With the global spotlight on reducing greenhouse gases and carbon footprints, including the Obama Administration’s unprecedented attention on encouraging environmental conservation and development of renewable energy sources, it’s clear that we’re in a “go green” era.

To cut to the question posed in this blogposts’s title, the answer is “no”.  There is no legal duty, at the moment, for a private employer to “go green”.  Perhaps at some point in the future, statutory authority such as the federal Occupational Safety & Health Act and state and local counterparts will include “green workplace standards”.  For example, with respect to the investment in “green jobs” the Department of Labor and National Institute for Occupational Safety and Health are already focusing on ensuring that OSHA standards are appropriately designed and enforced to protect workers performing that type of work.  At present, however, there are no mandates and instead only various governmental and non-governmental incentives for a workplace to go green. 

The U.S. Environmental Protection Agency (EPA) and Pew Center on Global Climate Change estimate that commercial buildings account for nearly half of all energy consumption in the U.S., and contribute to nearly half of U.S. greenhouse gas emissions.  The Energy Star Program, administered by the EPA and U.S. Department of Energy, attempts to encourage energy efficiency in buildings to meet strict energy performance standards set by EPA and reduce greenhouse gas emissions.  Federal buildings are eligible to receive a High Performance Building designation. 

In addition, commercial real estate and private companies are leading the green charge through voluntary compliance with standards set by a private, nonprofit membership organization, the U.S. Green Building Council (USGBC). The USGBC’s LEED® (Leadership in Energy and Environmental Design) Green Building Rating System™ awards points for satisfying specified green building criteria. The six major environmental categories of review include: 

• Sustainable Sites
• Water Efficiency
• Energy and Atmosphere
•  Materials and Resources
• Indoor Environmental Quality and
• Innovation and Design

A building, or unit therein, can be certified as LEED Silver, Gold, or Platinum based on the total number of points earned within each LEED category.  For example, our firm’s Miami and Los Angeles offices are in buildings with LEED Gold certification.  It was reported two days ago that a high profile commercial property investment company will spend up to $10 million retrofitting its properties for environmental sustainability.  LEED can be applied to all building types including new construction, individual unit commercial interiors, core & shell developments, existing buildings, homes, neighborhood developments, schools and retail facilities.  In addition, LEED for Healthcare was released in early 2008.

In sum, the green movement has not yet resulted in mandated private employer obligations.  Notwithstanding the lack of affirmative duty to do so, however, based on information provided by the USGBC and EPA there are many pragmatic benefits that employers should consider for greening their workplaces:

• Monetary:  Funding and tax incentives 
• Energy Efficiency:   Using energy more efficiently may save operating costs on utility bills over the life of the building; reduce the cost per unit on manufactured goods and services; and enhance resale and lease value of real estate
• Environmental Efficiency:   Reducing environmental impact may reduce waste materials and disposal costs, water usage, chemical use and disposal costs; encourage recycling and reuse of materials; develops local markets for locally produced materials, saving on transportation costs and develops economy-of-scale price reductions
• Human Efficiency:   Improving indoor environment, producing healthier places to work leading to increases productivity; reduction in absenteeism; boosting morale and corporate loyalty (also through creation of corporate “green teams”), and reduction in employee turnover
• Goodwill:  Green Buildings often receive high profile notoriety and increased public perception of goodwill toward employees and the community.  

 

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We live in a time of change. Last summer fifteen United States senators wrote an open letter to Secretary of Labor Hilda Solis to urge the U.S. Department of Labor ("DOL") to repeal the Domestic Service exemption from the minimum wage and overtime requirements of the ("FLSA") for home health care workers. Secretary Solis has expressed support for the effort to review this exemption, with a view toward closing this "loophole." Citing a $9 an hour industry-wide average wage, the senators argued in favor of extending federal overtime requirements to "thousands of low-wage workers, primarily women, who are doing difficult, dangerous, yet extremely important work." Furthering public debate on the subject, the New York Times on January 28 ran an editorial in support of eliminating the Domestic Service exemption for home care aides.

The Domestic Service Exemption

Under current federal regulations, home health care aides who assist the elderly and infirm are exempt from the minimum wage and overtime requirements of the FLSA pursuant to 29 U.S.C. Section 213(a)(15) (exempting "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary)"). In 2007 the United States Supreme Court upheld the current Department of Labor regulation allowing this exemption against a strong legal challenge from organized labor. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007).

The exemption applies to all workers in domestic service who provide companionship services for individuals unable to care for themselves due to either physical or mental infirmity. Domestic service is work performed within the residence of the family using the services. Companionship services are those that provide fellowship, care and protection to the elderly and infirm. 29 C.F.R. § 552.109(a). Home health care workers, whether employed directly by the family or by an employer or agency other than the household using their services, are currently exempt from the FLSA

Some state laws have already narrowed the federal exemption. Pennsylvania, for example, exempts only home health care aides employed directly by a family for work performed within their home, excluding from the exemption workers employed by a placement agency. New York requires the payment of time-and-one-half the minimum wage for overtime hours worked. Wherever a state law provides greater protection to employees than the FLSA, the state law prevails over federal law.

Potential Effects

Eliminating or modifying this federal exemption may increase the burden to working families who want to care for their loved ones at home. A change in the Domestic Service exemption may also have significant consequences for employers who provide home health care workers to families. Employers of home health aids often conduct background checks and provide training to workers before they arrive in the home to offer care for a family’s loved ones. There is an ever present danger that if costs of home care become prohibitive, economics will operate to push the elderly and infirm out of the home into nursing homes, or other institutionalized setting.

We will continue to monitor and post developments on this significant issue.

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Hazardous occupations are no place for employees under the age of 18. Employers must be certain to prohibit minors from operating power driven wood working machines, metal working machines, bakery machines, fork lifts, balers and compactors, meat slicers, and nail guns. The full list of hazardous occupations are set forth in the Code of Federal Regulations, 29 C.F.R. 570, et. seq.  Protecting America’s children in the workplace has long been a stated objective of the U.S. Department of Labor, and the civil money penalties for serious violations have recently been strengthened.

On January 20 the Labor Department’s Wage and Hour Division issued guidelines to enforcement personnel for determining appropriate civil money penalties against employers who violate the child labor provisions of the Fair Labor Standards Act. As stated in Field Assistance Bulletin 2010-1, the guidelines “draw heavily on the child labor civil money penalty process the WHD [Wage Hour Division] has developed over the past 25 years.” In addition, there is new advice resulting from the FLSA amendments that became effective May 21, 2008 with the enactment of the Genetic Information Nondiscrimination Act (GINA).

The DOL has created a Child Labor Enhanced Penalty Program (CLEEP) to incorporate GINA’s stiffer penalties. A “CLEEP serious injury” is defined as one caused by a child labor violation resulting in a permanent loss or substantial impairment of one of the senses, or of the function or movement of specified body parts. The bulletin identifies categories of injuries, and provides higher penalties for more serious injuries.

GINA included an amendment to the FLSA, 29 U.S.C. 216(e), providing a penalty of $50,000 for a violation causing death or serious injury to an employee under the age of 18. The penalty may be doubled to $100,000 if the violation is willful or repeated. Prior to GINA’s amendment, the maximum child labor civil money penalty was $11,000.

For GINA’s enhanced penalties to be applicable there must be evidence to prove the violation of a specific Child Labor Hazardous Order directly caused the death or serious injury of an employee under 18. The January 20 Field Assistance Bulletin sets forth detailed examples of violations that cause injuries as opposed to injuries that occur while employed in violation of a child labor hazardous order.

Of course no one wants an accident to occur to anyone at any time. However, in light of the DOL’s increased enforcement authority in the area of child labor, employers are well advised to verify the ages of their employees. If an employee is under the age 18, it is mandatory to ensure they are not permitted to engage in any prohibited activities.
 

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With recent articles such as New York Magazine's “The Rise of Dog Identity Politics” and the New York Times' "Dogs' Life (and Death) Is a Poignant Tale" describing the myriad ways that our pets (particularly dogs) have evolved to become integral members not just of one’s family household, but indeed society at large, the human resource professional may eventually be asked:  “Can I take FMLA leave to care for my dog?”  For example, an employee whose dog is undergoing major surgery or an intensive treatment regimen such as chemotherapy may try asking for leave to remain home while his or her dog recuperates.

Fortunately for the human resources folks, but perhaps unfortunately for Fido, there is a really easy answer to this question.  “No.”  The Family and Medical Leave Act applies exclusively to humans.  Dogs and other pets are not covered.

If eligible for leave, an employee is entitled up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of a newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for a spouse, son, daughter, or parent with a serious health condition;
• to take medical leave when the employee is unable to work because of a serious health condition; or
• for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

In addition, the National Defense Authorization Act for FY 2008, which amended the FMLA, provides that an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness, is entitled up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for the service member.

In sum, while employees should explore alternative leave options such as use of personal or vacation time, the FMLA (or any state version of the FMLA that we are aware of) will not apply.

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In a decision dated January 5, 2010 the D.C. Circuit raised that question in a case involving the administrative exemption in a Fair Labor Standards Act class action.  Jerome Robinson-Smith v. Geico, case number 08-7146, and Christine Lindsay et. al. v. Geico, case number 08-7147, in the U.S. Court of Appeals for the District of Columbia Circuit.

Stating the District Court had no occasion to decide whether the job of a GEICO auto damage adjuster is so easy a caveman could do it, (referring to GEICO’s well known ad campaign in a light hearted footnote) the appellate court held that GEICO satisfied its burden of proof that its employees performed exempt administrative duties. The appellate court reversed the district court’s summary judgment for plaintiffs, and in a lengthy and well reasoned decision, upheld the exempt classification. Reversing the lower court, the appellate court directed judgment be entered for the employer.

Exemptions to the FLSA are generally narrowly construed. The administrative exemption applies only to employees paid on a salary basis of at least $455 a week whose “primary duty consists of …the performance of office or non-manual work directly related to management policies or general business operations of his employer…which includes work requiring the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. 541.200 et. seq. The court noted the question of whether an employee comes within an FLSA exemption is a question of law, and the appellate court reviewed de novo the district court’s grant of summary judgment to the plaintiffs.

Plaintiffs did not dispute that they were paid the requisite salary and performed non-manual work directly related to GEICO’s business operation. However the plaintiffs argued, and the district court found, that the amount of discretion they exercised was “insufficient” for exemption because the vast majority of their work consisted of using their training and skills to assess the value of the damage to customers’ vehicles in accordance with the employer’s directions, “limited in scope by both the information and standards contained in the computer software and the guidelines and limits on negotiating authority laid out by GEICO”.

The appellate court found that although the parties disputed how much discretion the plaintiffs exercised, there was no dispute that plaintiffs work “includes some discretion” to perform their duties. The court then held that because it was undisputed that the plaintiffs’ job “includes” work requiring the exercise of discretion and independent judgment, the employer had met its burden of proof, and directed the district court to enter judgment for the employer.

The court, citing decisions from “sister” circuits finding auto damage adjusters exempt from overtime requirements by virtue of the administrative exemption, held that the defining regulation merely required the employees’ primary duty to “include” discretion and independent judgment, but does not specify how frequently the discretion must be exercised. The court held that because it was undisputed that the plaintiff exercised “some discretion and independent judgment during the course of his job” the employer had satisfied the final test to support the exempt classification.

What Does This Mean?  

How broadly will the D. C. Circuit’s analysis of the auto damage adjusters’ duties be applied to other employment circumstances?  Because each worker’s classification of exemption depends upon a detailed factual analysis, and employers are required to bear the burden to prove an exemption is applicable, employers should proceed cautiously before reaching a determination that their employees satisfy all the criteria necessary for exemption. The court noted that in this case GEICO had re-classified their auto damage adjusters as non-exempt during the course of the litigation to limit further exposure in the event the exempt classification was not upheld.

As many employers have learned to their sorrow, the question of properly applying FLSA exemptions is not so easy even a cave man could do it.

Douglas Weiner served for many years as Senior Trial Attorney, United States Department of Labor, New York Regional Solicitor’s Office, before joining EpsteinBeckerGreen. He now counsels and defends employers in wage hour matters. 

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A bonus is “something given or paid in addition to what is usual or expected” according to The American Heritage® Dictionary of the English Language. The Columbia Encyclopedia informs us that the “wage incentive was designed during the late 19th century not only to increase production but to reward the more skillful and more energetic workers.” In other words, a bonus is a premium paid above and beyond standard compensation to reward high-achieving employees and to encourage them to continue such achievement with the company in the future.

All too often, however, despite employment policies explicitly stating otherwise, many employees have come to view year-end bonuses as a usual and expected part of their compensation, viz., an entitlement rather than, well, a bonus. The issue of determining year-end bonuses carries important employment law implications under the Fair Labor Standards Act (“FLSA”), state wage laws, as well as the laws against discrimination and the common law. This may be particularly true for employers whose employees, rightly or wrongly, have come to look at “bonuses” as part of their standard compensation.

The FLSA

The FLSA requires an employer to take certain types of bonuses into account when determining a non-exempt employee’s “regular rate of pay” which, in turn, is used to calculate an employee’s overtime pay. For overtime purposes, the FLSA distinguishes between discretionary and non-discretionary bonuses. Truly discretionary bonuses are not part of a non-exempt employee's “regular rate of pay”, and therefore do not impact the overtime compensation due them. On the other hand, non-discretionary bonus payments must be included in the overtime calculation for all non-exempt employees working more than 40 hours in any workweek covered by the bonus.

In general, application of the following factors will determine whether or not a bonus is part of a non-exempt employee's “regular rate of pay” for purposes of the FLSA:

•   Is the payment a productivity bonus? Productivity bonuses based on performance or used to encourage productivity are counted as earnings, and must be included in the employee’s regular rate of pay.

•   Is the payment discretionary? Discretionary bonuses are usually not considered part of an employee’s regular rate of pay.

•   Is the payment contractually required? Bonuses paid pursuant to contract are included in the regular rate of pay because such bonuses are not “discretionary.”

•   Is it a special occasion bonus such that it is in the nature of a gift made at Christmas time or other special occasion?  Such a bonus would be excluded from the regular rate calculation so long as it is actually a gift or nature of a gift. Caveat: If the payment is so substantial that it can be assumed that employees consider it a part of the wages for which they work, the bonus cannot be considered to be in the nature of a gift.

•   Was the bonus announced in advance? If a bonus is announced in advance, the announcement could be considered a promise to pay, which might increase the likelihood of the bonus being included in the regular rate of pay for FLSA overtime calculations.

New York State Labor Law

Regardless of FLSA issues, employers are obligated under various state labor laws to pay the earned wages for all employees (and in New York "executives" are deemed to be employees covered under the statute). In New York, it is often litigated whether a bonus is considered a wage under New York’s Labor Law (defining wages as “earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis”) and thus must be paid unconditionally as remuneration for the employee’s labor.  

New York courts hold that a bonus plan is excluded from the Labor Law’s definition of wages if: (1) payment of the bonus was “entirely discretionary”, and (2) payment was not predicated on the employee’s “own personal productivity” but “solely upon his employer’s financial success.” Where a bonus fails to constitute a wage under the statute, any forfeiture of bonus as a result of the employee’s termination of employment, will not be deemed a violation of New York Labor Law. The same has been applied to equity-based bonus compensation plans, which were unvested, deferred, and dependent on the firm’s “overall success” and not simply on the employee’s “personal productivity”, and held to be outside the scope of statutory wages.

Common Law and Statutory Claims

Outside of unique instances where the terms of a bonus plan are expressed as “contractual” or based on a specific formula (e.g., linked to individual targets achieved), bonus plans are otherwise likely to be “discretionary”. As a general rule, an employee has no legally enforceable right to receive bonus compensation, or a specific sum as a bonus, if the incentive plan is discretionary. However, employers still need to be aware of potential claims under contract and discrimination laws arising from the payment or non-payment of bonuses.

Being cognizant of whether a bonus determination implicates discriminatory treatment proscribed by such statutes as Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and their state and local counterparts, therefore, should be an important component of the process.  Although typically a claim may involve female employees performing substantially equal work as male employees but purportedly receiving lower bonus awards, claims may also arise where the employer prorates a bonus because of absences or decreased productivity due to protected leave of absence. In order to avoid any discrimination claims with respect to bonuses, employers should:

•   Base employee bonuses on objective business criteria such as productivity or pre-set performance standards. Employers who wish to prorate an employee’s bonus due to his or her absences or decreased productivity would be prudent to clearly describe the specific productivity standards upon which the bonus is based.

•   Document the reasons supporting a person’s discretionary bonus and ensure that it is consistent with that employee’s performance evaluations.

•   Provide discrimination avoidance training for those supervisors and managers who are involved in the bonus-determination process.

•  The employer should review any bonus award plan to see if there were any unintended discriminatory effects (such as African American employees receiving less than Caucasian employees or female employees receiving less than male employees) and take the necessary steps to review the process and either rectify any disparities or revise the system to avoid these effects the following year.

You've probably observed somewhat of a tension after reading the above: For FLSA purposes, the greater the unfettered discretion, the greater likelihood the bonus will be excludable from the regular rate of pay. However, for Title VII purposes, the greater the unfettered discretion, the greater the potential for being accused of discriminatory intent (e.g., because of less reliance on objective benchmarks). Employers should weigh the costs/benefits and determine how important it is for the company to exclude bonus payments from the regular rate of pay for non-exempt employees.

Various decisions by the courts and arbitrators have also determined that an employer must exercise its discretion in good faith and on reasonable grounds. If an employee meets his bonus criteria an employer should be prepared to establish reasonable grounds for not paying the bonus if it is to show that it has exercised its discretion in good faith. An employee may also try to assert a claim under an “implied” contract theory if the employer has by custom and practice paid bonuses to other employees who have similarly performed over the year. Although past practices alone do not imply an agreement to continue such practices indefinitely into the future, this type of claim is common in the financial services industry where some employees attempt to argue that their year-end bonuses comprise an integral component of their annual compensation.

Even where the employer retains absolute discretion, it is always good practice to be able to support a decision to withhold a bonus based on rational and legitimate business reasons. As with the potential for discrimination claims, such claims can be avoided by reinforcing the discretionary nature of the bonus (making it clear in all written bonus documents), attaching certain criteria to receipt of a bonus (such as continued employment) and basing these decisions on objective business standards such as employee and employer performance.

Considerations for Employers

During this recession involving personnel and labor expense reduction, employers should be aware of the ways in which current and former employees may seek to recover bonus compensation even where the employer had expressly retained a discretionary policy. At the outset, the company should review what, if any, contractual obligations it has under employment agreements and workplace policies, if applicable. If the company has retained and exercised a discretionary policy, employers should nevertheless be able to articulate an objective and reasonable decision, while also being cognizant of employment laws concerning wage, hour, discrimination, and potential common law claims. 

* I would like to thank my EBG colleague, Doug Weiner, Esq., who formerly served as Senior Trial Attorney for the New York Regional Solicitor's Office of the U.S. Department of Labor, for his keen insight and invaluable contributions to this blogpost. 

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The H1N1 swine flu pandemic, which has infected as many as 22 million Americans, hospitalizing 98,000 and killing roughly 3,900 since it first broke out in April, has prompted legislative discussion about mandating paid sick leave at the federal and state level and in some cities such as New York City.   In spite of admonitions from the Centers for Disease Control and Prevention (CDC) to workers to stay at home if they are sick, some say that the lack of paid sick leave has created an obstacle. CDC statistics show that a sick employee in the workplace risks infecting 10 percent of their colleagues – the so-called “presenteeism” paradox of causing more economic loss than absenteeism. However, approximately 39 percent of all workers in private industry do not get paid sick leave, according to the Bureau of Labor Statistics.  Of course, the statistics differ as to full-time versus part-time workers: 73 percent of full-time workers receive paid sick leave benefits compared to only 26 percent of part-time workers in private industry.

Currently, there are no federal legal requirements for paid sick leave. For companies subject to the Family and Medical Leave Act (FMLA), the Act does require unpaid sick leave. The FMLA provides for up to 12 weeks of unpaid leave for a “serious health condition” of either the employee or the employee’s spouse, son, daughter, or parent. In many instances, paid leave may be substituted for unpaid FMLA leave. Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a worksite where at least 50 employees are employed by the employer within 75 miles of that worksite.

Federal Legislative Proposals

Several bills have been proposed at the federal level to mandate paid sick leave, and warrant your close attention during this pandemic.  The Emergency Influenza Containment Act (H.R. 3991) proposed by Reps. George Miller and Lynn Woolsey of California on November 3, would require employers to provide at least five paid sick days to workers who are sent home from work ill or told to stay home because of symptoms related to contagious illnesses such as the H1N1 flu virus. Under this bill, employees could only take time off for their own illness.

The Pandemic Protection for Workers, Families and Businesses Act (S. 2790/H.R. 4092), proposed by Sen. Christopher Dodd and Rep. Rosa DeLauro of Connecticut on November 17, would require seven days paid sick leave they fall ill with swine flu or seasonal flu and would include parents who stay home with sick children. (The Dodd-DeLauro bill is packaged as an emergency measure but is largely based on The Healthy Families Act, which was introduced last May in the House (H.R. 2460) by Rep. DeLauro and in the Senate (S. 1152) by the late Sen. Ted Kennedy.)

Another key difference between the two is that under the Miller-Woolsey bill, the sick days would go into effect if an employer tells a worker to go home or stay home.  Under the Dodd-DeLauro bill, an employee would decide when to use the days. Under both bills, businesses with fewer than 15 employees would be exempt, and both bills would sunset after two years. 

Some senators have announced opposition to such legislation, arguing it would hurt the already aching economy by imposing inflexible policies and new financial burdens on small businesses.  In addition, many employers already offer paid sick leave, or make other arrangements, such as telework, to mitigate outbreaks of contagious illnesses. Counter-arguments in favor of the legislation are that workers should not have to choose between getting paid or staying home ill, and employers might end up with dozens of unproductive, sick workers making their co-workers unproductive.

State Laws

At least a dozen states reportedly have considered or are considering whether to mandate a certain amount of paid sick leave per year. New York is not one of them. For an update on those campaigns, see the National Partnership for Women & Families and the Healthy Families Act Coalition website. 

New York City

In New York City, the Paid Sick Time Act (Int. No. 1059) was introduced in August and is currently pending in hearings before the Committee on Civil Service and Labor. That bill would require employers in New York City with 10 or more employees to give employees one hour of sick leave for every thirty hours worked -- up to 9 paid sick days per year. Small businesses (fewer than 10 employees) would be required to give up to 5 paid sick days per year. Under the bill, sick days could be used when the employee is sick or to allow the employee to care for sick children or other sick relatives. The bill also has a provision allowing sick days to be used to care for children whose schools have been closed by city officials for public health reasons, even if the children are not themselves sick.

Considerations For Employers

The passage of such legislation will require those employers subject to the laws to revisit their existing paid time off (PTO) policies to ensure compliance. And for those employers without PTO policies, such legislation will require immediate implementation of policies compliant with the mandated minimum amount of sick leave. In the meantime, employers should continue to monitor guidance provided by the CDC and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). These agencies have issued fact sheets designed to help employers and workers promote safety during the H1N1 pandemic, and minimize proliferation of H1N1 in the workplace.  According to OSHA, all employers should be implementing a combination of control methods to protect workers and reduce the transmission of the H1N1 virus in the workplace, including:

• encouraging sick workers to stay home
• promoting hand hygiene and cough etiquette
• keeping the workplace clean
• promoting vaccination and addressing travel and
• planning for additional actions if the severity of the pandemic increases.

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Web-based social networking sites have become part of the mainstream, and companies should consider enhancing their existing electronic communications policies to account for sites like Facebook and Twitter. Undoubtedly, one important part of such a policy should address the issue of coworker harassment in the online or "virtual" world.

For example, what happens when one of your employees complains that a comment, picture, or video posted online by a colleague is offensive or disparaging? Or that she is being subjected to unwelcome flirtatious comments and messages through a website? Although Internet networking for business or social purposes has many upsides and benefits, it's important that your antiharassment policy proactively address the spectrum of possibilities that can play out in the virtual world and make it clear that employees will be protected in the real world.

Friends Online 

Quite often, coworkers and colleagues become "connected" on social networking websites and therefore have access to each other's personal profile pages. By connecting through a website, people are essentially "consenting" to not only sharing their own postings but also being subjected to the musings of their "friends." While this networking platform serves many positive and productive uses, you need to be cognizant that it can be a fertile ground for harassment issues.

Basic social networking platform

The common thread of most social networking sites is users' ability to post real-time comments describing what they are doing or thinking at a particular moment. For example, Facebook asks its users, "What's on your mind?" and Twitter asks, "What are you doing?" In the case of Twitter, a user may "tweet" what he's doing using 140 characters or less, and his "followers" will receive his message instantaneously via e-mail, online through their Twitter page, or in a text message to a mobile device. In addition, if the Tweeter has set his profile to be public, his tweets are available globally for the world to see and are even viewable on Google searches.

In the case of Facebook, a user's post, called a "status update," becomes publicly viewable only among her circle of "friends" ― other users she has approved to have access to her Facebook page. Even among her "friends," however, the Facebook user can select who will be privy to her status updates and who will not. On the flip side, Facebook users can employ looser privacy settings so that their status updates are available for all to see.

In addition to status updates, each Facebook user's page has a "Wall" on which she, or her friends, can post comments, pictures, music, videos, and links to websites. A Facebook user has the ability to control who can post to or view her Wall. A "News Feed" provides up-to-the-minute posts of all the comments and updates posted by her friends. Similarly, a Tweeter's "Home Page" provides a running, real-time list of the tweets of all the other Tweeters he is following. These "feeds" are issued 24 hours a day, seven days a week. Facebook and Twitter also have direct messaging capabilities allowing users to privately e-mail each other.

Because employees inevitably socialize in the real world, they may eventually find themselves becoming mutual friends in the virtual world on Facebook and followers on Twitter. That means that "friends" and "followers" of users on those sites will be receiving real-time tweets, status updates, and posts whether they like it or not. Of course, if they don't like it, they can simply "unfriend" or "block" a Facebook friend or change their settings so posts from that user won't be viewable. Similarly, a Tweeter can "un-follow" or "block" another person and prevent people from following his tweets. In sum, social networking sites generally have various mechanisms in place for users to control not only what they want others to see but also what they will be exposed to when something is posted by someone in their network.

Virtual harassment

In the employment law context, workplace harassment is not limited to conduct of a sexual nature because harassment may involve race, religion, age, and national origin, to name a few possible grounds. Generally, unlawful workplace harassment (based on protected characteristics) occurs when unwelcome conduct unreasonably interferes with an employee's work performance, or creates an intimidating, hostile, or offensive work environment. Isolated and stray remarks generally don't suffice; the conduct must be "severe or pervasive."

Sexual harassment, perhaps the most common type of harassment, can occur in a variety of circumstances, including:

• The victim and the harasser may be a woman or a man. The victim doesn't have to be of the opposite sex of the harasser.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a coworker, or a nonemployee.
• The victim doesn't have to be the person harassed but could be anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without the victim suffering economic injury or being terminated.

For example, consider two co-workers who become friends online.  Tweedledum posts flirtatious and sexually suggestive tweets and posts. Tweedledee then complains to HR that she's feeling harassed by Tweedledum. When asked for details about her complaint, she explains that the harassment is happening strictly in the virtual world, online through Facebook and Twitter, and that she has no complaints about any inappropriate behavior in the real-world workplace.

Suggestions for policies and enforcement

This example is for illustrative purposes only. However, it highlights how social media platforms can unwittingly become an avenue for harassing behavior that triggers your company's antiharassment policy. Although Tweedledee admits that she hasn't suffered any harassing conduct in the real-world workplace, she claims to have suffered sexual harassment by a coworker, and she has the "tweets" and "Wall posts" to prove it. So what should you do in response?

Determine the time and place of the conduct. Your company rightly wants to maintain a healthy, safe, and productive workplace free from discrimination, harassment, sexual advances, or any other comments or conduct that creates an offensive, intimidating, or inappropriate work environment. Even though Tweedledee hasn't reported any physical workplace harassment, she has complained about being harassed by a coworker. The company should therefore take her complaint seriously and investigate it in accordance with its antiharassment policy.

Preliminarily, your investigation should include whether the "virtual harassment" occurred during work hours or through the company's computer system ― employers are generally not expected to be responsible for employees' off-duty or off-premises conduct, especially when virtual harassment is completely unconnected to the workplace. Of course, even if the purported harassment is wholly off-duty and off-premises, the investigation should examine whether the conduct, or its effects, have spilled over into the workplace ― much like investigating a complaint of off-duty harassment at a social happy hour that later causes interference in an employee's working environment. Indeed, even if the harasser's online behavior occurred strictly off-duty and off-premises, it's feasible that the alleged victim received and viewed the offensive posts during her work hours on your computer.

Should you simply block access to sites? While your logical reaction may be to simply block access to social networking websites on the company's computers to mitigate your exposure to liability, such a tactic isn't completely effective. The fact remains that online content is likely viewable from another mobile device like a smartphone as well as other Web sources. In addition to losing out on networking and business development opportunities, employee morale may suffer when you punish the entire workforce by blocking access because of the misbehavior of a few Tweedledums. However, this course of action is at least worthy of consideration.

Policy content. Accordingly, your company should have policies establishing that in the virtual world, just like in the physical workplace, employees should follow business conduct guidelines, good judgment and etiquette including avoiding discrimination against, harassment of, and other inappropriate actions toward their coworkers. Social website policies can combine aspects of your existing rules for employee e-mail and Internet use and your policies governing communication and confidentiality. Make it clear that employees who are found to have engaged in harassment or discrimination of another employee will be subject to disciplinary measures, including termination. Depending on your type of business and publicity issues, you may also inform employees that if their profile refers to their employment, you expect them to clarify that they speak only for themselves, not on behalf of the company.

Your policy should advise employees that if they encounter behavior by a coworker that wouldn't be acceptable inside the company, they should simply remove their connection from that user ― e .g. , by "unfriending," "blocking," or "un-following" the person or changing their settings so they're no longer exposed to the offensive comments. Even those approaches may be insufficient, however, because postings on the profiles of mutual friends or followers might still be viewable, and the harasser may set up alter-ego profiles or try direct messaging, "re-friending," or "re- following." If cutting all connections doesn't prove sufficient or if the behavior persists, the employee should report the abuse to the relevant service provider. Most social networking websites have their own conduct and antiharassment policies that can result in disqualification of a user.

Be mindful of off-duty lawful activity laws. Many states, including New York, have laws prohibiting employers from taking adverse employment action against an employee because of his lawful off-duty conduct, such as political or recreational activities. New York Labor Law § 201-d, which makes it unlawful to terminate an employee because of his "recreational activities outside work hours, off of the employer's premises," may be an issue to consider. Under the statute, recreational activities are defined as "lawful, leisure-time activity . . . [that] is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material." The statute affords no protection to an employee whose off-duty conduct "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest."

Whether an employee's conduct in the virtual world constitutes "harassment" or is unlawful depends on various factors. You will have to make an appropriate inquiry, perhaps with the aid of legal counsel, into whether the conduct at issue fits the statutory definition of recreational activity. Even if the conduct is protected by the law, however, the poor judgment exhibited by the employee's conduct may likely conflict with your business interests in having a diligent, efficient, intelligent, and productive workforce. Given the lack of clear case law and regulation in this area, any incidents will likely require a case-by-case approach.

As part of your efforts to establish policies governing your employees' use of social Web media, you should recognize that harassment issues may arise in the virtual world off your "premises" and spill over into the real world. Just like harassment that may occur at happy hour or a holiday party, these incidents should be dealt with swiftly and effectively. The best guideline is to approach virtual worlds the same way you deal with problems in the physical world ― by using sound judgment and being guided by your relevant values and business conduct rules.

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I am also a contributing author to the New York Employment Law Letter. In its September 2009 issue I wrote about the resurgence of telecommuting for various reasons, including efforts to reduce company overhead while increasing productivity during the recession. See Telecommuting: What employers need to know about managing offsite workers.

Now an official pandemic, the H1N1 Swine Flu is forecasted to have a resurgence this fall and winter which may be another reason to offer a telecommuting option to employees. The U.S. Centers for Disease Control (CDC) has published useful guidance for businesses on managing the workplace in relation to this pandemic. Indeed, one of the CDC's recommendations includes: "Establish policies for flexible worksite (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if needed." And yes, even the U.S. Occupational Safety &

Health Administration has published helpful guidance in ensuring a safe workplace in the face of this global pandemic.

While telecommuting is easily justified, there are myriad legal issues involved that warrant review of the resources cited here.

Some of those include: (i) Telecommuting as a "Reasonable Accommodation" of a Disability; (ii) Discrimination/ Eligibility Issues; (iii) Wage and Hour Issues (travel, standby time, downtime); (iv) Workplace Safety (ergonomics, OSHA compliance, workers compensation, third party liability); (v) Commercial, General Liability, Homeowners Insurance; and (vi) Protection of Confidential and Proprietary Data; (vii) Telecommuting Policies and Agreements.

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