Virtually every entrepreneur in the start-up phase of his or her venture looks forward to the time when the small businesses grows to the point where hiring employees becomes necessary. However, many entrepreneurs are unaware of the numerous labor issues that employers must contend with. Charles H. Wilson is a labor attorney with global law firm Cozen O’Connor that specializes in businesses and labor and employment matters, including litigation, labor and employment issues.
According to Wilson, there are five major issues in the workplace that small business owners need to be aware of:
Facebook posts can be used in harassment decisions. Social media is ubiquitous and people are more comfortable talking online about almost anything and everything — including their co-workers and/or supervisors. “What will happen is other people find out or the people that are the subject of the comments will find out, and they’ll file a harassment complaint. Or they may complain that this person is spreading rumors about me or is saying some very derogatory things on Facebook where other coworkers can see, and this is affecting work,†says Wilson. Courts are increasingly allowing into evidence posts made in the social media space to determine whether harassment did take place. “I think that the fix is just looking at your policies and revising them as necessary in a way to make sure that you’re not telling employees that you’re going to punish them if they talk generally about the terms and conditions of their employment, which could include criticizing the competence of their coworkers.â€
Transgender discrimination is now actionable. According to Wilson, Title VII of the Civil Rights Act of 1964 does not protect transgender or transsexualism per se, but it does protect employees from gender discrimination. “There has been this notion that if you stereotype individuals for not, for example, acting female enough or acting male enough in the workplace, that is within the purview of gender discrimination,†he says. “So that concept has evolved to cover, currently, transgender because the theory is if a person is about to have a sex change or has had the sex change, but the coworkers or the supervisors in the workplace are harassing this individual because of the stereotype that they’re not…on the surface they
look like a woman, but they’re not acing like a woman because they want to get a sex change to a man.†Wilson adds that the U.S. Equal Employment Opportunity Commission has taken the position that that type of discrimination where you’re stereotyping transgendered individuals is illegal gender discrimination, and advises that small businesses make it clear in their policies that gender discrimination won’t be tolerated.Not hiring/firing based on a criminal background could be considered discriminatory. “The EEOC believes even more now than before that criminal background checks will have a disparate impact on racial and ethnic minorities,†asserts Wilson. “The EEOC is they’re taking a harder stand and they want to see that employers have truly justified why they are using criminal background checks as part of their application process. And they want to precisely know and see or have the employer articulate the business reason.†He says if you have a small business and you’re hiring somebody that’s going to be handling money, that employer can justify using a criminal conviction to not hire that person, particularly based on theft or some type of theft offense. In short, the prior crime must tie specifically to the position at issue.
Can and should you seek waivers of collective and class actions? A wage and hour case is a lawsuit by an hourly employee claiming they worked off the clock or after their shift or before their shift, but they weren’t paid for the time, or were classified as an exempt employee, but they think that they should not be so classified for some reason. “Smaller businesses are very vulnerable [to these types of lawsuits] because a lot of times, you’re not going to be in a position to get insurance that’s going [to] protect you from cases like that,†Wilson says. “They can be very costly to defend, and if you’re found to have violated the Fair Labor Standards Act or whatever state law at issue, you’re going to have to pay a lot of money.†He says many employers have implemented mandatory arbitration of such claims if the employees also agree to waive rights to proceed collectively or to sue as a representative of the class.
Provide time for an uninterrupted work break or meal break.
In Brinker v. Superior Court, the California Supreme Court issued clear rules on how and when meal and rest periods must be provided. “For a small business when it comes to meal breaks, is that if you’re going to provide a meal break, make sure that you are truly providing time that the employee is truly free from doing any work,†suggests Wilson. ‘Because if you say ‘okay, well, from 12 to 1, this is when you can take lunch, if something comes up where you’re having to have that person do something during their lunch break,’ that is compensable time.†In short, the employer has to make sure that they are truly giving employees an uninterrupted period of time, and if they do any work, the employee should be compensated. “Because if over a couple of years there’s a continuous pattern of doing that, where they’re taking a lunch break, but they’re not truly free from doing any work and a lot of times they have to do something, the business can be held liable for that overtime, for that unpaid time.â€