HR Advisor Newsletter – June 2020

With all of the changes everyone has had to make over the past few months, not to mention the heightened stress we’re all feeling, it may be tempting to let certain practices slide or be less strict about following particular workplace policies. Flexibility during crisis situations may make sense in certain situations, but there are some areas where you don’t want to fall short of your usual standards. Documentation is certainly one of those.
Documenting decisions you make as an employer can feel like an extra, unnecessary step. It is additional work, after all, and that work adds up. Nevertheless, documentation is an important part of risk management, and the price of not documenting your actions can far outweigh the costs of doing so, especially if an employee were to ever allege discrimination.

When we talk about discrimination in the workplace, we’re not referring simply to the act of treating people differently or giving someone preferential treatment. Employers rightly treat individuals differently all the time. People are placed in different jobs, receive different pay, and work different hours. Some have better parking spots than others, vegetarians may get a special meal when lunch is ordered for the office, and the big boss may get away with a gruff personality while others are expected to be more cordial. 

Rather, when we talk about the discrimination that employers need to avoid and prevent, it’s discrimination that’s based on an employee’s inclusion in a protected class. A number of laws at both the federal and state levels make workplace discrimination unlawful if it is based on race, color, age (over 40), sex, pregnancy, religion, disability, national origin, ethnic background, genetic information (including that of family members), military service, and citizenship or immigration status, among other classes.

The best way to avoid discrimination is to base employment decisions only on factors that are job-related, and this is where documentation comes in. Documenting the job-related reasons for your business decisions helps show that your decisions were not done for discriminatory and illegal reasons. Absent that documentation, you have nothing to show the legitimate basis of your decisions if any of your employment decisions are challenged. That makes it harder to prove that you weren’t discriminating unlawfully. Below are a few areas where documentation is especially important.

Discipline and Termination
Documenting all the actions you take to warn an employee about poor performance or unacceptable behavior before terminating their employment demonstrates that you made a good faith effort to help the employee meet expectations and avoid termination. You’re on safest ground terminating employment if you can show that the employee understood what was expected of them and what would happen if they failed to improve. 

Investigations
Make sure that you document every step of an investigation as well as the resulting actions taken so you can show that you fulfilled your legal obligations. Having a clear record will also help you ensure that similar situations are handled consistently in the future.

Hiring
Employers sometimes get into trouble with the law by asking questions of job candidates that reveal their membership in a protected class. Asking about church attendance, for example, may be intended to ascertain weekend availability, but it gives the applicant an opportunity to claim they were discriminated against. Hiring decisions should be based on job-related factors. Proper documentation shows that they were. 

Promotions and Pay
Documentation here should show that pay and promotion practices are systemized and based only on bona fide job-related reasons. The federal Equal Pay Act requires men and women in the same workplace be given equal pay for equal work while Title VII of the Civil Rights Act requires that employers not discriminate based on someone’s inclusion in a protected class. If you lack documentation explaining why one employee is paid more than another in the same position, your risk of being sued (and losing) goes up substantially. 

Using video conferencing apps for meetings can make for a more productive and engaging time than group discussions over the phone, but there are also some risks to consider:

Attire
When working from home, the desire to work in comfortable clothes could tip from casual to inappropriate. You may have seen memes and stories about employees wearing professional tops without appropriate bottoms or family members dashing by too much in the buff. Fortunately, these wardrobe malfunctions are easily preventable with a little planning on the employee’s part. Remind them to plan ahead. 

Backdrop
Ask that employees also take stock of what’s in their background before turning video on. Could there be inappropriate personal items or art that some might consider offensive? A number of video conferencing apps have virtual backgrounds that can eliminate both the threat of harassment as well as general distractions.

Video vs. Phone Call
Ensure that virtual meetings are scheduled equitably. For example, if a manager checks in with men on the team over the phone, but uses video for one-on-one meetings with the women, that would be a cause for concern.

Virtual Happy Hours
Both the use of alcohol and the act of communicating over a screen can decrease formality. Set expectations around respectful behavior and encourage employees to drink responsibly, if allowed, during happy hours. Remind employees that harassment and other conduct policies apply, just as they would at any other company-sponsored function. 

Further Considerations Around Virtual Harassment

· Handbook Policies: Review your company harassment and discrimination handbook policies and ensure they’re inclusive of, and applicable to, remote work and interactions.

· National Origin and Race: An April 2020 Ipsos survey found that more than 30 percent of Americans have witnessed someone blaming Asian people for the coronavirus pandemic. The EEOC recently suggested that employers reduce harassment risk by clearly informing employees that fear of COVID-19 cannot be “misdirected against individuals” based on any protected characteristic, including national origin or race. Be alert for any discriminatory comments and be ready to act.

· Age: Keep an ear out for jokes about employees’ age. A seemingly harmless barb about an older employee’s unfamiliarity with technology could result in a discrimination claim.

HR Tip of the Month

Employers should use a test — called the primary beneficiary test — when determining if a worker can be properly classified as an unpaid intern or if they need to be classified as an employee and paid at least minimum wage and overtime. Before hiring an unpaid intern, employers should consider the following:

· The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.

· The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

· The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

· The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

· The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

· The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

· The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

No single question will disqualify the worker from being classified as an unpaid intern. Instead, the employer should look at the answers as a whole. If in doubt, do not classify the employee as an unpaid intern.