HR and the Movies

From Red Flags in Employee Handbooks to Django Unchained

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Editor’s Note: With the Academy Awards drawing near, TLNT again asked some prominent thought leaders to write about their favorite movie from this past year with a HR or talent management theme. We’ll feature one each day leading up to the Oscars ceremony on Feb. 24.

By Eric B. Meyer

Let’s dispense with the obvious HR lesson from Django Unchained.

According to TMZ.com — and I can actually feel you judging me; my head is literally throbbing – the word “nigger” is used 110 times in the film.

Unless your workplace is the set of Django Unchained, or possibly this one, your company should not permit employees to use racial slurs with impunity.

Like Inglorious Basterds before it, Django Unchained is vintage Quentin Tarantino. It is a brutal revenge fantasy that succeeds primarily on feeding the movie viewers’ bloodlust for the stereotypical bad guys getting theirs in the end.

Workplace right and wrong isn’t so easy to sort out

For those who haven’t seen Django, here’s the no-spoilers summary from IMDB.com:
Former dentist, Dr. King Schultz, buys the freedom of a slave, Django, and trains him with the intent to make him his deputy bounty hunter. Instead, he is led to the site of Django’s wife who is under the hands of Calvin Candie, a ruthless plantation owner.”

From the plot, to the vile language, to the over-the-top violence, everything about Django is blunt and in your face. The Tarantino delivery makes it easy to distinguish between right and wrong.

In today’s workplace, that’s not the case. When it comes to HR compliance, even with good intentions, we unwittingly make mistakes. Unfortunately, this is true with respect to employee handbooks. And it’s a lesson often learned the hard way.

Two years ago, Verizon paid $20 million to settle disability discrimination claims arising from a no-fault attendance policy in the Verizon employee handbook. The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

8 red flags in employee handbooks

No-fault attendance policies are big red flags in employee handbooks. Here are eight others that plague employers across the country:
  1. Illegal overtime policies: Under the Fair Labor Standards Act, all employees must receive minimum wage. Further, covered non-exempt employees must receive overtime pay (at least time-and-a-half) for hours worked over 40 per work week. Employers who mess with this — e.g., by declaring that overtime pay does not kick in until employees work more than 50 hours in a work week — are asking for trouble. And by trouble I mean back pay, liquidated damages, and attorney’s fees.
  2. Missing at-will language: Nearly everywhere throughout the country in non-union private-sector workplaces, employees are considered at-will; i.e., they can be fired for any easy reason or quit for any reason. In some states, an easy way to foul that up is to forget to include at-will language in your employee handbook. If there is an argument that the employee handbook can be read as a contract of employment for a specific period of time, rest assured that the lawyer who represents your terminated employee will make that argument.
  3. No family/medical leave language: You need this for a few reasons. Here are 11 of them. One more reason is to define the method in which FMLA is calculated to cut down on days lost due to FMLA leave.
  4. English Only: Requiring employees to only speak English may have the effect of creating a national-origin discrimination claim. English only policies should used sparingly, and only in certain situations.
  5. Progressive discipline and probationary periods: As Jon Hyman, of the Ohio Employer’s Law Blog writes in his new book, The Employer Bill of Rightsthese policies are holdovers collectively bargained relationships in days when unions were much more common. If you don’t have a unionized workplace, odds are you don’t need these policies either.
  6. Overly broad policies that violate the National Labor Relations Act: Before you tell me, “Hey, my workplace isn’t unionized. Why should I care?” just stop. I’ll tell you why. The National Labor Relations Act applies in the private sector to both union and non-union workplaces. In fact, over the past year or so, the National Labor Relations Board has begun to reinvent itself as a champion of employee rights in non-union workplaces. The Act protects various forms of employee speech, including the right to get together to discuss wages, benefits, and other terms and conditions of employment. So, if you have handbook policies that infringe on this right (e.g., overly broad confidentiality language, social media policies that preclude criticism of the company, etc.), you’re asking for trouble.
  7. Unwritten policies: If you have a particular practice or procedure that effects your employees, here’s a novel idea — be transparent about it. Commit it to writing and put it in your handbook. It’s cheaper than ordering a bunch of crystal balls.
  8. No lawyer review: Yes, you may save a few dollars, initially, by drafting an employee handbook without the employment lawyers reviewing and blessing (and billing you for) it. But in the end, well, let’s just say I told you so.

From Django Unchainedto employee handbook red flags. You’ll never watch a Tarantino movie the same way again.

You can get more from Eric B. Meyer on his The Employer Handbook blog.
Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .