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Small business and franchise owners, here are important employment law tips for handling a new generation of employees.
In the best selling novel “The Girl with the Dragon Tattoo”, the protagonist, Lisbeth Salander, is a computer hacker in her 20’s who illegally breaks into computer networks, travels with forged passports and uses her criminal skills to earn a living doing investigative work for her employer, Milton Security. Because of the secretive and solitary nature of her job duties, the dragon tattoo on her shoulder blade and her pierced nose and eyebrows never arise as issues with her employer. However, outside the world of fiction, how should an employer respond if their 25 year old salesman arrives at work one morning, sporting his own version of a dragon tattoo, with new and highly visible facial tattoos and multiple piercings?
As members of the post-World War II Baby Boomer generation leave the workplace, employers are having to rapidly adapt to a younger generation of employees entering the workforce. These employees generally are more tech-savvy and place a stronger emphasis on the need for work-life balance than earlier generations of employees, a notion which goes against the more traditional work-ethic of the American workplace. These members of “Generation Y” and “Generation Z” also bring with them new and unique issues to be addressed by employers and Human Resources professionals.
Generation Y (also known as “Gen Y” and “Millennials”) generally refers to employees born between 1981 and 1990, who have been entering the workforce over the last 5-7 years. They are more likely to be college educated than past generations and employers can find them high-performance but also high-maintenance. They tend to be career loyal as opposed to company loyal, and tend to switch jobs frequently, creating retention problems for employers. From a popular culture stand-point, think of Apple’s series of “PC & MAC” television commercials. The “MAC Guy” would seem to be the prototypical member of Generation Y. In the employment context:
Generation Y is much less likely to respond to the traditional command-and-control type of management still popular in much of today's workforce," says Jordan Kaplan, an associate managerial science professor at Long Island University-Brooklyn in New York. "They've grown up questioning their parents, and now they're questioning their employers. They don't know how to shut up, which is great, but that's aggravating to the 50-year-old manager who says, 'Do it and do it now.'”
In contrast, Generation Z (also known as the Net Generation” or “Internet Generation” or the “M Generation” referring to multi-tasking”) refers to those born between 1991 and 2010 and whose oldest members are just now beginning to enter the workforce. Generation Z employees are highly connected with the new technology, utilizing the Internet, text messaging, MP3 players, and social media such as Facebook, and accessing it through portable wireless devices as opposed to desktop computers. This reliance on technology has earned them the nickname of “digital natives.”
A marked difference between Generation Y and Generation Z, is that older members of the former remember life before the explosion of new technology, while members of Generation Z were born into their technological environment. Some can be described as impatient, impulsive and lacking the ambition of previous generations. Some psychologists are claiming this generation has a type of acquired attention deficit disorder. This is because the generation’s dependency on technology is so high and their attention spans much lower, as opposed to previous generations who read books and other printed material, along with watching live television.”
With different attitudes, perspectives and work expectations, these employees present new challenges for employers and new perspectives for employment law.
Traditionally, tattoos once identified their owners as rough characters. This bodily artwork was generally and stereotypically associated with sailors, bikers, members of the military, or the result of an alcohol-assisted impulse purchase. However, in the last decade or so, tattoos have gone mainstream, particularly among members of Generations “Y” and “Z”. The 23 year old receptionist may be as likely to have a tattoo as the U.S. Marine who graduated from Parris Island. Along with tattoos, body piercing also has become increasingly commonplace.
Tattoos among professionals are no longer unusual and it is estimated by tattoo industry trade groups that approximately 60 percent of all tattoos are being done on women. However, when it comes to employment, any social acceptance is apparently tempered by pragmatism. In a recently conducted survey of younger employees, 78 percent said they would cover up or otherwise conceal any tattoos or piercings during a job interview.
So when does an employee’s bodily self-expression cross the line and allow his or her employer to order them to conceal a tattoo in the workplace? In some positions, where the employee has no personal contact with customers, the issue may never arise. In other positions, for example, a bank employee or a waiter in a high end restaurant, the open display of a tattoo or a facial piercing may not be conducive to the message the employer is trying to convey to the public.
While employers retain a great deal of discretion, under certain scenarios, restrictions on tattoos in the workplace could run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) and possibly constitute religious discrimination. While any criteria would seem highly subjective, action by the Equal Employment Opportunity Commission (“EEOC”) has provided at least one set of guidelines for employers to follow.
The issue arose in a federal lawsuit filed by the EEOC against the Red Robin Gourmet Burgers chain of restaurants. The EEOC alleged that the company religiously discriminated when they fired an employee for not covering up his tattoos and refusing to accommodate a religious practice. Red Robin ultimately settled the lawsuit prior to trial for $150,000 and entered into a consent decree with the EEOC.
The case began when Edward Rangel was hired as a server at Red Robin’s Bellevue, Washington restaurant. In the lawsuit, Rangel asserted he was an adherent of the Kemetic religion, an ancient Egyptian faith. As part of his religious practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are liturgical verses from an Egyptian scripture. According to the lawsuit, the inscriptions symbolized Rangel’s religious dedication and his religious practices made it a sin to intentionally conceal the religious inscriptions.
Rangel had the tattoos on his wrists when he was hired. Red Robin has a dress code that prohibits employees from having visible tattoos. The EEOC said that although Rangel worked at Red Robin for approximately six months without a complaint from customers, co-workers or his immediate supervisors, a new manager saw the tattoos and fired Rangel for not concealing them
Rangel claimed he had repeatedly talked with management, giving detailed explanations of his faith and the need for an accommodation. He sought an exemption from the dress code, but Red Robin refused to provide it or any alternatives. Title VII requires employers to make reasonable accommodations to sincerely held religious beliefs unless it would cause undue hardship to the business. Throughout the suit Red Robin maintained that allowing any exceptions to its dress code policy would undermine its “wholesome image.” Before the parties settled, Red Robin’s argument was rejected by the District Court, which held that Red Robin was required to support its undue hardship claim with more than hypothetical hardships based on unproven assumptions.
The lesson to be learned from this case is that Title VII and the EEOC take a very broad view of religion and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice. To that extent, tattoos that are part of a religious practice may need to be accommodated. Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs.
The same legal standards would apply to the related issue of employees with body piercings or other types of body art. However, as illustrated by the following cases, similar facts can yield different rulings by the courts.
In Cloutier v. Costco Wholesale, Kimberly Cloutier was employed as a front end assistant at the membership warehouse retailer. At the time she was hired, Cloutier had eleven ear piercings but did not claim they had any religious significance. She later claimed membership in the Church of Bodily Modification (“CBM”). Among the practices of members of CBM are body modifications through the use of piercing, branding, cutting, scarification and tattooing. Cloutier later had her eyebrow pierced, which was counter to Costco’s dress code policy, which forbade the wearing of facial jewelry. Costco proposed an accommodation of allowing Cloutier to wear clear plastic retainers in her piercings during work hours but she refused the accommodation. When Cloutier refused to comply with the dress code policy on religious grounds, she was ultimately terminated. She filed an EEOC charge and subsequently filed a religious discrimination lawsuit pursuant to Title VII.
In granting summary judgment to Costco, the District Court dodged the question as to whether the CBM was a bona fide religion, but held that Costco’s offer of accommodation was manifestly reasonable. On appeal, the First Circuit affirmed the dismissal of Cloutier’s lawsuit, but on different grounds. In its opinion, it held that Cloutier’s demand for a blanket exemption from Costco’s dress code would impose a undue hardship on Costco. The opinion rejected the argument that such an undue hardship would be hypothetical and affirmed Costco’s right to impose policies to reflect the company’s public image.
However, in E.E.O.C. v. Papin Enterprises, Inc., the EEOC sued on behalf of a Subway restaurant employee wearing a nose ring, who was terminated by the franchisee for refusing to comply with the restaurant’s no facial jewelry policy. In denying summary judgment, the District Court held there were fact questions as to whether a proposed accommodation of allowing the employee to cover the nose ring with a flesh colored Band-Aid was reasonable. The District Court also rejected the employer’s argument under Cloutier that deviating from its policy would constitute an undue hardship. Following protracted litigation, a jury ultimately decided for the employer, finding that the EEOC failed to establish that the employee’s wearing of a nose ring was a sincerely held religious belief, observance or practice.
Employers should generally avoid any overly broad dress code or similar policy that does not acknowledge the potential need to offer accommodation. While religious tattoos or piercings may be subject to accommodation, those worn for secular or purely decorative reasons do not need to be accommodated under Title VII. As such, it is legally within an employer’s right to require that tattoos, piercings or other body art be covered up in the workplace. Likewise, an employer can require workers to cover up any secular tattoos that could be considered offensive or a source of harassment toward other employees or customers, including, but not limited to tattoos of a sexual nature or racist symbols or images. Interestingly enough, as tattoos have become more mainstream, new businesses have sprung up, providing specialized clothing and make-up designed to conceal tattoos in the workplace.
When the Internet initially became a tool in the workplace, the primary concern among employers was the impact on worker productivity, with employees surfing the Net instead of doing their job. While more recent studies have shown that such “workplace Internet leisure browsing”, or “WILB” can have a positive impact on worker productivity, most employers have since adopted written Internet policies, setting forth acceptable and unacceptable Internet use in the workplace. With an eye toward avoiding claims of sexual harassment or hostile workplace, such policies typically forbid employees from using workplace Internet to access pornography or sites that could be construed to be offensive to others based on their sex, race, sexual orientation, age, disability, national origin, or religious beliefs.
As social media has become more ubiquitous, employers have modified their Internet policies to address Facebook, Twitter and other social networking sites or services. While these policies typically address posting during work hours or concerns over disclosure of trade secrets and proprietary company information, they also frequently contain prohibitions against libelous or defamatory postings, including disparagement of the company or members of management. This has triggered a recent wave of federal action against employers under a novel legal theory.
Facebook first launched in 2004, and as of 2011, the social media phenomena has 750 million active users worldwide, with fifty percent of that number logging on to Facebook on any given day. Approximately 95 million Facebook users are in the United States and a significant majority are members of Generation Y and Z. More than 50 million of them are in the 18-25 age group, followed by more than 29 million in the 26-34 age group.
The National Labor Relations Act (“NLRA”) is a federal law enacted in 1935, which guarantees the right of employeesto organize, form unions, and bargain collectively with their employers. The Act also created the National Labor Relations Board (“NLRB”) to arbitrate deadlocked labor-management disputes, guarantee democratic union elections, and penalize unfair labor practices by employers.
So what does a nearly eighty year old labor law have to do with Facebook or other social media, and more importantly, why should employers care? In a new spin on labor law, the NLRB has been filing unfair labor practice complaints against employers who discipline or terminate employees for disparaging comments made about their employers or supervisors on their personal Facebook pages, or in some cases, in “tweets” on their private Twitter accounts.
The basis for the NLRB’s actions can be found in Section 7 of the NLRA, which provides that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under the NLRA, the definition of “concerted activity” is activity undertaken on behalf of two or more individuals, or ratified, underwritten or subscribed to by two or more individuals. In the context of Facebook, or Twitter, the NLRB is taking the position that concerted activity occurs when an employee posts a complaint or remark about working conditions and elicits responses from co-workers. Whether this actually legally constitutes concerted activity under the NLRA remains a gray area that has yet to be addressed by the courts.
The case that sparked this new enforcement trend began in Hartford, Connecticut, when Dawnmarie Souza, a paramedic employed by American Medical Response (“AMR”) was asked by her supervisor to write up a report regarding a customer complaint against Souza. Later that day, from her home computer, she posted negative remarks about the supervisor on her personal Facebook site. In her postings, she described her supervisor as a “dick” and a “scumbag” and noted “looks like I’m getting some time off. [L]ove how the company allows a 17 to become a supervisor”, using the company’s terminology for a psychiatric patient. Souza’s remarks drew supportive postings from co-workers, and additional complaints against the supervisor.
Souza’s postings clearly violated AMR’s social media policy, which prohibited employees “from making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” The policy also prohibited employees from offering any on-line commentary about the company without prior permission from the company. Souza was suspended and subsequently terminated.
AMR denied that the Facebook posts were the actual reason for Souza’s termination, citing multiple customer complaints against Souza in the months prior to her discharge. In October 2010, the NLRB filed a complaint against AMR, on the basis that it maintained and enforced an overly broad Internet posting policy that violated the NLRA. The complaint was set for a hearing, but AMR subsequently settled with the NLRB and entered into a private financial settlement with Souza. Under the settlement, the company agreed to revise its rules to ensure that employees were not improperly restricted from discussing their wages, hours and working conditions with co-workers and others while not at work, and that AMR would not discipline or discharge employees for engaging in such discussions.
The NLRB has since filed similar complaints against employers across the country, including at least one non-profit organization. Some of these complaints were brought by the NLRB purely on the basis of a company’s written policy, even when no employee had been disciplined or discharged.
In an attempt to clarify the issue, the NLRB’s Acting General Counsel released an August 18, 2011 report, setting forth the criteria the NLRB applied in fourteen of the complaints brought against employers. The examples given were all highly fact intensive. While stating that individualized employee gripes on social media are not concerted activity, the report did not appear to offer any bright line rules for employers to follow.
Does the NLRB’s latest actions mean employees have free rein to bad-mouth their employers and co-workers on-line with no fear of negative employment consequences? The answer is no. Social media policies that prohibit offensive, unprofessional, inappropriate and defamatory comments are still enforceable. The NLRB recently dismissed a complaint filed by a crime reporter for a Tucson, Arizona newspaper, who was fired for comments made on his Twitter account, including joking about Tucson’s murder rate and posting insults directed at his co-workers and employees of the local television station. The NLRB upheld the reporter’s termination because his comments did not concern working conditions or employment terms, and were not protected under the NLRA.
However, while such on-line employee griping may not sit well with many employers, they should proceed cautiously before taking disciplinary action and make sure their Internet/social media policies do not run afoul of the NLRB’s new theory of labor liability. Some points to consider:
Because of the enormous footprint that members of Generation “Y” and “Z” leave on the Internet through social media, it would seem to be an employer’s dream come true for screening job candidates. A review of a potential employee’s Facebook postings and pictures, YouTube videos and blogs could reveal illegal drug use, falsified qualifications and other red flags that might disqualify a job applicant.
The use of social media as an HR tool is already well entrenched. A 2010 survey commissioned by Microsoft found that 79 percent of hiring managers and recruiters in the U.S. had reviewed online information about job applicants as part of the hiring process. Of those who did, 70 percent acknowledged rejecting candidates based on what they discovered.
However useful such on-line screening may be, it carries the risk of potential liability. What might be intended as an innocent and well-intentioned Internet search could uncover information about a candidate’s race, religion, veteran status or medical history. Under federal law and the law of some states, employers are prohibited from using such information in making employment decisions. The EEOC, which administers Title VII and other federal anti-discrimination laws, has recently started addressing the issue.
In November 2010, the EEOC issued its final regulations for the Genetic Information Non-Discrimination Act of 2008 (“GINA”), which bars employers from discriminating against employees based on genetic information or medical history, and expressly stated that the law encompasses iinformation obtained on the Internet. Other EEOC guidelines also can be interpreted to require employers to keep records of Internet searches used during the job selection process.
How do employers utilize a legitimately useful job screening tool without exposing themselves to liability? While there are no universally accepted guidelines, a good practice is to have a designated non-decision-maker conduct the Internet search of any applicant and filter out any information relating to protected characteristics before turning over any other results to the person who will make the hiring decisions. It is also important to remember that information gleaned from the Internet should not be the sole basis for rejecting an applicant for employment because it often can be inaccurate or outdated.
Another option was recently given an implicit green light by the United States Federal Trade Commission (“FTC”). In May 2010, the FTC announced it had concluded an investigation and had decided to take no action against the company Social Intelligence, Inc. For a fee, the recently formed company will conduct on-line background checks of job applicants. The purpose of this outsourcing service is to insulate employers from exposure to information that might open them up to claims of discrimination in hiring.
The company generates reports based on the employer’s pre-defined criteria, both positive and negative. Negative examples include racist remarks or activities, sexually explicit photos or videos, and illegal activity such as drug use. Positive examples include charitable or volunteer efforts, participation in industry blogs, and external recognition.
Protected class information is redacted from the reports before they are disclosed to the employer. The objective of the service is to ensure employers only have exposure to information that is job relevant and may legally be considered in the hiring process. Other traditional record checking companies are also getting into the business of tracking the Internet footprints of job candidates
In the United States, more than 2.5 billion text messages are sent each day by cell phones or other mobile devices and Generation Y and Z make up a significant part of that traffic. Among Americans ages 18-29, 95 percent of them use text messaging. A recent survey reports that among drivers ages 18 to 24, 24 percent reported texting while driving in the last 30 days, while 13 percent of drivers in the same group reported texting while driving every day. According to the Governors Highway Safety Association, distractions while driving, including texting and cell phone use, are estimated to be associated with 15 to 25 percent of crashes at all levels from minor property damage to fatal injury.
To the extent employees are required to drive as any part of their job duties, employers should adopt and strictly enforce a policy of no texting while driving, to prevent accidents and protect themselves from liability based on the actions of their employees.
Generation Y and Z are the workforce of the future and offer unique talents but also unique challenges to employers and human resources professionals. However, a careful mix of good HR management, well thought out policies and training, tempered with a degree of flexibility, can result in highly performing and highly motivated employees.
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MarkFijman is an attorney in the Labor and Employment Section of Phelps Dunbar’s Jackson, Mississippi Office. He represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels human resource professionals on issues ranging from overtime questions to discipline and termination decisions. He also specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.
This article contains general information and provides an overview of the topic. It is not intended nor should it be construed as legal advice or as a substitute for consultation with an attorney as to a specific legal question or problem. If you have a specific legal question or need legal advice, you should contact an attorney familiar with the law as to your particular legal issue.
Stephanie Armour, Generation Y: They’ve Arrived at Work With a New Attitude, USA Today, Nov. 6, 2005.
Lucinda Schmidt; Peter Hawkins, Children of the Tech Revolution, Sydney Morning Herald (July 15, 2008)
Brinda Barcelon, The Life of Generation Z, Press Democrat (March 5, 2010)
EEOC v. Red Robin Gourmet Burgers, Inc., No. 2:04cv1291, Docket Entry No. 1 (W.D. WA May 26, 2004)
EEOC v. Red Robin Gourmet Burgers, Inc., No. 2:04cv1291, Docket Entry No. 114 (W.D. WA Aug. 29, 2005)
(Order Denying Defendant’s Motion for Summary Judgment).
Cloutier v. Costco Wholesale, 311 F. Supp.2d 190 (D. Mass 2004), aff’d 390 F.3d 126 (1st Cir. 2004).
Cloutier v. Costco Wholesal Corp., 390 F.3d 126 (1st Cir. 2004).
E.E.O.C. v. Papin Enterprises, Inc., 2009 WL 961108 (M.D.Fla. April 7, 2009).
In a study by Dr. Brent Coker of the University of Melbourne’s Department of Management and Marketing, “[p]eople who do surf the Internet for fun at work - within a reasonable limit of less than 20% of their total time in the office - are more productive by about 9% than those who don’t.” The attraction of WILB, according to Dr Coker,is that short and unobtrusive breaks, such as a quick surf of the Internet, enables the mind to rest itself, leading to a higher total net concentration for a days work, and as a result, increased productivity. The study states that any increase in productivity is lost for those employees who spend more time engaging in WILB or exhibit tendencies toward Internet addiction. Freedom to Surf:Workers More Productive if Allowed to Use the Internet for Leisure,University of Melbourne, April 2, 2009 (http://uninews.unimelb.edu.au/news/5750/).
Facebook Demographics Revisited, Web Business (March 7, 2011) (http://www.kenburbary.com/2011/03/facebook-demographics-revisited-2011-statistics-2/).
National Labor Relations Act, 45 U.S.C. § 151 et seq.
News Release: Complaint Alleges Connecticut Company Illegally Fired Employee over Facebook Comments, National Labor Relations Board (November 2, 2010) (http://www.nlrb.gov/news-media/news- releases/archive-news).
News Release: Settlement Reached in Case Involving Discharge for Facebook Comments, National Labor Relations Board (February . 8, 2011)(http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-
News Release: Acting General Counsel Releases Report on Social Media Cases, National Labor Relations Board (August .18, 2011)( https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases).
Matt Dunning; Firing of Tweeting Newspaper Reporter Upheld by NLRB, Business Insurance.Com (May 24,2011) (http://www.businessinsurance.com/article/20110524/NEWS/110529966).
Minda Zetlin; Is Your Social Networking Policy Illegal? Technology.Inc.Com (December 13, 2010)(http://technology.inc.com/2010/12/13/is-your-social-networking-policy-illegal/).
29 C.F.R § 1635 (2010).(Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule).
Thereare two EEOC rules that involve recordkeeping: the Title VII and ADA recordkeeping rule (29 C.F.R. Part 1602); and the Uniform Guidelines on Employee Selection Procedures (“UGESP”) (29 C.F.R. Part 1607). Under the Title VII and ADA recordkeeping rule, covered entities must keep for one year, "application forms submitted by applicants and other records having to do with hiring. . . ," among many other personnel or employment records. 29 C.F.R. §1602.14. More importantly in this instance, the UGESP directs covered entities to maintain "records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group..." 29 C.F.R. § 1607.4(A). The purpose is to analyze whether employment tests or other employment "selection procedures" have a "disparate impact" on - or disproportionately exclude - applicants of a particular race, ethnicity, or gender. If so, the "selection procedures" are lawful only if they are validated, i.e., are shown to be job-related and consistent with business necessity. 29 C.F.R. § 1607.3(A). (UGESP describes in detail different ways to validate tests.)
StaffClosingLetter Re: Social Intelligence, Inc.-File No. 112 3014, Federal Trade Commission (May 9, 2011) (http://www.ftc.gov/os/closings/staffclosing.shtm).
Social Intelligence, Inc. (http://www.socialintelligencehr.com/home).
Text Message Statistics in 2010, Runtext (September 30, 2010) (http://runtext.com/text-message-statistics-in-2010/).
Melanie Pinola, It’s Still True: Texting and Driving Don’t Mix, PCWorld (July 10, 2011)(http://www.pcworld.com/article/235363/its_still_true_texting_and_driving_dont_mix.html).
Distracted Driving: What Research Shows and What States Can Do, Governors Highway Safety Association (July 7, 2011) (http://ghsa.org/html/media/pressreleases/2011/20110707_sfdist.html).