Overview: Employers should make sure that their policies and practices clearly convey to employees and supervisors the type of conduct that is strictly prohibited by the employer.
This may include, but is not limited to: violence/fighting; verbal abuse; theft; possession or use of illegal drugs in the workplace; inappropriate use of the internet, email, voice mail or other forms of electronic communication; sleeping and loafing on the job; gambling at work; workplace bullying; and harassment or employee discrimination.
These types of activities can have a detrimental effect on the employer's business as well as employee productivity and morale. Employers should make sure that employees and supervisors understand the parameters of prohibited conduct and let them know the disciplinary consequences.
The policies regarding prohibited conduct should be clearly defined so employees and supervisors are well aware of the employer's expectations. Further, all employees and supervisors should be instructed to report any prohibited conduct by co-workers or supervisors and bring it to the employer's attention so that corrective measures may be taken.
Trends: While employers have a clear right to manage their workforce and implement workplace rules and policies regarding prohibited conduct, employers should be careful due to recent guidance from the National Labor Relations Board (NLRB).
The NLRB has demonstrated that it is willing to strike down facially neutral employment policies which violate the right of both union and non-union employees to engage in protected concerted activity or collective action to improve workplace conditions under Section 7 of the National Labor Relations Act (NLRA).
For example, the NLRB has invalidated workplace polices that sought to make employee solicitation and social media use at work prohibited conduct because it determined that this may prevent employees from engaging in protected activity.
Thus, employers should narrowly draft policies and use specific examples of protected conduct to show that the employer is not trying to interfere with employee rights, but instead trying to protect the employer's legitimate business interests.
Beth P. Zoller, J.D., Legal Editor
Colorado has joined the growing trend among the states to protect the social media privacy rights of employees and applicants. Employers are now prohibited from demanding access to an employee's or applicant's personal social media account or service through his or her personal device.
Arkansas has joined the increasing number of states such as California, Illinois, Maryland, Michigan, Utah and New Mexico that have passed a social media privacy law prohibiting employers from requesting or requiring current or prospective employees to disclose usernames and passwords to their social media accounts or to provide access to such accounts.
The National Labor Relations Board (NLRB) continues to send a strong message to employers that the right of both union and nonunion employees to engage in protected concerted activity extends to social media communications.
The California Privacy Section was recently updated to include a discussion of the California Court of Appeals decision in Ignat v. Yum! Brands, Inc., 214 Cal. App. 4th 808 (2013), which held that an employee may file an action against an employer for the public disclosure of private facts about the employee even if the disclosure was made orally to others and not in writing.
This section of the XpertHR best practice manual discusses how a disciplinary investigation should be conducted, including suspension from work, witness statements and the features of an investigatory interview.
The California Court of Appeals held in Ignat v. Yum! Brands, Inc., 214 Cal. App. 4th 808 (2013), that an employee may file an action against an employer for the public disclosure of private facts about the employee even if the disclosure was made orally to others and not in writing.
The Tennessee Employment At-Will and Terms of Employment sections have been updated to reflect a discussion of the intentional interference with employment cause of action available to employees, illustrated in a recent case decided by the Tennessee Court of Appeals.
When employers need to investigate claims of harassment, discrimination or other workplace misconduct, the process of conducting an effective internal investigation can be challenging. This step-by-step recitation of the important issues and pitfalls of internal investigations will guide employers through the process, removing the guesswork.
XpertHR's High-Tech Resource Center for HR: Employee Handbooks helps high-tech employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
HR guidance on ensuring that policies adequately advise employees and supervisors of prohibited workplace conduct and the consequences of engaging in such behavior.
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