Write ups and "fraternization". Some questions I badly need answered.
SeriousSam2
4 Posts
Hi. I've searched high and low for answers for these questions, but I couldn't seem to find any answers. Hopefully someone on here can help me.
My first question regards employee writes ups. As a regular employee, I hated signing them, so I understand how employees feel when they have to sign them. I remember someone telling me a LONG time ago that if a write up (counseling report, whatever you want to call it) is NOT given to an employee within a certain amount of days, it's void and completely useless, and the employee no longer has to sign it. So for example, if Employee 1 got written up on July 18th for clocking in too early from his required break and got written up for it, but is not given this write up until August 18th and not even told about until a full month after, doesn't it mean the write up is useless and that the employee no longer has to sign it? I've been wondering about this for a while but I'm not entirely sure how it works.
My second question involves write ups again. If an employee calls in sick for his shift (and they are genuinely sick) HOURS before the building even opens, is it legal for management to tell them "If you don't bring in a doctor's note you're going to get a write up, and if you don't bring in a note, you're going to get a write up for not getting your shift covered"? To my understanding, a doctors note is not required unless you miss more than two days of work. When I asked someone about this, I was told that what they person will be written up for is not getting their shift covered, which is sometimes impossible given the day. So, can the employee be punished because they were too sick to come into work and didn't feel like spending money on a doctor? What I was told was that it was company policy, but I was thinking that company policy doesn't override actual Labor Laws.
And finally, my third and last question. There's been SO much confusion about this topic that I have no idea what to even tell people when they ask me. We naturally have two types of employees: Managers and entry level employees. ALL of us were told that managers are unable to hang out/be friends with employees OUTSIDE of work, while off the clock, and not on company time, if they are your subordinates. I've been told that if a manager is seen hanging out with an employee outside of work (whether it'd be going to a movie, having dinner, what have you) it's grounds for being fired/demoted. When I asked about this, I was told that all the employees are still employees outside of work and all managers are managers outside of work. They said that doing this is "fraternizing" with employees. But I was curious because technically, since you're off the clock and not on company time and not working, no company or business has the right to tell you what you can and can't do OUTSIDE of the work place since you're off the clock. I compared it to someone telling an employee, "You can't drink casually and you can't smoke and you can't cuss and you can't do anything you aren't able to do while at work OUTSIDE of work because you're always an employee, even off the clock." This made absolutely no sense to me.Is this legal? When I bring these points up, I'm again told, "It's company policy," but just because it's company policy doesn't mean it might be entirely legal. I can understand the reasoning for telling people this, as to avoid favoritism in the workplace, but if you keep your business outside of work and if it's in your own private life, how is it legal that they can fire you for something your doing off the clock? I've read that businesses have been given some right to a certain degree to adopt these rules, but can you fire someone for hanging out with someone who works with you while keeping it strictly out of work?
Any answers would be greatly appreciated. And if possible, does anyone have any official links to answers for these questions so I can actually clear these little things up at work (so I'm not given an answer like, "You can't trust what's written on a message board")?
Thanks.
Comments
Question 1: Do writeups have an "execute by" date on them?
Answer: No. Writeups don't become useless after a certain amount of time but they do invite uncomfortable questions if left to sit too long. For example, one might wonder why Mr. Smith was not written up for poor attendance until a month after his last attendance policy violation. That might make it look like the Company is trying to get rid of Mr. Smith, the 41 year old veteran, of whom the Company only recently learned was afflicted with post tramatic stress disorder.
Question 2: Can we be require doctors' notes from employees who take time out due to illness and can we punish them for failing to get their shift covered when the illness-related absence was unforeseen?
Answer Part 1: You can require doctors' notes for absences. However, doctors frequently won't say more than "x was under my care from A until B". Will you then pummel your employee into getting a note saying what you want it to say, specifically that the cause of the employee's absence on a given day was due to illness? If you are self insured, beware of HIPAA. Self-insured or not, beware of an inappropriate health question under ADA. This is the kind of thing that has driven many employers to no-fault attendance policies.
Answer Part 2: Can you punish the person for failing to get their shift covered when they called in ill hours before the business was even open? Why yes, you can. However, if the person is covered by FMLA, this could be a problem for you since you must treat the absence as if it never ocurred. Barring any FMLA concerns, assuming this isn't workers' comp, and it doesn't sound like an ADA issue -- you can do this but it's not what would be recognized as a best practice today. Disciplining peolpe for being sick never plays well in front of a jury and generally leads to turnover rather than productivity.
Question 3: Fraternization issues
Answer: I recently researched a lot of this stuff. You have more control over management employees than non-management employees because the National Labor Relations Act (Wagner Act), as amended, provides protection for employees engaged in protected, concerted activity. Protected activity is almost anything for employees' mutual benefit or protection. Concerted activity just means 2 or more employees are involved. So, if two non-management employees want to show each other their pay checks, you can't stop them. Now, getting away from the management issue, employees outside of work have certain rights and employers do not have unlimited control. So far, anti-fraternization (don't socialize, don't become romantically involved, either or both) policies are largely a losing proposition and you are better off having a policy requiring notification of a supervisor-subordinate relationship.
Thank you very much for the reply.
But one more thing: You say employees are pretty much protected and allowed to socialize outside of work, but what about a scenario like this one: Let's say Mr. Jameson has just been promoted to management status, but he's told that as a manager, he is no longer allowed to socialize or hang out with regular employees that were his friend(s) before his promotion. If Mr. Jameson keeps his relationship with these regular employees strictly out of the workplace and on his own time (and the employees do the same), can he be fired for something like that? Or if Mr. Jameson is friends with someone who does not work in the same building, but that person is good friends with an employee that IS his subordinate, wouldn't that technically be considered fraternizing with an employee, even though he's indirectly socializing with them by association?
Again, many thanks for the reply.
The main problem is that it's hard to make anti-fraternization stick. Although Mr. Jameson is not protected by the NLRA, Mr. Jameson does have freedom of association outside of work. Straight forward "don't hang out with the non-management employees" policies are generally unenforceable. If you can find an attorney who will tell you otherwise, have him or her get in touch with me. From a practical standpoint, it's also very hard to police these things without invading privacy, which is another post hole you can step into. Do you trust your managers not to spy on each other, perhaps even to get someone fired to create an opening for their own romantic interest so that, once they're both on the management team, their relationship can be open? Also, what's so great about accounts receivable and accounts payable non-managerial employees being allowed to have a romantic relationship? That breaches the whole point of separation of duties but would be allowed under your anti-frat policy. Is it a good idea to have the VP of Finance/Accounting dating the VP of Sales? What will happen under the type of plan you are contemplating is that romance will go underground and then you won't even know when you have a consensual relationship gone bad situation until it winds up in a harassment (or worse) claim against a member of your management team.
The most reliably enforceable (i.e., the least likely to result in a successful suit) is a policy that requires Mr. Jameson to report his romantic relationships with subordinate employees to HR so that HR can have Mr. Jameson and his significant other decide if Mr. Jameson should be moved out of a management role or if Mr. Jameson's significant other should be transferred to another department doing the same job or another job he or she is qualified for (preferably with the same pay, benefits, potential for promotion, etc.). It keeps getting tougher every day. It's more difficult to try to force Mr. Jameson to talk about his romantic relationships with non-subordinates.
I'm also suspicious of this type of management style outside of the military: what is the decision maker trying to accomplish? This business of Mr. Jameson potentially being friends with someone outside of the building who is friendly with someone he is friends with (now we're not even talking about romantic involvement) also strikes me not only as intrusive but as a waste of Company time. Where will it stop? A friend of a friend in a different state who knows Mr. Jameson's non-management bowling team member? what is the Company's legitimate business interest in monitoring or even caring about relationships that are not both romantic and between a member of management and someone subordinate to that manager?
TXHRGuy - I always get a laugh out of your examples (bowling team member)!!
I agree that this is taking things too far - regarding the fraternization outside of the office. It seems like the company is afraid that if people hang out together outside of work that things will get said (i.e. alcohol allows for some loose lips) like salary info, disciplinary info, etc. Now if confidential information is getting out then the company can investigate and discipline based on what is found, but I think having a policy like this based on a "what if something is said" situation is a little much. I think you can accomplish what you need to by having a code of conduct policy that talks about confidential information and need to know basis of certain things.
The other issue is what the state law says. There have been quite a few states lately that have passed laws banning an employer from disciplining an employee based on what they do outside of work.
[quote user="IT HR"] TXHRGuy - I always get a laugh out of your examples (bowling team member)!!I[/quote]
Sir:
What is wrong with bowling? Can adults not throw balls at sticks for a fee while wearing rented shoes (additional fee) without derisive remarks from their professional colleagues?
TXHRGuy
Actually it is Ma'am! [:)]
There is nothing wrong with bowling! That was just the example that I was laughing at. I always like to read your postings because you like to throw examples in there and they are usually humorous to me!
No big deal!! [:)]
Sometimes we can all use some humor inserted where possible because of some of the situations we deal with!
Very helpful posts. Thank you.
I've been looking around the internet and have found a whole bunch of articles that are kind of ambiguous on the subject. On one hand, they said it's ruled unlawful, but on the other hand, they imply that employers have the right to enforce these kinds of rules. I read that in California, in particular, you cannot stop people in the workplace from "hanging out" if they're "hanging out" to discuss business subjects, but most of the articles didn't really say whether or not it was legal to prevent people from being friends outside of work on your own time. I also read an article that said people are protected and allowed to do whatever they want on their own time as long as it's legal activity.
Does California specifically (where I live) have a law that prohibits employers from enforcing these kind of odd rules? Because every time I bring up the point that these rules might not be entirely legal, I'm ALWAYS told "Well, it's in the employee handbook, therefore it's 100% percent legal." But again, I'm just thinking to myself that just because it's in a very badly and sloppily written handbook doesn't mean it overrides labor laws.
Again, many thanks for the replies.
Distinctly male? Now what is THAT supposed to mean??? [:)]
If I were an attorney presenting the anti-fraternization to a jury, I would make the argument along these lines: "So XYZ Inc fully expects my client to get up in the middle of a meal or a drink at a bar or restaurent simply because people he supervises walks in and says hello? This restricts where my client can go and who he can associate with on his own time."
Going back to my Air Force days, I fondly remember how officers would walk into a restaurent after hours, see enlisted people there, say hello, then walk away and sit at another table. I do not see why XYZ Inc would make such a fuss over anti-fraternization unless they've been burned in the past.
Of course, right after I post, I remember another point.
As long as the "fraternization" is in a PUBLIC place and is entirely appropriate (no dancing, touching, or other inappropriate behavior that would create an uncomfortable environment), then everything should be ok. If the "fraternization" happens in a PRIVATE residence, then you could be staring at a 7-10 split.....oh great, you've got ME thinking about bowling now.
If you speak with an attorney on this, ask him or her to review the recent Brinks case before the NLRB. This is specifically how NLRA applies to anti-frat policies.
[quote user="hr_gmc"] <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
PUBLIC place and is entirely appropriate (no dancing, touching, or other inappropriate behavior that would create an uncomfortable environment), [/quote]
I think that is still a bit constricting. Consider the bowling team to wins the championship and high fives each other. You have touching and in some conservative states dancing! And I have to say, I hate bowling (sorry TXHR) so I would consider it inappropriate behavior no matter what.
The only way we address this issue is that if a relationship exist, ie. dating, marriage etc. you can not have that person as a direct report or the ability to effect their job status in any way. The company reserves the right to transfer one of the employees to a different work location.
California.
I asked one of the other managers about it, and he said his father in law is an attorney and knows about these types of things, and he said they cannot fire you, or punish you, for something you're doing on your own time, even if it includes "dating" people in the workplace, because it's on your own personal time, not on company time, and not in the building. It seems more logical and reasonable that there would be a law preventing companies from enforcing these rules, because I always see it like once your employed there, you have to follow what rules they set for you, rules that you have to follow even off the clock. Struck me as kind of cult-ish. I figure that they can transfer you to another building, but at the same time, that seems like indirect punishment for, again, something you're doing off the clock, on your own personal time. It's like saying if you go to another company that sells the same products or provides the same service as them, while off the clock, that you're aiding competitors and thereby creating a conflict of interest because you like company B even though you're not employed by them.
I'm not sure if that last part made sense, but for example: If Mr. Jameson works at a Burger King, and he decides that when he gets off work, he's going to Jack In the Box because he enjoys their food more. So couldn't this create a "conflict of interest" because he'd be aiding and helping a competitive chain? This doesn't pertain to fraternization, but I'm applying this to the notion that a company can limit what you do on your own time if they think it'll create a conflict of interest. It all seems insanely crazy to me.
So pretty much what all this boils down to is: Is it legal for companies to tell you that you cannot date, hang out, or socialize with people you work with, no matter what position they're in, if it's on your own time and off the clock and miles away from the building? In California?
[quote user="hr_gmc"] <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
PUBLIC place and is entirely appropriate (no dancing, touching, or other inappropriate behavior that would create an uncomfortable environment), [/quote]
I think that is still a bit constricting. Consider the bowling team to wins the championship and high fives each other. You have touching and in some conservative states dancing! And I have to say, I hate bowling (sorry TXHR) so I would consider it inappropriate behavior no matter what.
[/quote]
High fives would certainly belong under the heading of "appropriate behavior". My main point is that the behavior, including dancing, touching, etc that is INAPPROPRIATE should be forbidden even outside of the workplace.
[quote user="SeriousSam2"]California.[/quote]
At the time of this writing, California is an employment-at-will state.
[quote user="SeriousSam2"]I asked one of the other managers about it, and he said his father in law is an attorney and knows about these types of things, and he said they cannot fire you, or punish you, for something you're doing on your own time, even if it includes "dating" people in the workplace, because it's on your own personal time, not on company time, and not in the building.[/quote]
The other manager's father-in-law is either a bad attorney or the other manager did not understand or properly recall what was said to him. You can be fired in California by lottery and your only recourse will be to collect unemployment. You can be fired in California because you wear birkenstocks off the clock and your only recourse will be to collect unemployment unless you can demonstrate that the wearing of birkenstocks has an adverse impact on people because of a protected characteristic or that the choosing of birkenstock wearage off the clock was the chosen criterion specifically to get you and provide a fig leaf for some other more sinister (illegal) reason.
[quote user="SeriousSam2"]So pretty much what all this boils down to is: Is it legal for companies to tell you that you cannot date, hang out, or socialize with people you work with, no matter what position they're in, if it's on your own time and off the clock and miles away from the building? In California? [/quote]
And I return to my prior answer: such a policy is 100% unenforceable under NLRA for non-exempt employees. The status of such a policy with respect to exempt employees must be determined on a state-by-state basis. The status of such a policy with respect to exempt employees and their interaction with their own subordinate employees appears to be safely enforceable at this time.