 WIRTW #481 (the “proof of concept” edition)When a commenter starts his thoughts with “Hey faggot,” you know you have one for the internet-troll hall of fame. A couple of months ago I wrote a post entitled, When You Discover That You Employ a Nazi. This post generated the above-referenced comment on Workforce.com (which cross-posts my blog daily). The rest of this winning comment? Thank you, Mr. Bryson, for proving my point. Let me also suggest (if you can stomach it) that you check out his account on Disqus.com, which exposes his views on a range of topics, including LGBTQ people, the Jews, and school shootings as false flags. For the record, he is con, con, and WTF?!
Here’s what else I read this week: DiscriminationTechnologyHR & Employee RelationsWage & HourLaborOSHA & Safety
When is a break not a break under the FLSA? The FLSA draws a pretty clear line as to when breaks must be paid, and when they can be unpaid. If a break 20 minutes or less in duration, it must be paid. Any longer, and an employer can make it an unpaid break. What if, however, instead of providing employees paid breaks, an employer installs a system of flex time—the employer only pays employees for the time they are logged onto its system, which maximizes employees’ ability to take breaks from work at any time, for any reason, and for any duration. Does this “flex time” system of unlimited unpaid breaks pass muster under the FLSA? According to one federal court of appeals, in Acosta v. American Future Systems, d/b/a Progressive Business Publications (3d Cir. 10/13/17), the answer is “no.” Progressive does not deny that it permits employees to log off; it just refuses to call those time periods “breaks.” This misses the point of the FLSA’s regulatory scheme. Its protections cannot be negated by employers’ characterizations that deprive employees of rights they are entitled to under the FLSA. The “log off” times are clearly “breaks” to which the FLSA applies. The policy that Progressive refers to as “flexible time” forces employees to choose between such basic necessities as going to the bathroom or getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than ninety seconds. If the employee can somehow manage to do that, he or she will be paid for the intervening period. If the employee requires more than ninety seconds to get to the bathroom and back, the employee will not be paid for the period logged off of, and away from, the employee’s computer. That result is absolutely contrary to the FLSA. What is an employer’s recourse, then, to control employee abuses of paid breaks? The court had an answer for that question as well—discipline or termination: Progressive argues that if a bright-line rule is enforced, employees will be allowed to take any number of breaks during their workday, and as long as they are less than twenty minutes, employers will have to compensate them. We recognize this is a theoretical possibility. … However, it is not a realistic one. “[W]here the employee is taking multiple, unscheduled nineteen-minute breaks over and above his or her scheduled breaks for example, the employer’s recourse is to discipline or terminate the employee—not to withhold compensation.” There is little doubt that the FLSA is a tangled mess of regulations with which even a well-intentioned employer has difficulty complying in totality. As this case illustrates, however, employers cannot game the FLSA on paid break time, as the law draws a bright-line rule on the issue. Bravo to this employer for trying to find a creative solution to curb a problem of excessive smoke breaks, coffee breaks, and bathroom breaks. Its remedy, however, is not the installation of a system of unpaid break disguised as “flex time,” but instead the discipline or termination of those employees who are taking advantage of the FLSA’s generous allowance for paid break time. 
No, you do not need a workplace emoji policy I read a blog yesterday that asked the following question? “ Do you need a workplace emoji policy?” They say yes, I say an unequivocal no. They argue that inappropriate emoji use might lead to misunderstandings and harassment liability. You may want to look into having a custom set of emojis defined for use throughout the company (and leave out the easy to misinterpret emojis, like the winky face, tongue out, kissy face, or racially diverse options). It’s not that some emojis are inappropriate on their own, but the context makes a big difference. Also, if an employee is not fluent in emoji, they might misunderstand what they are saying, or being told/asked, if an emoji is used. Using the wrong emoji could be seen as evidence of a hostile work environment, discrimination, or sexual harassment. As such, if you are going to allow the use of emojis, you may want to have training available to employees on what the emojis mean. They are also corporate killjoys. (And we wonder why people can’t stand lawyers.) This might be silliest thing I’ve read in a long time. Most employers already have an emoji policy. It’s called your harassment policy. You do not need a separate policy to forbid your employees from using what is becoming an acceptable form of communication. Heck, even courts are starting to use emoji in opinions. We can have a healthy debate over the professionalism of emoji use in business communications ( like this one). Indeed, according to one recent survey, “nearly half (41%) of workers use emojis in professional communications. And among the senior managers polled, 61% said it’s fine, at least in some situations.” My sense is that your view of this issue will depend on a combination of your age, your comfort with technology, and the age of your kids. As for me, I use emoji all the time, even at work. Email is notoriously tone deaf. It’s easier for me to drop a 😊 into an email to convey intent than to tone down my sarcasm. In other words, 😁. Emojis are 👌, and its perfectly fine to ❤ them at work. ✌ 
Weinstein case highlights problem of “ostriching” harassment It’s been a busy few days in employment-law land, with the Harvey Weinstein sexual harassment case dominating the headlines. What have we learned? - Weinstein is an (alleged) (do I really need to add this qualifier?) serial harasser, maybe one of the worst in history.
- His misconduct was the worst kept secret in Hollywood, with even Courtney Love discussing it all the way back in 2005.
- The Weinstein Company, and the members of its board of director, are in deep, deep trouble for ignoring Harvey’s (alleged) wandering eyes, hands, etc.
In the past fews days I’ve discussed these issues with both the Guardian ( here) and Business Insurance ( here). In both interviews I made similar remarks about the company’s and its board members’ impending legal troubles: Referring to reports that Mr. Weinstein had settled a number of sexual harassment charges in the past, Mr. Hyman said if board members see large checks going out, “maybe you should ask somebody why we’re cutting so-and-so a $100,000 check — and if you don’t have the answer, maybe you have an obligation to get to the bottom of what’s going on.” There was “so much smoke, it’s hard to believe any one besides Harvey didn’t know what was going on,” said Mr. Hyman. … “If I were a board member, I’d be really nervous” about investors suing the company for breach of their fiduciary obligations, Mr. Hyman said. He pointed to litigation filed by shareholders of Los Angeles-based American Apparel Inc., which faced shareholder lawsuits after its former chairman, Dov Charney, was fired for allegedly misusing funds and allowing the posting on the internet of nude photos of a former female employee who had accused him of sexual harassment. In other words, an employer cannot turn a blind eye to harassment that is happening right under its nose, no matter the perpetrator. No one wants to watch Harvey Weinstein play with little Harvey, especially the myriad women claiming he did that in front of them. Or, as I put it back in 2011, in writing about Penn State’s handling of Jerry Sandusky, an employer “cannot ‘ostrich’ harassment allegations”— If you take nothing else away from this horrible story, let it be this point: under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If you opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and indefensible?) harassment lawsuit. Maybe employers will eventually learn this important lesson. 
There is no *good* reason to be anti-LGBTQ rights Last week I presented a webinar entitled, “The Top 10 Employee Handbook Mistakes.” I discussed, among other policies, missing at-will disclaimers, salary discussion bans, failing to define the FMLA leave-year, inflexible leave of absence policies, and omitted or ineffective harassment policies. I also discussed anti-discrimination policies that ignore LGBTQ employment rights. During the LGBTQ section of the webinar, I provided the legal background on the issue ( Title VII is silent, some states and municipalities have acted, and the EEOC and federal courts have stepped up to otherwise fill in Title VII’s gap). I then issued this challenge to the attendees— “Be on the right side of history.” When LGBTQ discrimination becomes universally illegal (and it will), and history looks back on this time during which this brand of discrimination was still legal, on what side of history do you want to be as an employer? The side that condoned (or, worse yet, participated in) this discrimination, or the side that took a stand against it? Following the webinar, I received audience feedback. One attendee criticized me for advocating in favor of LGBTQ employment rights. I don’t think he was very happy with me. Let me make this very clear. There is no good reason to justify anyone being in favor of LGBTQ discrimination, or against protecting LGBTQ civil rights. Your best case scenario? You don’t like LGBTQ people, period. Even if I give you every benefit of every doubt, that’s as good as it’s going to get for you. Worst case? You’re an evil, hate-mongering bigot. Do me a favor. In place of “LGBTQ”, substitute “African-American”, or “women”, or “Jews”. How does your denial of equal rights sound now? Still comfortable with your position? So, I ask again, on what side of history do you want to be? I know my answer. 
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