EEO rules applicable to the workplace which have been impacted by COVID-19 also gleaned from regulatory publications.

EEOC AND COVID-19

As a starting point, the laws enforced by the EEOC do not hinder employers from following the COVID-19 guidance from the Centers for Disease Control and Prevention (“CDC”) and from state or local public health authorities

It should preliminarily be noted, however, that wage and hour issues, the FLSA, the FMLA, OSHA, unemployment compensation and the newly enacted Families First Coronavirus Response Act discussed later in this chapter are governed by the U.S. Department of Labor and not the EEOC. Questions regarding these laws should be directed to the U.S. Department of Labor, whose website is www.dol.gov. The following guidance provided by EEOC is current as of March 27, 2020.

The COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. Employers may also ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath.

An employer may exclude from the workplace those workers with COVID-19, or symptoms associated with COVID-19, because, as EEOC has stated, their presence would pose a direct threat to the health or safety of their coworkers. For those employees who are teleworking, however, because they are not physically interacting with coworkers, the employer would generally not be permitted to ask the foregoing questions.

The ADA, discussed earlier in this book, allows employers to bar an employee from physical presence in the workplace if they refuse to answer questions about whether they have symptoms associated with COVID-19, or has been tested for COVID-19, as well as the ability to bar the employee’s presence if they refuse to have his temperature taken. Employers may wish to ask the reasons for the employee’s refusal, however, because the employer may be able to provide information or reassurances that they are taking these steps to promote the safety of everyone in the workplace.

If an employer wishes to ask only a particular employee to answer such questions, or to have that employee’s temperature taken, the ADA requires the employer to have a reasonable belief based on objective evidence that this employee might have COVID-19. If an employer notices that an employee has a persistent, hacking cough, it could ask about the cough, whether the employee has been to a doctor due to the symptom and whether the employee knows if they have or might have COVID-19. The reason these types of questions are permissible now is because this type of cough is one of the symptoms associated with COVID-19. On the other hand, if an employer notices that an employee seems distracted, then that would be an insufficient basis to ask whether the employee has COVID-19.

From a public health perspective, only asking an employee about his contact with family members unnecessarily limits the possible extent of an employee’s potential exposure to COVID-19. A better question from a public health and workforce management perspective is whether an individual has had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with the disease. From EEOC’s perspective, this general question is sounder. The Genetic Information Nondiscrimination Act or GINA, prohibits employers from asking employees medical questions about family members.

The ADA requires an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, here, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

Exactly who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

Certainly, a designated representative of the employer may interview the employee to get a list of people with whom the employee possibly had contact with through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee. However, this does not require disclosing the employee’s name. Also remember that all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information.

ADA confidentiality does not prevent an employee with information concerning symptoms by a coworker from communicating this information to his supervisor. In other words, it is not an ADA confidentiality violation for such an employee to inform his supervisor about a coworker’s symptoms.

If staff needs to know how to contact the employee who is self-quarantining due to COVID-19 symptoms, and that employee continues to work even though not present in the workplace, disclosure to the employee’s coworkers of the employer’s need to contact the teleworking employee is permissible so long as the employer does not disclose why the employee is teleworking. Also, if the employee was on leave rather than teleworking because they have COVID-19 or symptoms associated with the disease, or any other medical condition, then of course too an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Can employers tell the workforce the name of the employee with COVID-19? Again, no. The ADA does not permit such a broad disclosure of the medical condition of a specific employee. More importantly, this broad disclosure is not recommended by the CDC. The CDC specifically advises employers to maintain confidentiality of people with confirmed COVID-19.

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can see them.

Similarly, documentation must not be stored electronically where others would have access. And in fact, a manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Does the ADA permit employers to notify public health authorities if the employer learns an employee has COVID-19? The answer is yes. The ADA permits this notification to public health authorities because, as the EEOC explained in its updated Pandemic publication, COVID-19 at this time poses a direct threat both to individuals with the disease and those they come into contact with.

The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave.

The Age Discrimination in Employment Act does not itself have an accommodation provision like the Americans with Disabilities Act. However, if an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers differently based on their age.

Pregnant employees are protected under Title VII of the Civil Rights Act. Employment actions based on pregnancy are employment actions based on sex, so decisions about layoffs or furloughs should not be based on pregnancy.

Title VII as amended by the Pregnancy Discrimination Act states that “women affected by pregnancy shall be treated the same for all employment related purposes as other persons not so affected but similar in their ability or inability to work.” Therefore, a pregnant worker should not be denied a needed adjustment that the employer provides to other employees for other reasons but who are similar in their ability or inability to work. In addition, note that pregnancy-related medical conditions sometimes can be ADA disabilities, and if that is the case, they may trigger ADA accommodation rights. However, it should be noted that pregnancy itself is not an ADA disability.

Title VII of the Civil Rights Act prohibits all employment discrimination based on national origin. It does not matter if it is linked to the current COVID-19 pandemic. Employers may wish to remind workers in these difficult times about policies on workplace harassment, and emphasize the broad nature of the prohibition against harassment—meaning that policies include a prohibition on any harassment based on national origin, among other bases, even if the harassment is linked to fear about the virus.

The EEOC advises as follows at this time—This is a very new virus and while medical experts are learning more about it, there is still much that is unknown.

Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA. Regardless of whether COVID-19 is or could be a disability, it should be remembered that an employer may bar an employee with the disease from entering the workplace at this time because of direct threat. Employers should continue to take actions involving persons with COVID-19, or who may have COVID-19, based on the most current guidance available from the CDC and other public health authorities.

The CDC has identified a number of medical conditions—including, for example, chronic lung disease and serious heart conditions—as potentially putting individuals at higher risk. Therefore, this is clearly a request for reasonable accommodation, meaning it is a request for a change in the workplace due to a medical condition. Because the ADA would not require an accommodation where the employee has no disability, the employer may verify that the employee does have a disability, as well as verifying that the accommodation is needed because the particular disability may put the individual at higher risk. There could also be situations where accommodations are requested because a current disability is exacerbated by the current situation.

Again, the employer can verify the existence of the disability and discuss both why an accommodation is needed and the type of accommodation that would meet the employee’s health concerns. In either situation, and as with any requests for reasonable accommodation, an employer may also consider whether a reasonable accommodation would pose an undue hardship, meaning the employer may assess whether a specific form of accommodation would pose significant expense or difficulty. Under the current circumstances, for employers seeking documentation from a health-care provider to support the employee’s request, they should remember that because of the health crisis many doctors may have difficulty responding quickly. There may be other ways to verify the existence of a disability. For example, a health insurance record or a prescription may document the existence of the disability. If the employer is waiting to receive documentation, it may want to provide the accommodation on a temporary basis. This could be particularly critical where the request is for telework or leave from an employee whose disability puts them at higher risk for COVID-19.

The employee only has a right to reasonable accommodation for his own disability. If an employee does not have a disability but seeks reasonable accommodation due to a member of their household’s disability, the ADA does not require reasonable accommodation for the employee. However, the employer should consider if it is treating the employee differently than other employees with a similar need before it responds to the request.

The interactive process refers to the process an employer and employee should use to fully discuss a request for accommodation so that the employer obtains necessary information to make an informed decision. In the current situation, some requests may need an employer’s prompt attention, such as those employees who have disabilities putting them at higher risk. Employers may provide requested accommodations on a temporary basis (for example, one or two weeks) while the employer is discussing the request more fully with the employee or waiting to receive medical documentation. Given the current circumstances, employers and employees should try to be as flexible and creative as possible. There may be accommodations that are not ideal but will meet an employee’s needs, at least on a short-term basis. For federal agencies, the current COVID-19 crisis constitutes an extenuating circumstance that can justify exceeding the normal time lines they must follow in processing requests for and providing reasonable accommodations.

So as a practical matter, given the circumstances that have led to the need for telework, employers and employees should both be creative and flexible about what can be done where an employee needs a reasonable accommodation for telework at home in these circumstances. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then of course the employer does not have to provide telework as an accommodation. Or if there is a disability-related limitation, but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the COVID-19 crisis has ended—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. This is because the ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering a renewed request for accommodation. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. But as with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process if this issue does arise.

THE DUTY TO BARGAIN CONCERNING MANDATORY SUBJECTS OF BARGAINING

As discussed in Chapter 5: “Collective Bargaining Agreement,” in those instances where an employer’s employees are represented by a union, the employer is required, pursuant to the NLRA, to bargain in good faith with it concerning wages, hours and other terms and conditions of employment. Under a long line of precedential decisions, employers under such circumstances must bargain with unions on such matters as workplace safety for employees, scheduling of hours such as alternative work shifts and wages and benefits paid which might be impacted by any changes in the workplace due to COVID-19.

While it is still too early to know, the duty to bargain may itself be impacted by the emergency nature of the COVID-19 pandemic. Whenever possible, however, employers would be well-advised in the practical interests of time and conservation of resources, to work collaboratively with its union seeking solutions to problems posed as workers return to the workplace. In this regard, it will initially be necessary for employers, when implementing changes in the workplace, to meet the threat of COVID-19 by (1) performing risk assessments and implement protection plans, (2) train workers on limiting virus spread, including recognizing COVID-19 symptoms and staying home when symptoms are present, (3) implementing individual control measures and screening, (4) implement disinfecting protocols, and (5) implementing physical distancing guidelines. When implementing the foregoing steps, each industry must be assessed individually in consultation with the state where the workplace is located. Employers should therefore engage and negotiate whenever possible with their unions and memorialize all agreements in writing in the form of COVID-19 Pandemic Side Letters to their collective bargaining agreements that spell out best practices for workers’ safety and provide workers with a safe work environment consistent with CDC recommendations.

IN PLAIN ENGLISH

Some hand sanitizers have been determined to be dangerous to the public. You should check the Food and Drug Administration’s (“FDA”) website in order to determine whether any of the hand sanitizers you currently have available or intend to purchase are on that list.

Some areas where bargaining may be required include PPE (which must be provided without charge to employees) including masks, gloves, hand sanitizer, handwashing stations and time off to wash hands, gowns, plastic protective face shields, Plexiglas protective workstation shields and deep cleaning supplies. A second area is social distancing standards including enclosed office spaces, standards for working in such diverse areas as schools, libraries and public facilities, stores and retail outlets, outdoor construction and other outdoor occupations.

Changes in operations in retail, manufacturing and office work settings might include bargaining concerning staggered work shifts, cafeteria or lunch/rest breaks including seating rules, rules concerning use of restroom and cleaning, elevators and staircases use, lobbies and other shared areas, parking areas whether enclosed or open, and shared use of offices.

The laws protecting equal pay for equal work continue to apply, thus precluding two-tier wage structures in response to COVID-19.

Whether a business is a retailer where employees must interact with customers in a store, a manufacturing operation, or an office, there are numerous, well-thought-out measures that should be taken throughout its operations which will minimize the risks to workers associated with COVID-19. Some of these measures may be relatively inexpensive and commonsensical, such as washing hands, while others may be more expensive such modifying the workplace’s heating, ventilation, and air-conditioning system. The key to solutions regarding each of these areas is gathering as much information concerning how to minimize spread of COVID-19 and well-thought-out planning concerning each of the affected area in the employer’s operations. Because employees who must perform work functions within the employer’s plant or facility possess a great deal of knowledge concerning how work duties are performed and may possibly offer suggestions on how measures may be taken in the interests of protecting their own health and safety, it makes sense for employers to confer with their unions for both practical as well as legally required reasons before implementing changes in the workplace in response to COVID-19.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT (“FFCRA”)

Generally, FFCRA provides that employees of covered employers are eligible for:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health-care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health-care provider), or to care for a child (under 18 years of age) whose school or childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

• Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.

CONCLUSION

Care must always be taken to avoid violating employees’ rights of dignity, privacy, and reputation in the workplace. Employer liability for violations of various federal and state laws concerning discrimination in the workplace, the commission of torts against employees in the workplace, and wrongful termination of the employment relationship in violation of public policy can result in catastrophic financial consequences to employers. When in doubt, an employer should prudently contact an attorney before taking actions affecting employees’ employment. In this dynamic field of law, as with others, a relatively small measure of preventive legal counseling can avoid a very large award of damages following time-consuming and emotionally draining litigation.