Nix Boss-Employee Dating

By: Elaina Smiley, Esquire es@muslaw.com

Recent studies show that many people meet their significant other in the workplace. But if the dating relationship is between a supervisor and a subordinate, it can be a source of problems in the workplace.

Some thorny issues arise when a supervisor is romantically involved with someone who works for him or her, including:

• The reaction of other employees. Other employees may suspect favoritism or resent any advancement the supervisor gives to the “favored” subordinate, even if it was legitimately earned. These feelings could blossom into race, age, gender or other discrimination claims, which could prove costly to the company.
• Interference with the supervisor’s ability to manage. A supervisor may feel unable to give a frank performance appraisal to a subordinate with whom he or she is or has ever been personally involved. A supervisor may share confidential or proprietary information about the company with the subordinate.
• The fallout when the relationship turns sour. The end of the relationship often puts the supervisor and the company in a no-win situation. For instance, many sexual harassment claims are filed when a relationship ends. Furthermore, the parties involved in the relationship may engage in personal arguments and confrontations in the workplace. A former boyfriend or girlfriend may interpret any subsequent negative action taken against them as retaliatory, which could lead to a claim of discrimination or harassment.
  
  An employer has the right to set a policy that prohibits dating between coworkers, but in this day and age, it may feel reluctant to do so. At the very least, however, employers would be wise to prohibit dating between supervisors and subordinates and remind all employees that professional conduct will be required at all times within the workplace.

EMPLOYMENT AGENCIES AND EMPLOYEE CONFIDENTIALITY POLICIES

By: Jane Lewis Volk, Esquire jlv@muslaw.com

A federal appeals court recently affirmed an order of the National Labor Relations Board granting reinstatement and back pay to an employee of a temporary employment agency who had been discharged pursuant to an employee confidentiality agreement which was held to be unlawful under the National Labor Relations Act (“NLRA”). (Northeastern Land Service v. NLRB, U.S. Court of Appeals for the First Circuit, decided March 13, 2009.)

The agency required their employees to sign an employment agreement containing a confidentiality clause prohibiting them from disclosing the terms of their employment to “other parties.” In this case, the employee had complained about his wages to the company where he was assigned (the client of the employment agency). He was fired for violation of the confidentiality clause.

The NLRA protects employees’ rights to freely discuss the terms and conditions of their employment among themselves (yes, even in non-union settings). This disclosure was not to a fellow employee as anticipated by the NLRA, but to the client. However, the NLRB and the court of appeals reasoned that the confidentiality agreement would chill those free discussion rights and thus was an unlawful agreement. Any firing under that policy was therefore violative of the NLRA.

While you undoubtedly do not want the individuals whom you place with your clients to be complaining in their workplaces about the terms of their employment, making them sign such a confidentiality agreement is not the way to go. The other important message from this decision is a reminder that the NLRA applies to non-union employers, contrary to conventional wisdom (which is so often wrong).

Employers Not Covered by FMLA May be Obligated to Follow FMLA Based on Handbook Provisions

By: Elaina Smiley, Esquire es@muslaw.com

Does your company have a Family and Medical Leave Act (“FMLA”) policy when you do not have 50 or more employees? If you do, you may be at risk for giving your employees rights under FMLA that your company would not otherwise be obligated to follow. Typically, FMLA applies only to employers who employ at least 50 employees within a 75 mile radius. An employee can be eligible for FMLA if he or she has worked for a Company for a total of 12 months and for at least 1,250 hours in the previous 12 months.

In a recent decision issued on March 10, 2009, Reaux v. Infohealth Management filed in the Northern District of Illinois, the Court denied an employer’s motion to dismiss an employee’s FMLA claim because of promises that were made to its employees in a handbook. In the case, both parties admitted that the employer did not have 50 or more employees in a 75 mile radius. However, the Plaintiff argued that the employer was estopped from denying her FMLA leave based on provisions contained in the handbook. The handbook contained a FMLA policy that defined "eligible employees" as those having worked for the company for at least 12 months and 1,250 hours during the 12 months preceding the leave. The policy promised that eligible employees "shall be entitled" to FMLA leave for the birth of a child. In addition, the employee’s supervisor told her that she would be “entitled” to leave if she filled out the FMLA paperwork. The employee completed the necessary paperwork, took leave for the birth of her child and was fired a few days prior to the expiration of her 12 weeks of approved leave. The policy did not contain a provision that stated that FMLA coverage was only applicable to those employees who worked at a location with 50 or more employees in a 75 mile radius. The court permitted the employee to proceed on her FMLA claim.

Although this case is not precedential in Pennsylvania, employers should be very cautious in how they draft their handbooks and policies. Giving employees rights under FMLA means that the company may be obligated to hold open the employee’s position for 12 weeks while the employee is on leave and be obligated to restore an employee to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Furthermore, employers could bind themselves to other provisions of FMLA such as providing intermittent leave in accordance with the Act and providing group health plan insurance to employees on leave. Employers should review their handbooks to ensure that their policies are not creating unintended consequences and are in compliance with current changes to employment laws.