For a manager, the people questions never stop coming. Here are three of them – the staffer who criticizes the office or the manager, the legal issues of layoffs, and how to handle a smoker’s halitosis.
They are answered by attorney Shari L. Lane of Northwest Employment Law in Portland, OR.
Protected vs. snippy remarks
Can the office discipline a staffer for openly criticizing the practice or the manager?
Yes and no. It depends on what the criticism is.
What the office cannot do is discipline anybody for criticizing the conditions of employment. Criticism of that sort is protected by the National Labor Relations Act, which says employees are free to talk amongst themselves about their working conditions.
That issue is getting a lot of attention now, Lane says, mainly because of Facebook. Suppose a staffer posts a comment such as “my boss is a jerk for putting me on the graveyard shift again!” That comment is about the working conditions, so it’s protected.
The picture can get more tangled from there.
The NLRA protection exists even if the comment is totally false. So if the manager disciplines that staffer for posting the remark because it’s not true, the office “can run afoul of the law.”
What’s more, if that staffer later gets fired for some other reason, the manager “has to make it very clear that the firing is not due to the complaint.”
What about comments not related to the working conditions?
Those are not protected, so yes, the office is free to discipline a staffer for disloyalty or simply for having a bad attitude. But be aware that the situation is dicey, because there’s no clear point at which snippiness or rudeness becomes a complaint about working conditions.
Thus, Lane offers what she terms “vague and entirely unsatisfying advice”: proceed cautiously.
Look at what’s being said and the effect the remarks are generating. If the complaints are about working conditions such as wages and hours, “it’s probably not worth the risk to discipline.” But if the complaints are not about the work and are affecting morale or performance, it’s probably necessary “to take the risk just to preserve business operations.”
One more question: What about remarks that are obviously being made to harm to manager or the office such as “my boss is a thief”?
Yes, Lane says, the office has a right to discipline or fire a staffer for a comment of that type. That’s defamation of character.
Layoff legalities
When making layoffs, can the choices start with the highest-paid staffers?
“Absolutely,” Lane says. An employer can take whatever steps are necessary to stay in business, and one of those steps can be laying off the higher paid employees.
But once again, but careful.
If the higher paid employees are in a protected category such as race or age and if the office replaces them with people not in that same category, expect a discrimination claim. Be especially careful of age, because the people who make the most money are usually the ones who have been in their jobs longer and are therefore older.
The safest approach is to replace the protected employees who are laid off with new employees in the same protected group. If Staffer Laid Off is 55 years old, refill the position with somebody over age 40.
Or balance out the layoffs among protected and nonprotected staff. Dismiss an equal number of over-40 and under-40 people, or men and women, or white and African American staffers.
Being able to show that the demographics before and after the layoff are the same puts the office in a relatively safe legal position.
Another way to skirt the issue is to let the higher paid staffers keep their jobs but at a lower salary. Be honest about it: “We cannot continue to pay your full salary. We can pay you a lower salary of $X, and if you agree to that, we will save your job for as long as possible. If not, our only option is to let you go.”
With unemployment high, many employees will be glad to accept the offer, she says. And if so, the office saves not only the salary but the expense of hiring and training a replacement.
Cough cough! wheeze wheeze!
Can the office prohibit staff from smoking during breaks?
Cigarette breath and smelly clothes may be unpleasant for the rest of the office, but the answer is no, Lane says.
Smoking is a legal activity, and whatever legal activities people engage in on their own time “is their own business.
There’s a way around it, however: just set a policy on dress and professionalism requiring that staff look and smell clean at all times. Then if anybody complains about the odor of the smoke, address it as a hygiene issue. Smoking is permitted, but coming to the office smelling like an ash tray – or smelling bad from any source – is a violation of the policy.
Lane notes that it’s possible to add a positive spin to that by offering some incentive for staff to quit smoking. For example, many insurance companies now give reduced health insurance premiums to employees who don’t smoke or who participate in wellness programs. Or the manager can offer a personal reward to any staffers who quit smoking.
