The case is called Purple Communications, Inc., and all 70-plus pages of the order are available here (under “Board Decision” dated 12/11/2014). The rule before this case was that an employer had the right to restrict non-business use of its email system, so long as it did so in a non-discriminatory fashion. In Purple, the Board held that employees must be granted access to use their employer’s email system during nonworking time to engage in protected activity, such as discussing terms and conditions of employment. Employers with a strict rule that work email is for business use only will therefore need to revise their policy to allow employees to use company email during nonworking time to engage in protected activity. There are some limited exceptions to this rule, for circumstances where permitting use of company email for protected activity will seriously disrupt productivity or business operations. If you think this is the case for your business, please contact us, and we can help you craft a policy that should satisfy the NLRB.
If, like many employers, you already allow non-business use of work email during nonworking time, this decision still impacts you. Most employers have some kind of policy that regulates what employees can do on the company’s email and other communication systems. Because the Purple ruling requires employers to allow employees to use company email to engage in protected activity, restrictions that infringe on this right are no longer OK. This, too, is no reason to panic, however, because it simply means your use of technology policy has to look a bit more like your social media policy (you have one of those, right?). As discussed in the blog posts available here, the Board has already issued a series of rulings and memoranda explaining how it will evaluate social media policies. Generally speaking, the Board has stated that a policy will be struck down if it could be read by a reasonable employee to prohibit protected activity, such as engaging in collective action or discussing conditions of employment.
Although Purple Communications was a dramatic opinion, in that it overturned decades of previous Board law, it should not be difficult for businesses to adapt.
]]>While the antidiscrimination laws that protect transgender individuals are not new, the subject of gender identity may be new to your managers. This post is intended to provide a very basic understanding of transgender issues to get employers off on the right foot for appropriately, sensitively, and lawfully handling gender expression issues in the workplace.
Defining Basic Terms
Broadly speaking, “gender expression” refers to the way people manifest masculinity or femininity. This can be through clothing, hair, makeup, overall appearance, speech, or other behavior or form of personal presentation. “Gender identity” refers to a person’s innate sense of being male or female. When someone is transgender, it essentially means their gender expression or identity is not consistent with societal expectations of someone with the same assigned sex at birth. “Sexual orientation” is a person’s physical and/or emotional attraction to the same or the opposite gender. Although sexual orientation and gender identity are often discussed together, they are not the same: a person’s gender identity has nothing to with their sexual preference, just the same as it has nothing to do with their age, race, or ethnicity.
Unlike the broader, umbrella term transgender (sometimes shortened to “trans”), “transsexual” specifically means someone who strongly feels that they do not embody the sex they were assigned at birth and has changed, or is in the process of changing, their sex to correspond to their sense of gender identity. These individuals often pursue medical options, such as surgery or medication, in order to align their physical characteristics with the gender with which they identify. When a person undergoes a process of medically, legally, and socially changing gender, this is known as a “transition.” A transition may or may not involve a “gender reassignment” (also known as “gender confirmation”) surgery.
One thing many people do not realize is that not every transgender person necessarily identifies as the opposite sex or has any desire to change his or her body. In fact, a transgender person may not identify as any gender at all but actually prefer to avoid restrictive notions of male or female altogether.
| Tips for Being an Ally to Your Transgender Employee Use respectful language. It can be difficult to know the proper terminology to use when talking to or about a transgender employee. A lot of terms are out there in the media, but not all of them are considered respectful. Avoid stigmatizing words like tranny, transvestite, hermaphrodite, and sex-change surgery.Learn and use The proper pronoun. You should always call a trans person by their preferred name and chosen pronoun. If you don’t know their preference, it’s okay to respectfully ask the employee which pronoun they prefer, or how you should refer to them. If you use an incorrect name or pronoun, apologize and move on; making a fuss about it is likely to be perceived as awkward or offensive. Along the same lines, ensure that an employee who recently disclosed that they are transgender is provided an updated name tag, uniform, business cards, etc. and that they are entered into internal and external systems with their preferred name and gender. Do not ask them if they have had gender reassignment surgery. This is a very private subject and should be treated the same way you would treat any employee’s medical issue. The same goes for hormone replacement therapy or any other medical treatment. Just because someone is transgender, it doesn’t mean they want to talk to their boss or coworkers about their body. Keep it confidential. Be aware that a trans person’s name or gender on their driver’s license or other state or federal documents may be incongruent with their appearance or preferred name and pronoun (for example, when a person named “Steven” on legal identification presents as female). If this occurs, do not confront or “out” the transgender employee. It may be necessary to note the trans employee’s legal name in formal employment documentation, but there is no requirement to use that same name in the workplace environment – think of how often people go by nicknames or middle names rather than their given first name. An employee’s status as transgender should remain private, unless the trans employee prefers otherwise. Give the employee safe and private spaces. A question that always comes up with regard to transgender employees is which bathroom they should use. Simply put, the transgender individual should be permitted to use the restroom of the gender with which they identify. This is true regardless of whether they have had gender reassignment surgery. If another employee objects, that person should be reminded that this valued employee has the same right to use the restroom as all other employees. As for locker rooms, the trans employee should be provided a private area to change (either within the regular public locker room or in a separate area) or be given a separate changing schedule. |
As an employer, you are responsible to ensure that both your managers and your other employees are treating transgender employees respectfully. As with most things, the tone you set at the top will make a big difference in how the rest of your employees behave. (It’s also something that judges and juries give a lot of weight to when considering whether a company is responsible for an alleged hostile work environment against a transgender employee). That said, teaching respect and sensitivity to your employees is not necessarily easy or simple. If you have a transitioning employee, you may want to schedule a transgender awareness and sensitivity training to educate employees about trans issues and teach them how to respectfully interact with their transgender colleague.
]]>As the school year begins again, it is a great time for hoteliers to think about their unpaid internship programs. Unpaid internships can be great symbiotic relationships. College students or individuals trying out new fields are willing to work for free in exchange for real-life work experience and something to add to their resumes. However before accepting free labor, employers must be aware of the potential consequences of this relationship and take steps to ensure their internship program complies with the law.
The Fair Labor Standards Act (FLSA) is a federal statute that requires companies to pay all employees a minimum wage and overtime. Who counts as an “employee” is a tricky question and some companies who thought they had unpaid “interns” found out the hard way that they actually had “employees” they were not paying. A recent New York case that is getting a lot of attention is Glatt v. Fox Searchlight Pictures, Inc. In that case, unpaid interns who worked on the movie Black Swan brought a lawsuit claiming that they actually were employees and, as such, should have been paid minimum wage and overtime for their 50-hour weeks. The interns had performed routine administrative tasks such as making photocopies, running errands, ordering lunch, and getting people coffee.
Sounds like typical intern work, right? Wrong. The Federal District Court held these individuals did not categorize in the FLSA exception for interns because their work was purely routine and did not further their education in the way a true internship should. The court also found it was the employer, not the interns, who got the better deal, deriving the most benefit from the relationship. Significantly, the court also held the interns performed work that otherwise would have been done by regular employees, thereby permitting the employer to get the same amount of work done with fewer paid workers. Even though the interns had agreed to serve without pay, the court found overall that the interns were employees and should have been paid wages and overtime. This case is not a fluke — there have been a number of similar intern-related cases lately.
In ruling in favor of the interns, the Glatt court followed a Fact Sheet from the Department of Labor (DOL) detailing a test for whether an internship is exempt from minimum wage laws. To see if your internship program is kosher under the DOL guidance, check out these requirements for a legal unpaid internship:
In short, based on the above federal guidelines (which Washington state closely follows), it is fine for a company to have an unpaid intern, provided the intern — not the company — is the primary beneficiary of the program. To ensure the company is not deriving benefits from or depending on the intern’s work, the company should ensure the intern’s duties don’t regularly include routine operational tasks, such as janitorial work, clerical work, or work that other employees would normally perform. The company should also make sure the intern is closely supervised, receiving more supervision than regular employees, and should give the intern plenty of training opportunities. If the intern is doing operational work, the company should ensure he or she is learning skills that would be transferable to another company, rather than skills that are specific to the company’s own operations. Finally, the company should consider requiring the intern to sign a document expressly stating that he or she is an intern and not an employee, that the internship is unpaid, and that the intern is not entitled to a job at the conclusion of the internship.
For more information, please contact me, Greg Duff, or other attorneys in the GSB’s Employment Group.
Originally published on Duff on Hospitality, 6 September 2013.
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