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Employment Law Update

Did your employees move out of state during the pandemic?

By Mike O’Brien

Here’s a growing concern for employers over the last couple of years: discovering that an employee has moved from one state to another while working remotely during the pandemic. This situation presents a number of problems and challenges for employers.

Imagine the situation where you are a state-based company and hire someone who lives in the state. Unless the job duties outline something else, in this situation there is at least an implicit agreement that the employee will live and work in your state and stay here while employed. Based on this agreement you, the employer, apply your state laws to the relationship, pay your state taxes, report the new hire in your state, etc. If, however, the employee moves to another state and works remotely from there, suddenly you have to deal with a whole new (and rather different) set of employment and tax laws and reports which you may not want to apply to your business. If the employee is valued, you will have been backed into an undesired situation of choosing between the employee and the new business location without advance consideration and business planning (i.e., “Surprise, I just opened a California office for you!”) If the employee moves to another country, the situation is made even more complex.

One of the lessons of the current telecommuting-pandemic workplace is that you probably have to more clearly define where remote employees can work. You also should require them to notify you and get permission before they move out of the state where you expect them to work.
Employers behaving badly

Maybe it’s the pandemic, or the labor shortage, or the great resignation, or just the crazy times in which we live, but recent news accounts have reported stories of employers acting quite badly in termination situations. For example, in Georgia, a man quit his job and complained to the government that he did not get his final pay. Instead of immediately mailing the final paycheck, however, the involved employer bad-mouthed the employee on social media and then dumped over 90,000 pennies onto the employee’s home driveway. The pennies, which added up to the amount of the final check, also were covered with some kind of an oily gooey substance. Now the government is suing the employer, arguing that the penny-dumping and related misconduct were acts of illegal retaliation. Another is the unhappy story of the boss who allegedly tried to punch a worker while firing him. A newspaper reported the employee claimed the boss had “done this several times over the years” so the worker decided to leave to let the boss “cool off” and return later to talk to him. The employee drove around for a few minutes when the boss allegedly rammed his vehicle into the back of the fired worker’s truck, tried to ram the truck twice more, and then sped away as police arrived. Criminal charges are pending. In response to the story, the employer’s attorney offered a solid, “No comment,” but added that the parties are “working toward a positive outcome.”

Are NLRB workplace rules about to change again?
One of the challenges for businesses trying to comply with employment law is that the law changes sometimes based on who holds political power. Perhaps the best example is the federal National Labor Relations Board (NLRB). Among other laws, the NLRB enforces the National Labor Relations Act (NLRA). The NLRA regulates both union and non-union workplaces by giving employees the right to act in concert (i.e., together) to talk about or try to change working conditions. Employers can run afoul of these rules by “chilling” these rights, for example with careless restrictive statements in policies, handbooks, or during investigations. Because the United States president appoints its members, the way the NLRB approaches such issues tends to be more employee-friendly under a Democratic president and more business-friendly under a Republican president.

In 2017 during the Trump administration, in a case named after the Boeing Company, the NLRB explained it will consider/resolve such issues in one of three categories: (1) lawful rules that don’t interfere with NLRA rights or where adverse impact is outweighed by employer justifications; (2) rules that should be scrutinized case-by-case to determine if they interfere with rights and whether there is a legitimate justification for them; and (3) unlawful rules that prohibit or limit protected conduct and where adverse impact is not outweighed by the employer’s justification, for example, a rule that prohibits employees from discussing their wages or benefits with each other.

According to a recent news article from the national human resources organization SHRM, the NLRB now has asked for briefs (in a pending case) on the point of whether this Boeing standard should be changed. The NLRB also asked whether certain types of work rules—such as rules requiring confidentiality during investigations, rules prohibiting disparagement of company officials, and rules limiting outside employment—should always be unlawful. If the NLRB changes its analysis on these issues, employers may have to re-write a number of sections in their policies and employee handbooks in order to comply. Stay tuned…we should know about what will happen in the spring or early summer of 2022.
Responding to complaints essential to minimize liability risks

A woman has filed a federal court lawsuit alleging that in the summer of 2020 she told her supervisors about a man repeatedly harassing her at work. The lawsuit contends nothing was done by the employer, and then the alleged harasser attacked her in the parking lot as the employee left work. According to the newspaper story, “The woman said if a child at the pool had made the same complaint, protocol dictates that police would have been called, an incident report would have been filed and the man would have been banned. But the lawsuit alleges that employees were not adequately trained to deal with potentially dangerous patrons when reported by other adults, the woman said.” In response to the news article, the employer has noted, “some different perspectives” based on its own investigation. Employers cannot guarantee that no one ever will harm their employees, but they must take reasonable steps to protect employees in workplace-related situations, even if the threat is from a non-employee. If the facts alleged in this case are true, the employer probably should have at least intervened, investigated, talked to the alleged harasser, removed him from the scene if justified, called the police if necessary, and provided the threatened employee an escort to her car when the work shift ended.










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