Motschenbacher & Blattner LLP

CAN YOU REGULATE OFF-DUTY CONDUCT?

Suppose you discover that one of your employees is “secretly dating” an executive from the competition. Can you discipline or fire the employee?

Federal law is not entirely clear in this area. Such an action could trigger a lawsuit based on discrimination or invasion of privacy. As a rule of thumb, employers have more leeway to regulate off-duty conduct of workers when the activities are illegal, especially if they specifically relate to the job. Otherwise, it is a slippery slope to navigate.

In addition, many states have enacted laws that prevent employers from discriminating against employees who participate in legal activities outside work. Also, it is generally illegal for an employer to unreasonably intrude into an employee's “seclusion.” This refers to the physical areas where an employee has a reasonable expectation of privacy.

The following are several key instances involving off-duty conduct.

Drug-testing: As a general rule, drug testing is permitted in the course of a job application, if the employee performs work that is security sensitive or if the employee has given the employer cause to believe that he or she is impaired by drugs at work.

Religious beliefs: An employee's religious beliefs (and activities relating to those beliefs) are generally protected by federal and state laws. However, if an employee exhibits unreasonable behavior at work—such as attempting to convert other employees—he or she may be subject to discipline.

Outside employment: There is no strict legal prohibition against moonlighting. However, an employer is able to restrict after-hours work that is in conflict with its business. As a result, if an employee begins working for a direct competitor, it may be just cause for discipline or discharge.

Marital status: Generally, employers cannot discriminate on the basis of marital status or monitor such status, except for its need to regulate employee benefits such as health insurance. But the legal boundaries can become blurry when one spouse applies for a job where his or her spouse is a supervisor or, even more tenuous, if the spouse works for the competition.

Illegal activities: It is questionable whether an employer may discipline or discharge employees who have been arrested for driving intoxicated or for the commission of a crime. State law often offers legal protection to the employee. Generally, employers may investigate further only if the conduct will have a direct impact on the business.

Do not take any action until you consult with an attorney experienced in employment law.

SEXUAL HARASSMENT: AVOID LEGAL PROBLEMS

This is the first of a two-part series on sexual harassment. The first part is directed at employers.

Sexual harassment comes in two basic forms. “Quid pro quo harassment” occurs when employment decisions are determined by whether or not a person submits to sexual advances or demands. “Environmental harassment” represents unwelcome sexual conduct that creates an intimidating or offensive work environment.

The Equal Employment Opportunity Commission (EEOC) says a single incident or isolated incidents of offensive behavior generally do not create a “hostile environment” unless the conduct is severe.

An allegation of sexual harassment is strengthened if the complaint is contemporaneous. Note: The EEOC considers a complaint to be “contemporaneous” even if the worker does not notify the employer about the unwelcome conduct until he or she quits her job. Once the company receives notice of a complaint, it should investigate the situation.

Each case is decided on its own merits. Nevertheless, the EEOC guidelines provide that an employer will be held responsible for the unreasonable acts of its employees, regardless of whether the acts were authorized or forbidden and whether the employer knew, or should have known, of the occurrence.

How does an employer determine whether the behavior is reasonable or not? This can be difficult. For instance, there may not be any witnesses to the alleged event (or series of events), or the witnesses could be biased. In some cases, the complaining worker may have encouraged the conduct or “played along” out of fear or intimidation.

To avoid potential problems, employers should maintain an environment that is free of sexual harassment. In the event a claim occurs, follow these steps:

Obtain a specific description of the event from both parties.

Ask for the names of any witnesses.

Collect all the other relevant facts (e.g., how long the conduct has been going on and whether the alleged victim has shown disapproval).

Keep records of the meetings.

Find out what course of action the alleged victim is seeking.

Ensure that the unwanted conduct has stopped.

When it is appropriate, respond with action.

Finally, try to educate all employees about sexual harassment issues. If your company has not yet established a grievance procedure for complaints, spell out a policy in the company manual.

CHECKING ON JOB CANDIDATES ONLINE

The Internet can be a valuable tool for employers. But there are certain legal risks associated with cyberspace searches.

Case in point: What if you rely on information about a different person with the same name? Or suppose you uncover a photo of someone with a disability. Could you be hit with a discrimination lawsuit if you do not hire that person?

There are no absolute guarantees, but here are three helpful hints.

Make sure you have “Googled” the right person. If you rely on information in the decision-making process, give the job candidate an opportunity to confirm or deny it.

Handle searches consistently. Use the same process for all ranks of employees. Do not discriminate on the basis of gender, race, age, name, or nationality or ethnicity.

Finally, if you are unsure of your legal position after conducting a search, contact an attorney.

Q'S AND A'S ON IMMIGRATION

Immigration into the United States continues to be a controversial subject. Yet, most people, including U.S. citizens, know surprisingly little about the current procedures for immigration. With that in mind, here are the answers to some basic questions about the immigration process.

Q. How does a foreign person enter the country legally?

A. An individual who wants to come to the U.S. must apply for either permanent residence or a temporary stay. This generally requires the person to submit an application to one or more of the U.S. agencies authorized to carry out the country's immigration laws. This includes the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State.

Q. How does someone apply for permanent residence?

A. If the person intends to stay in the U.S. permanently, he or she must obtain a “green card.” Green card holders are able to live and work in the U.S. and usually travel internationally with very few restrictions. Green cards are often granted to workers for whom domestic employers have petitioned for entrance to the U.S. or those who possess special skills. In addition, individuals in other classifications, such as individuals seeking political asylum status, may receive green cards.

Q. How does someone apply for a temporary stay?

A. If a foreigner wants to visit the U.S. temporarily, he or she should obtain a nonimmigrant visa. This enables the person to participate in specified activities (e.g., attending a college or conducting business) until the visa runs out. Besides students and business people, nonimmigrant visas may be issued for tourists, exchange visitors and workers with special skills.

Q. Are there any visa exemptions?

A. Yes. For instance, a visa is not required for short-term visitors from a country participating in the Visa Waiver Program. The person can stay for up to 90 days for either business or pleasure reasons. To enter the country, he or she must present a valid passport and airline ticket. (Those entering by land through Canada or Mexico must show proof of sufficient funds for the stay.)

Q. How does someone obtain a visa?

A. For citizens of most foreign countries (other than Mexico or Canada), the visa may be obtained at a U.S. consulate before departing for this country. If the person is already in the U.S. legally, he or she may be able to apply for an adjustment to permanent resident status or change status to another type of visa.

Q. Can someone be barred from entering the country?

A. Yes. No matter what a person's status for eligibility (for example, a person who is married to a U.S. citizen or a student accepted by a U.S. college), entrance may be denied for a variety of reasons. This includes prohibitions relating to application errors, the commission of crimes or certain diseases.

At this writing, Congress is considering changes to the immigration laws. Obtain expert legal assistance for actual cases.

ELDERCARE ISSUES OF A FAMILY MEMBER

The death of an elderly parent or spouse can throw an entire family into emotional turmoil. Normally, you can turn to family, friends and perhaps support groups for comfort. But this will not answer any financial and/or legal questions concerning the family member's estate. The following are several important considerations when a spouse or a parent passes away.

Property dispositions: The executor is charged with the job of wrapping up the estate. This may entail everything from sorting through the decedent's belongings to searching for a will to collecting insurance and retirement plan benefits.

Care of a parent: A surviving spouse is likely to need care after losing his or her mate. It may be as simple as having someone help out with odds and ends around the house. On the other hand, the need may be greater, depending on the parent's health and circumstances. For example, an elderly parent may not be able to live on his or her own any longer, so other accommodations must be made.

Health and financial issues: It may be a sensitive subject to broach, but the death of a parent may lead to discussions about quality of life for the surviving parent. This generally requires a long, hard look at the person's finances. If health care decisions have not been resolved yet, they may be determined through the use of a living will. Other legal documents, such as a power of attorney, may be created to ease decision-making late in life.

Note: If a power of attorney has not been created for a person mentally or physically impaired, it may be necessary to have a court appoint a guardian or conservator.

Estate planning: Proper steps should be taken to maximize estate-tax benefits available under the law. Furthermore, a new will or codicil should be drafted to accommodate changes in the surviving parent's circumstances. Other end-of-life issues, such as funeral arrangements, may be addressed as part of an overall estate plan.

Records: Finally, find out where your parent keeps important documents, including estate-planning documents, bank account numbers, retirement plan information, passwords to accounts, etc. Make sure the records are accessible.

Fortunately, you don't have to go it alone. Consult with an attorney experienced in eldercare planning for guidance.

Loose Lips— When an employee at a medical center returned from maternity leave, her job duties changed. The employee concluded that the change was related to her motherhood. Soon after, the CEO innocently asked about her children and their ages. Although the woman's discrimination claim was eventually dismissed, the lesson is clear: Watch what you ask your employees.

Making Noise— Generally, you must have owned and used a home as your principal residence for two out of the past five years to qualify for the home-sale exclusion. But you may qualify for a “partial” exclusion. New IRS ruling: An individual who bought a home near an airport did not know about the excessive noise from low-flying aircraft. Result: The IRS permitted the individual to claim a partial home-sale exclusion due to unforeseen circumstances.

Lemon Laws— Suppose you barely get out of the dealer's lot when you encounter a problem with the new vehicle you have just purchased. Is it strictly a case of “buyer beware”? Not necessarily. Every state has a “lemon law” on the books that offers some measure of protection for consumers. Your first step is to determine what the problem is. Depending on the state law, the dealer may be obligated to fix it immediately.

Safety Threat— In a new case, a disabled person applied for a job as a cashier. He was able to get around with a wheelchair or crutches, but preferred to use the crutches. The company rejected the application because it said the crutches posed certain safety concerns. Result: The Eighth Circuit Court said the burden is on the company to show that there is a direct threat to customers.

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