As your Hudson Valley PEO experts, we often receive questions from our clients regarding HR related issues such as administration and compliance, safety and risk management, pay practices, workers compensation and more. While some of these questions involve specific issues, many are general and we believe there’s value in sharing them with everyone.
That’s why our HR support team decided to put together a series of Q&As around common questions and concerns. Volume 1 focuses on employee relations and how to maintain a welcoming, safe, and compliant workplace for your team. We hope you find them helpful!
Please note, the information and materials provided in this Q&A does not constitute legal or other professional advice. Ethan Allen HR Services is not responsible for any claims, losses, costs, or liabilities resulting from your use of this information. For specific questions or concerns, you should consult your lawyer, professional advisor, or Ethan Allen HR directly.
Employee Relations Q&A
Can we require or allow certain groups of employees, but not others, to work from home?
Yes. Employers may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on nondiscriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. nonexempt), or location of the office or the employee. Employers should be able to support the business justification for allowing or requiring certain groups to telecommute.
Our workplace is primarily English speaking with some employees who also speak Spanish. We’ve had complaints of employees speaking only Spanish in the breakroom. Can we request that employees speak only English in the workplace, including the breakroom?
No. It is not advisable to implement an English-only policy in your workplace. According to the Equal Employment Opportunity Commission (EEOC), requiring employees to speak only English in the workplace, including the breakroom, violates Title VII, which protects against employment discrimination on the basis of national origin. The one exception the EEOC offers regarding such a requirement is that an English-only restriction could be permissible if the employer can demonstrate it is justified by business necessity. For example, an English-only rule in a safety sensitive area may be necessary for the workplace so employees may operate safely and efficiently.
The EEOC offers the following specific guidance regarding English-only rules:
- A rule requiring employees to always speak only English in the workplace, including breaks and lunch time, will rarely be justified.
- Circumstances in which an English-only rule may be justified include communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
Even if you find that there is a need for an English-only rule, employers may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it. If you believe that it is important for your business to have an English-only policy, please contact us before implementing the policy.
How should we respond to a racially insensitive comment made by an employee?
A racially insensitive comment could be considered harassment — and it would be unlawful harassment if putting up with such comments became a condition of continued employment. Essentially, if management was unwilling to put a stop to it or if the conduct was severe or pervasive enough to create a work environment that a reasonable person would consider hostile.
Since you have a duty as an employer to stop unlawful harassment, we recommend that you investigate the alleged comment and, if you find evidence to support that your harassment or other conduct policies have been violated, discipline the employee who made it. Make sure that the punishment fits the crime. For instance, something that was, in fact, just insensitive may warrant a verbal warning, whereas calling someone by a racial slur may warrant a final warning or even termination depending on the circumstances. Be sure to document your findings and any disciplinary actions taken.
We’ve heard it said that termination always comes with risk. What does that mean?
It means there is always a risk that a terminated employee could make an issue of the termination, claiming that it was discriminatory or based on some other illegal reason. There is also the risk that they will bad-mouth your organization on the internet or in other forums.
In most cases, employers can terminate an employee for any reason or no reason at all. However, there are a handful of illegal reasons for firing someone. Nothing you do can guarantee that an employee will not call a lawyer or the Department of Labor and claim that their termination was for one of these illegal reasons, even if you had great documentation and they had done something completely worthy of termination. Therefore, no termination is risk-free.
That said, while you cannot eliminate all risk, you can and should do everything in your power to reduce it including having a clear, well-documented reason for the termination, and being respectful to the departing employee. If you have a good reason for the termination, and the terminated employee knows you can provide evidence of this reason, they are much less likely to try to bring a claim against you.
How should we handle returning personal belongings to a terminated employee? Can we pack them up for the employee?
You may pack personal belonging for the employee or ask that they come in and collect their items. We suggest that you let the employee gather their things so that you avoid any disputes about missing personal items, but either way is fine. As long as the items are not harmed or discarded, you should be in good shape to collect their personal belongings for them, and given COVID-19, this option may be preferable.
If you go this route, explain to the employee that you have packed up their personal items and will arrange to have these items returned to them. You have a few options here as well. You and the employee can schedule a time for them to collect the items at the worksite, you can offer to meet them at an agreed-upon location, or you can mail them to the employee’s address.
If you and the employee choose to have them come to the worksite, establish a reasonable deadline for the collection of personal property and make it clear that after that date, personal items left at the workplace will be considered abandoned and disposed of or donated. Maintain documentation of your efforts to contact the individual regarding these items.
Must we give an employee under the age of 40 who is offered a severance agreement time to revoke that agreement?
No. For employees under the age of 40, employers are not required to establish a specific time period during which employees may consider a severance package in exchange for additional compensation, or during which they may change their minds and revoke the agreement after signing.
However, employees 40 years of age or older are protected by the Age Discrimination in Employment Act (ADEA), as amended by the Older Workers Benefit Protection Act (OWBPA). The OWBPA grants older workers additional time to consider severance agreements so they are not unduly pressured to sign them. They have at least 21 days to consider the agreement and seven days after they sign it to revoke the agreement.
Employees who are part of a group termination must be given 45 days to consider the employer’s severance offer. States may have additional requirements that should be considered as well.
A waiver in a severance agreement generally is valid when an employee knowingly and voluntarily consents to releasing the employer from claims of wrongful termination due to discrimination. Some employers may choose to give employees of all ages additional time to consider their options to meet that “knowing and voluntary” standard.
Still have questions about employee relations in the workplace? Get in touch with Ethan Allen’s HR expert today.
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