Tag Archives: employment law

What Trump’s Immigration Executive Order Means for Employers

I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.

Finale of Holiday Tale by Jewish Guy Who Wears a Chai

I am pleased to share my latest post to The SHRM Blog regarding the holiday season and its impact on employment law.

You are an exhausted HR professional charged with making the holidays lively without inviting lawsuits. On the day of your company’s holiday party, you walk into the lobby of your building and see the elegant Christmas pine that you had helped decorate. As you behold it in its twinkling glory, a co-worker says, “That tree is inappropriate in the workplace.”

The co-worker is wrong. It is beautiful; Christmas can and should be acknowledged—so says the Jewish guy who wears his grandmother’s chai. By the way, Chai is a Hebrew letter that means “life,” and I proudly wear my grandmother’s pendant (and my grandfather’s ring).

There’s no reason to remove symbols of Christmas from holiday decorations. But recognize other holidays, too. A Hanukkah menorah and a Kwanzaa harvest basket would be nice additions.

By the way, size does matter. Imagine the message of five life-sized reindeer next to a Kwanza basket the size of a soup bowl.
Your encounter in the lobby, however, is just the beginning of a day of seasonal challenges.

In the elevator, you hear employees complaining about the holiday party. “I don’t want to go, but I feel like I have to,” one says. You take out a lawfully-prescribed pill. You filled the prescription after the last holiday party.

Of course, you would love to say, “Please, if you don’t want to go, by all means, don’t. Your present to me would be the absence of your presence.” It’s OK to think it, but please don’t say it (unless you are retiring at the end of the year). If you are planning on retiring: go for it (and tell me about it!).

In fact, unless the holiday party is scheduled during working hours, be careful not to require, or even strongly encourage, employees to attend—or else you may ring in the New Year with a wage and hour claim. Yes, Virginia, there is a chance an employee may claim the party is work.

Another person in the elevator is upset that the gathering is not called a Christmas party, while still another says that, as an atheist, she objects that there is any party at all. Oy vey, you think. Okay, perhaps I am projecting my thoughts and words on to you. But you get the idea.

Usually, it’s best to call your shindig a holiday party or seasonal celebration to maximize inclusion, but it is more than OK to mention the various holidays celebrated, including Christmas. In fact, please do. Inclusion does not mean eliminating anything that is not universally shared. It is the opposite!

As the elevator door opens to your floor, you see a large menorah with lit candles. Your receptionist thought it would add meaning to the season.

First, address the fire hazard by blowing out the candles (but don’t make a wish). Second, make it clear that employees cannot put up whatever decorations they want, wherever they want.

Reasonable guardrails can be established. There is a big difference between an employee’s office or work station and a public area, for example.

Two people are waiting for you in your office. One is dismayed that a co-worker gave him a thong as a holiday gift. The other is unhappy that there are no decorations recognizing the Buddhist holiday of Bodhi Day.

To prevent the first headache, let workers know that gifts must be appropriate. Tell them that excludes anything sexual, or otherwise inconsistent, with your equal employment opportunity (EEO) policy.

Consider also how you will deal with gifts of alcohol. What if you prohibit its possession on your premises?

Now, here comes my keen legal prowess: Send an e-mail to employees that reads, “If you receive alcohol as a gift, do not open or consume it at work, and please take it home the day you get it.”

As for decorations, invite people to make suggestions before you put them up. You can maximize spiritual inclusion if you involve employees in the process.

Okay, it’s “party time.” You run so quickly to the bar that you don’t even realize that you have knocked over two colleagues in your zest to get there.

Be careful. Control the amount of alcohol you choose to provide, as well as how much you yourself imbibe.

We know from the EEOC that alcohol is a risk factor relative to harassment. We also know that it poses serious safety risks relative to driving.

Ensure that you serve plenty of nonalcoholic beverages and food, too. Egg rolls are a must (inside joke).

Provide vouchers for cab rides home. Flag aggressively, etc.

Another way to minimize legal risk and help those in need: Consider charging for drinks and donating all of the money to a charity (and matching the amount collected). You want the charity to appeal to all or nearly all.

Here’s my chance to raise my personal passion: give to your local animal welfare rescue. And, consider adopting a four-legged friend, in particular, an older cat or dog (unless you have too much unconditional love in your life).

Following a chat with your CEO at the party, you notice two employees dancing suggestively. There is also a love train of employees, in which everyone puts their hands in the pockets of the person in front of them. Well, they intend the pockets but I am not sure that is where there hands end up. I won’t go any further, at least not here.

Because of situations like these, every year around this time there is a bonanza for plaintiffs’ lawyers: “Were you groped at your holiday party? Witness employees grinding on the dance floor? Call 1-800-IRETIRE.”

To minimize the likelihood that workers will have cause to contact one of these lawyers, remind employees that your EEO policy applies to social events and respond quickly and firmly to inappropriate behavior. Reminder, if you are in HR, there is no such thing as being a passive bystander if you see or hear inappropriate conduct or comments. To ignore is to condone.

And pay attention to the music, too. If music will be played, focus on what it will be.

At the risk of showing my age, Rod Stewart’s “Do Ya Think I’m Sexy?” would not be my first choice. There is no good answer to Rod’s question!

Snoop Dogg’s “Sensual Seduction” isn’t much better. The problem with this title? Both words.

But somewhere between Snoop Dogg and Barry Manilow is an appropriate middle ground. May I suggest Adele?

And don’t worry about playing Springsteen’s “Santa Claus Is Coming to Town.” But that’s about as religious as you probably should get.
You hear discussions about an unofficial after-party. You know it is safer to swim in a lava pit than to attend an after-party. So you run to your office.

You read through the holiday cards on your desk. Many are blank because no one knows what to say. If you say “Happy Holidays,” are you declaring war on Christmas? If you say “Merry Christmas,” are you disrespecting your Muslim colleagues?

A generic “Season’s Greetings” works best. But if you know the faith of the recipient, it is more than OK to customize. I always wish my Christian friends “Merry Christmas.” And I like it when people wish me “Happy Hanukkah” if they know I am Jewish. I am less happy if they do so because they think I look Jewish.

Yes, there are risks everywhere you turn. But these risks can be managed with thoughtful planning.

So, HR, let’s do what we do best: think and then balance. And now, I shall try to do the same.

If you celebrate Christmas, Hanukkah or Kwanzaa, I wish you a peaceful and meaningful holiday that corresponds with your faith. If you observe another holiday now, I apologize for not referencing it by name, but I give you my good wishes just the same, as I do for those who recognize no holidays or who celebrate at another time of year.

May peace be with all!

And, please, be good to each other.

Bye, Bye, Bad Precedent

I am please to share below my most recent blog for SHRM:

As we all know, in EEO termination claims, how we treat the “comparators” is critical. Two (2) key questions:

1. Did you let anyone else go for a same or similar reason?

2. Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harshly than X because of my [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2016, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there may have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2016 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially. And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Almost all predict that 2016 is going to be a difficult year. To meet your business needs, you will need agility without being bogged down by bad precedent.

Of course, it is more complicated with unions. You may need to negotiate with the  union. At a minimum, you always should provide the union with notice.

Bad precedent is, well, bad. Now is an ideal time to start making good precedent. Happy New Year.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP