After more than three decades providing employers legal counsel and litigation representation, I’ve seen (and helped prevent) a great deal of conflict at the workplace. What’s important for every employer to keep in mind is that an ounce of prevention is worth a pound of cure. Successful employers that stay mindful of pitfalls can better avoid costly litigation. Below, I highlight some of the common employment issues that come across my desk.
1. Remote work and reasonable accommodations
When the COVID-19 pandemic fast-tracked the work-from-home movement, it led to a schism between certain employers and employees that is still being reckoned with today. Simply put, some employers want their employees back in the office while some employees have tasted a freedom they don’t want to relinquish — and some employees are requesting remote work as a reasonable accommodation for a mental disability. It’s important that employers receiving these accommodation requests not conflate them with the larger fight for remote work.
The fact is, employers are not entitled to deny remote work as a reasonable accommodation unless they can show that being physically at the workplace is an essential function of the position. Employers should carefully and regularly review employee job descriptions. For those jobs they want filled in-person, the related job descriptions should clearly indicate how the duties of the job require an in-person presence at the workplace. Doing so can stop unwanted requests for remote work short in their tracks.
2. Restrictive covenants and hiring
Restrictive covenants with employees (such as non-competition and non-solicitation agreements) may be becoming less prevalent as a result of legislative restrictions, but they can still throw a wrench in an employer’s hiring plans. More often than you’d think, I see employers ready to hire someone only to find out at the last second that their preferred hire is under a restrictive agreement with a previous employer.
Their choices are to move on to a new prospect, losing the time spent on the hiring process, or run the risk of a lawsuit from the prospective employee’s prior employer. Avoiding this unfortunate situation is simple — employers need to ask their candidates up front if they have any agreements with a former employer that might limit their ability to work for the new employer.
3. Remote workers and state laws
While there has been some effort to reign in remote work, it seems unlikely to go away — and it can be a great way for employers to access a broader pool of talent. However, when an employer wants to hire a remote worker in another state, it’s essential to keep in mind that the laws of the state in which the worker lives and works may be the laws that apply to the employment relationship — not necessarily those of the state in which the employer is located.
Rules that differ between states can touch on everything from wage and hour issues (like overtime and final pay), to restrictive covenants and leave laws. Employers must be sure to apply the correct state law when dealing with out-of-state remote employees. Keeping things straight and clear to all parties may involve creating multiple employee handbooks (or addenda to existing handbooks) to outline which state laws apply when. Tracking this web of state law is essential for employers looking to avoid liability.
4. Obnoxious employees and protected activity
Most employers have experienced employees who like to endlessly complain about things in the workplace. While it can be tempting to view them as troublemakers and want to remove them from the workforce, employers need to exercise caution — that employee’s obnoxious, complaining behavior might be protected under the National Labor Relations Act (NLRA).
The NLRA protects both unionized and non-unionized employees engaging in “concerted activity,” defined as when two or more employees work together to address work-related issues or improve their employment conditions. This can include discussing pay, benefits, safety or other issues with coworkers or supervisors. Taking adverse actions against employees engaging in concerted activity — whether it’s discipline or termination — can constitute an unfair labor practice under the NLRA and that can lead to the National Labor Relations Board investigating, or even filing suit against, the employer.
Employers wishing to take action against obnoxious employees can best minimize their risk by first evaluating what the employee is talking about with coworkers to determine if their grousing falls within the category of concerted activity.
– Tonkon Torp LLP