'Who Put Jello in My Stapler?! Breaking Employment Laws Can Happen Accidentally, Often Not on Purpose

If you’ve ever watched The Office (or haven’t), and regardless whether you’re a “paper pusher” like the show’s characters (Dwight, in particular, seems to be the guy who routinely gets Jello put in his stapler), you know that your workplace is subject to a multitude of rules and regulations. In schools, factories, retail, food service, healthcare, construction–basically, any workplace–conflicts inevitably arise between people based upon their background, ethnicity, gender and lifestyle differences. These conflicts often lead to disputes; such disputes sometimes erupt into full-scale legal battles over laws applicable to their employment. 

These days there are a surprising number of workplace situations that can become–very innocently and unintentionally–legal violations for employers. 

The U.S. Department of Labor administers and enforces more than 180 federal employment laws. State and local governments heap their own regulations in addition to these. With all those rules, laws, mandates and reporting requirements to keep track of, it’s easy to violate an employee’s rights without even knowing it.

Here's a short “Top 10” list (with apologies to David Letterman!) of “Common Situations That Most Often, Almost Accidentally, Cause Violations of Labor Laws.”

1. Whiny employees. Want to fire that employee who has been complaining about her job, your customers and you? Doing so might be deemed an unfair labor practice under the National Labor Relations Act (NLRA) even if the employee does not have a union.

2. Required drug testing. An employee fails to complete a mandatory drug test because she has a “shy” bladder and couldn’t urinate with someone nearby. Can you fire her? The Equal Employment Opportunity Commission (EEOC) has recently opined that someone with a shy bladder could have a disability under the Americans with Disabilities Act (ADA). As a result of numerous amendments to the ADA, more impairments are considered disabilities than ever before.

3. Poor health habits. With the increased focus on the cost of wellness, you might be inclined to refuse to hire or even terminate those with bad health habits, but doing so may violate their rights. Some states (but not Michigan) have statutes protecting the off-duty use of lawful products. So, if your employees want to smoke a pack of unfiltered Camels, inhale Twinkies and imbibe Jose Cuervo “off the clock,” you have no right to stop them unless they show up intoxicated or otherwise violate company policies.

4. Smelling nice. Got a co-worker drenched in Fruity-tooty? Chanel No. 5? Axe? Musk? Whether you stink or not, it doesn’t matter. An employee’s complaint about a co-worker’s lavish application of colognes/perfumes/oils may be deemed a chemical sensitivity and considered an ADA disability.

5. Work-hour restrictions. Can you fire an employee who said he could work all shifts when he applied for the job but now says he can’t work after sundown Friday? No. You must first determine if you can reasonably accommodate the employee under Title VII of the Civil Rights Act of 1964.

6. Meal breaks. Does your timekeeping system automatically deduct meal breaks? What if an employee doesn’t take one? Under the Fair Labor Standards Act (FLSA), if an employee tells her supervisor she did not get the meal break because she was working, the time must be paid. In general, the practice of automatically deducting break time is an invitation to a lawsuit.

7. Working during off-hours. Is a nonexempt employee who answers e-mail at night or on a weekend entitled to pay for that time? If it’s more than trivial time and the employer knew or should have known the employee was working—as evidenced, for example by an e-mail—FLSA says they have to be paid. The fact is, an employer has to pay nonexempt employees for all time worked.

8. Raising a red flag. Employers need to be careful about disciplining or terminating an employee who has complained to government agencies (or even internally) about such things as wages and hours, unsafe working conditions, financial wrongdoings, harassment or other problems. There are dozens of whistleblower laws that protect employees from being penalized.

9. Medical history. Asking an employee about family medical history can be a violation of Genetic Information Non-Discrimination Act (GINA). While there are certain exceptions for casual "water cooler" discussions, it’s best to let all your employees know they simply cannot ask co-workers or subordinates about their medical history, or for that matter, details about their marital status, sexual preference or family.

10. Medical leave. Your employee has exhausted the Family and Medical Leave Act allowance and is not back after 12 weeks. Can you fire her? Not necessarily. Additional leave can be a reasonable accommodation under the ADA although it cannot be open-ended—one essential function of every job is attendance.

So how do managers and fellow employees avoid "accidentally" breaking the law?

• Make sure you have legal counsel advise you.
• Designate someone in your organization to handle HR issues and help them keep up-to-date by attending seminars.
• Don't reuse employment documents from the Internet—but if you do, have counsel review what you’ve pilfered. Your free find may cost you a bundle in the long run.
• Make sure you have a harassment policy and provide training for all employees. They should know what you expect from them and what they can expect from you.
• Document, document, document. Or, more to the point, document properly. Juries, judges, the employment security commission and anyone in the legal food chain expects a paper trail. He said, she said infuriates a jury.
• Treat employees with respect and dignity, even when you have to discipline or terminate them.

In employment law, ignorance is not a valid defense. Employee lawsuits cost employers billions. Much of that cost could be avoided with an ounce of prevention. As Dwight Schrute from The Office might say: “I don’t believe you. Continue.”

(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in criminal defense, family law, consumer protections, and personal injury cases, as well as juvenile, Probate, real estate and business litigation.)