The Costs of Not Taking COVID-19 Seriously

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By Kathleen J. Jennings (kjj@wimlaw.com)

By all accounts, the number of COVID-19 infections (and deaths) are on the rise and are likely to increase even more after Thanksgiving. At the same time, there is a great political divide as to how seriously folks take the virus. Politics aside, what are some of the potential costs to your business if you fail to take COVID-19 seriously?

As an initial matter, when I talk about taking COVID-19 seriously, I mean that your business is following CDC guidelines, which provides strategies and recommendations for employers responding to COVID-19, which include disinfecting, hand washing, social distancing and the wearing of masks. Employers should also be familiar with OSHA guidance, which focuses on jobs classified as having low, medium, high, and very high exposure risks, and provides specific recommendations for employers and workers within specific risk categories.

So what are some of the potential business consequences of failing to take COVID-19 seriously?

Worker Absenteeism. If workers are not protected from exposure to the virus, they are more likely to get sick, and if they get sick, they cannot come to work. Worst case scenario–one sick worker infects a number of co-workers because no one is taking precautions in the workplace to avoid the spread of the virus, and now you have a number of employees who cannot come to work. Or an exposed worker then exposes his/her family, and they must stay home to care for a sick child. Or maybe a worker is afraid to come to work because they are immunocompromised or live with someone who is immunocompromised. How will you run your business if you don’t have enough people coming to work?

OSHA inspection. If any of your employees believes that you are not taking the necessary precautions to protect them from exposure to COVID-19, they can call OSHA and make a complaint against your business. A federal OSHA inspector may show up at your business to conduct an inspection. They will want to see evidence of your compliance with the OSHA laws, regulations, and guidance. Oh, and during the inspection, if they see something that is unsafe, even though completely unrelated to the initial complaint, they can cite you for it. If you can’t show compliance, you may receive a citation and fine. [And remember: you cannot, and should not, retaliate against any employee for making a complaint to OSHA.]

Employee turnover. Once the pandemic is over, your employees are going to remember how they were treated during the pandemic. Did you listen to their concerns? Or were you dismissive of them? When the economy stabilizes and the job market opens up, the employees who felt like the company did not care about their safety are going to look around for other opportunities. And what do you think those departing employees going to say about your business on job hunting sites?

Union organizing. Less likely, but still within the realm of possibilities. When employees feel like management is not listening to them, or does not care about their safety, they may reach out to a third party, such as a union, to act on their behalf. Do you really want union organizers sniffing around your employees?

Lawsuits. The least of your concerns, actually. While it is extremely difficult to pinpoint where a person was exposed to COVID-19, that is not going to stop enterprising lawyers from filing lawsuits against businesses to see if they can scare up a quick settlement Some states, such as Georgia, have enacted statutes that provide immunity from liability for COVID-19 exposure, which makes it even less likely that a lawsuit will be successful.

Adverse publicity. If your business is open to the public, you can count on members of the public to post something on social media about your compliance (or lack thereof) with COVID precautions or local orders. With photos. Do you want to be that business?

Look, we are all tired of COVID-19. Heck, I’m tired of writing about it. But until there is a reliable vaccine, it’s not going away, so we all need to do what we can to minimize the spread.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Jurors Say the Darnedest Things

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By Kathleen J. Jennings (kjj@wimlaw.com)

During a trial, lawyers can be so focused on the law and facts of a case that they may not recognize that jurors may be focused on different things entirely. A federal case out of Connecticut makes this point quite nicely. (SEC v. Westport Capital Markets, LLC, No. 3:17-cv-02064 (JAM)(D.C. Conn., 10/26/20). It is not a labor or employment case, but the conduct of a particular juror is so interesting I had to write about it.

The Securities and Exchange Commission (SEC) filed a civil action against Westport Capital Markets, LLC, and its owner and chief executive officer, Christopher E. McClure, for failing to comply with their disclosure obligations under the Investment Advisers Act. The district court granted summary judgment in favor of the SEC on three of its claims, and the jury at trial ruled for the SEC on the two remaining claims.

After the trial, one of the jurors wrote a glowing letter to one of the SEC’s attorney’s congratulating him on the victory and complimenting the presentation of his case at trial. In that letter, the juror also wrote this about the wife of defendant McClure:

Here’s an aside you might find interesting. During our deliberations we spoke of many things and McClure’s wife came up. She looked like she should have been at the Country Club playing Bridge. Her appearance came up and one of the jurors (who was a store manager at Macy’s in West Hfrd) asked if anyone noticed her shoes—I did! The manager told us they cost $3000 a pair. Ouch! You might pass that on to defense attorneys you know.

Ouch, indeed! That’s right, the jurors were commenting on the appearance and the three thousand dollar shoes worn by the defendant’s wife. I imagine that they were very nice shoes, but they clearly did not make the jury sympathetic to the defendant’s case. (And the juror’s letter was also not a reason to set aside the verdict, said the court).

This is why I take great care to give instructions to clients and witnesses how to dress at trial. Before one trial in Atlanta federal court, I found myself at a Big and Tall store buying button up shirts and ties for a client’s manager to wear because he did not own any. I have also told a client’s officer to leave her Louboutin shoes at home when she came to court. Appearances matter, especially at trial.

Coincidentally, I have also heard that juries tend to have a higher opinion of attorneys who dress well and look “prosperous,” the theory being that if the attorney is prosperous, she or he must be a good attorney. This may explain why there are always custom suit makers at many bar functions. And it means that maybe I need to find some $3,000 shoes to wear at my next trial….

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Do I Need To Give My Employees Time Off to Vote?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Election Day is one week away, so it is a good time for employers to review the laws governing voting leave in the states where they do business. Chances are that you may be required to give employees some time off to vote.

In Georgia, there is a law that generally requires employers to give employees leave time to vote. O.C.G.A. 21-2-404 provides as follows:

Each employee in this state shall, upon reasonable notice to his or her employer, be permitted by his or her employer to take any necessary time off from his or her employment to vote in any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote on the day on which such primary or election is held; provided, however, that such necessary time off shall not exceed two hours; and provided, further, that, if the hours of work of such employee commence at least two hours after the opening of the polls or end at least two hours prior to the closing of the polls, then the time off for voting as provided for in this Code section shall not be available. The employer may specify the hours during which the employee may absent himself or herself as provided in this Code section.

Translated into regular language from legalese: a Georgia employer must give employees up to 2 hours off to vote, with the following conditions: (1) the employee gives reasonable notice of his/her intention to take the time off to vote, and (2) the employee’s work schedule on Election Day does not begin two or more hours after the polls open or end two or more hours before the polls close.

An employer who violates the statute is guilty of a misdemeanor.

The statute does not specify whether an employer must pay the employee during this voting leave, which means that an employer is not required to pay employees for their voting leave time. If an employer decides to pay employees for voting leave time, it should be consistent in its practice–if you decide to pay one employee for voting leave time, you should pay all employees for voting leave time.

The Georgia statute predates the current early voting periods. A literal reading of the statute would make it applicable only to voting leave on Election Day, and not during the entire voting period. However, there may be a practical reason for an employer to allow employees to use voting leave during the early voting period, especially when long delays in voting are expected on Election Day–it will limit the number of employees who are out of work at one time to vote. In other words, an employer can use an expanded voting leave policy to spread out the number of absent employees during the early voting period rather than have a large number out on Election Day. As always, an employer needs to be consistent in the application of its policy to avoid potential claims of discrimination.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Sorry Dude: Title VII Does Not Protect An Expectant Father From Pregnancy Discrimination

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By Kathleen J. Jennings (kjj@wimlaw.com)

Yes, you read that right–an expectant father cannot assert a claim for pregnancy discrimination under Title VII of the Civil Rights Act of 196, as amended. And we know this because an expectant father in New York tried to assert such a claim under Title VII and New York law, and the lawsuit was dismissed. (Van Soeren v. Disney Streaming Serv. , S.D.N.Y., 19 Civ. 10196 (NRB), 10/16/20). Not surprisingly, the Court held that Title VII’s prohibition on discrimination on the basis of pregnancy applies to employees who are actually pregnant, and not to spouses of pregnant employees.

Based on the facts alleged in the lawsuit (and the case was dismissed on a motion to dismiss, so we only have the plaintiff’s side of things), the plaintiff, Van Soeren, worked in a pretty toxic work environment. He alleged that various supervisors and co-workers “sham[ed],” “harass[ed],” and “treated [him] differently from all other employees at the Company” as a result of his “familial status vis a vis his spouse’s pregnancy.” For example, before plaintiff had disclosed his wife’s pregnancy to anybody at work, a co-worker said to plaintiff that he “shouldn’t have a kid,” and in another instance stated, within hearing distance of plaintiff, “I don’t know why he [plaintiff] decided to have a kid.” Another employee asked plaintiff whether he had a good reason for having a child. In one instance, presumably once plaintiff told his co-workers that his wife was pregnant, another co-worker sprayed baby powder on plaintiff. When Van Soeren returned to work after paternity leave, that same co-worker allegedly made a comment to plaintiff about still birth and improperly developed fetuses. Charming.

So while the plaintiff’s co-workers were definitely obnoxious, their actions did not amount to pregnancy discrimination against the plaintiff. At best, the plaintiff had a claim of discrimination on the basis of “familial status,” which is not covered by Title VII.

Even though the plaintiff failed to state a claim for pregnancy discrimination, an employer should not tolerate the kind of conduct allegedly directed at this plaintiff by his co-workers. If these folks are making negative comments about children and childbirth to a man, it is likely they may say the same things to a pregnant woman–and that could lead to a valid claim under Title VII. Furthermore, this kind of workplace bullying is not likely to enhance employee morale or productivity.

Keep in mind also that a new father may still have rights under the FMLA or state leave laws if he works for a covered employer.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Employee or Independent Contractor? DOL Issues Proposed Worker Classification Rule

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By Kathleen J. Jennings (kjj@wimlaw.com)

Worker classification is a hot issue issue right now. The recent California law that classifies most workers as employees has completely upended the gig economy in that state, so it is no surprise that the law is being challenged by a number of business groups.

Under federal law, whether an employer classifies a worker as an employee or an independent contractor can have major economic consequences, especially if the worker is misclassified. For example, wrongly misclassifying an employee as an independent contractor can result in liability under the Fair Labor Standards Act (FLSA) for unpaid minimum wage and/or overtime compensation. Multiplied by two if the misclassification is considered a willful violation of the FLSA.

Today, the U.S. Department of Labor (DOL) announced a proposed rule offering what it claims to be clarity to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor.

 In the proposed rule, the DOL would:

  • Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);
  • Identify and explain two “core factors,” specifically: (1) the nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
  • Identify three other factors that may serve as additional guideposts in the analysis including: (1) the amount of skill required for the work; (2) the degree of permanence of the working relationship between the worker and the potential employer; and (3) whether the work is part of an integrated unit of production; and
  • Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

As a practical matter, this Proposed Rule is intended to be more employer-friendly than the guidance of the previous administration on the same issue. It is not clear if this Proposed Rule will be enacted as a Final Rule before the election. If enacted before the election, a change in administration after the election likely will result in further change.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

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In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.

Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.

The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.  Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

DOL Issues New Guidance: No FFCRA Paid Leave If School Is Open But Parent Chooses Remote Learning

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Yesterday, the Department of Labor issued some new guidance on the paid leave provisions of the Families First Coronavirus Relief Act (FFCRA). The new guidance addresses the availability of paid leave to parents who are choosing to let their children go to school remotely.

By way of background, the FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from the effective date through December 31, 2020.

Generally, the Act provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

According to the updated guidance, if a child’s school is closed due to the pandemic, and the parent must stay home with the child, the parent is eligible for paid leave under the FFCRA. However, if the school is open for in-person learning, but offers remote learning to those parents who choose not to send their children to the school, the parents who choose the remote learning are not eligible for paid leave under the FFCRA:

Q: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)
A: No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her.

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Likewise, if the school is open for in-person learning on alternate days, a parent would be eligible for paid leave on those days that the school is closed.

Therefore, if an employee is requesting FFCRA paid leave to care for a child who is not at school, the employer should inquire as to whether the school is open for in-person learning. It may also be a good idea to check the school district’s website for particulars.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The Cost of Ignoring Racist Behavior in the Workplace

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What is the cost of ignoring racist behavior in the workplace? For a California company, it is $1.25 million dollars.

Air Systems Inc., a subcontractor for the construction of Apple Inc.’s new headquarters in Cupertino, California, paid $1.25 million dollars to eight employees to settle a lawsuit brought by the EEOC that alleged race discrimination in violation of Title VII. Among the allegations: ASI management refused to discipline a White co-worker who repeatedly taunted Black workers with a racist word; the company allowed racist graffiti to remain at the construction site; and it did nothing to address a noose that was hung at the site when it was reported to management.

The Consent Decree entered as part of the settlement also provides substantial non-monetary relief: ASI must retain an Equal Employment Opportunity Consultant to monitor ASI’s compliance with Title VII and the Decree; it must conduct training of its employees; and it must submit regular reports to the EEOC. Basically, ASI will have the EEOC all up in its business until December 31, 2022.

The Black Lives Matter movement has shined a spotlight on the issue of race discrimination. Now, more than ever, companies that ignore complaints of race discrimination, racist comments, and racially charged symbols such as nooses, do so at their peril. Indeed, companies need to be proactive in their training and messaging to employees that racist comments and behavior will not be tolerated in the workplace.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Hey Georgia Businesses: Is Your COVID Warning Sign Compliant?

As I discussed in an earlier blog post, this month, Georgia enacted a COVID immunity law. Georgia businesses will generally be protected from liability over COVID-19 exposure except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. In addition, Georgia businesses that post a warning sign will be entitled to additional protection from liability due to a rebuttable presumption of assumption of the risk by a claimant.

Many businesses are posting the COVID Warning Sign. And what they have discovered is that the sign is very large. The sign must be printed in at least one-inch Arial font placed apart from any other text. One inch Arial font translates to about 72 point font. In other words, this is not a little sign you can print off your computer and tape to a door. It is a big sign that is best done professionally by a sign business.

Some businesses are concerned that the presence of the sign will scare off customers. However, so many businesses appear to be posting these signs that it is likely that folks will stop really noticing them. Because this sign is essentially telling the public “Hey, don’t sue me if you contract the COVID,” it makes sense to go ahead and post one so you can cover your assets.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Do You Know What Your Managers Are Doing on Social Media?

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With so many people working and playing at home, it is no wonder that many of them are utilizing some form of social media to keep in touch with others. That includes your managers.

Why should you care about what your managers are doing on social media? Because what they say and do can reflect upon your company. And because to a plaintiff’s lawyer, your manager’s social media posts or activity can be considered evidence. To be used against your company.

Which means that your managers need to understand that whatever they post, share, or follow can be reflection on them and the company they work for, especially if their profile includes the name of their employer. That post that a manager “shares” that expresses disdain for the Black Lives Matter movement? Do you want to see that as evidence in a lawsuit for race discrimination filed by one of your employees? Or that video denouncing gay marriage? That may also show up as evidence in a discrimination lawsuit. Even if they do not become evidence, they may cause some people to stop doing business with your company.

Even more dangerous are the posts where a manager threatens or harasses an employee online. Your policy against harassment should make it clear that emails, texts, and social media posts that harass another employee (or third party) are prohibited. And it is usually not a good idea for managers and supervisors to be “friends” with their subordinate employees.

The manager’s position and industry also matter. It just doesn’t look good for a male teacher to be “following” hundreds of very young women on TikTok. Or for a safety coordinator to follow pages dedicated to the love of illegal drugs. Optics, people.

So what is an employer to do? The first step is to have a comprehensive written Social Media Policy. You should revisit and modify that policy as social media evolves. The policy should provide guidelines for social media use, both professionally and personally. A competent employment lawyer can draft a policy that will fits the needs of your organization.

In addition, the company should regularly communicate to its supervisors and managers that they should not post, share, or do anything on social media that would violate any company policies, such as:

  • the policy against harassment,
  • the company’s ethics policy,
  • the policy against violence, or
  • the EEO policy.

And that there will be consequences if they violate this policy.

Finally, it is also a good idea to have a computer and internet policy that spells out the types of sites employees can and cannot visit, and that advises all employees that they have no expectation of privacy in any company owned computers or internet use. Even when such a policy is in place, I am always amazed at how many employees download porn on their company owned computers. Which just makes my job as defense counsel more difficult.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

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