New York Employment Lawyer Blog

FAQ: Every year at our office holiday party, there are several people who become intoxicated and behave inappropriately. As an employer, can I be held liable if one of my employees sexually harasses another employee or becomes intoxicated at the office holiday party and then gets into an automobile accident and injures an innocent party?

This is a great question this time of the year when employers are holding office holiday parties. As you plan your office holiday party, you probably have the best of intentions for the party. This is your way of showing your employees your appreciation and a way for your staff to unwind and socialize. However, the potential for liability is enormous between sexual harassment claims and the dangers of drunk driving. If one of your employees sexually harasses another employee at your holiday party, it is still a work related incident. Similarly, any discriminatory conduct or unwelcome racial jokes or obscenities at the holiday party can also be used against you in a discrimination lawsuit.

You could face great potential liability if you are serving alcohol and one of your employees drives home intoxicated and injures a third party. Although the potential for employer liability varies from state to state, all employers should be aware of the following case.

An Illinois Appellate Court recently found that Korean Airlines could be vicariously liable for its employee's negligent and intoxicated conduct which lead to a deadly car accident after a dinner party. The Court held that employer liability "can arise from acts, omissions or, in the case of respondeat superior, the employer-employee relations, so long as the employee's negligence is within the scope of employment." Accordingly, Korean Airlines could be held liable if it can be shown that the employee was acting within the scope of her employment at the time of the accident. Accordingly, if you make employees come to your holiday party as part of their employment or if you have the party during working hours, you could be potentially liable for your employee's acts caused by intoxication.

Continue reading "Employer Liability FAQ on Holiday Office Party " »

FAQ: My boss says that I don't have to come to work but I have to be on call and available to come in as soon as he calls or pages me. Should I be paid for the time I spend waiting?

Many industries require their employees to be "on call" or "stand by" and wait for a page or phone call to report back to work. You may be required to stay close to your place of business or within a certain range and, in certain situations, you should be paid for your "on call" time.

According to the Fair Labor Standards Act, if you are required to remain on your employer's premises while on call then you are working and your time is compensable. However, if you are required to be on call from home or from a number where you can be reached, it will depend on the specific facts. The more constraints and restrictions on where you can go and what you can do while waiting, the more likely that your on call time will be considered work. For example, the following factors have been used to determine whether your on call time is considered work and therefore compensable:

• How close to your employer's premises are you required to stay. For example, if called, do you need to report back within 10 minutes or 2 hours?

• Are you allowed to consume alcohol or do you need to remain sober?

• How often are you being paged or called? For example, while on call, are you being paged every 5 minutes or once every 3 hours?

• How quickly do you have to respond to your pager?

• Are you required to be ready to report in a uniform?

The more constraints that the above factors place on your ability to use your time, the more likely that your "on call" time will be considered work and compensable under the FLSA. The FLSA states that "an employee who is required to remain on call on the employee's premises or so close thereto that he cannot use the time effectively for his own purposes" is working and therefore compensable. Given all the factors involved, whether your on call time is considered work or not will depend on your particular facts. If you think you should be compensated for your on call time, call our FSLA Attorneys at Villanueva & Sanchala to discuss the facts of your case and determine if your employment rights are being violated.

Continue reading "Should I get paid for "on call" or waiting time? - FLSA Q&A Series" »

FAQ: Many of my employees and supervisors are on Facebook, LinkedIn and other social media sites and have been posting work-related comments in violation of my company's social media policy, which prohibits employees from posting anything about the company. Can I fire or discipline an employee for violating the policy?

Your question raises an important and timely subject for employers as well as employees that our Social Media Employment Law Attorneys have been encountering lately. The proper use of social media sites by companies and its employees can have a significant positive impact. In today's technological age with dozens of social media sites, employers should consider the benefits and risks of appropriate uses of social media before crafting their employee policies to maximize the value while limiting the risks. Simply having a policy is not enough, companies should train their employees on the legal and company considerations.

A recent case underscores the importance of having an effective social media policy. The National Labor Relations Board ("NLRB") filed a complaint on behalf of Dawn-Marie Souza, an emergency medical technician, against her former employer, the American Medical Response of Connecticut ("AMR"), for firing her for violating its company's Internet policy by criticizing her supervisor on Facebook. According to the complaint, Souza was denied union representation after her supervisor asked her to prepare an investigative report regarding a customer complaint about her job performance. Later the same day, she posted disparaging remarks about her boss on her Facebook page and then exchanged negative comments about him with other employees. AMR responded that Souza was fired because of complaints about her work and not because she violated company policy prohibiting employees from making any negative remarks about their bosses or discussing the company on the Internet.

However, the NLRB claims that Souza was illegally fired and that her comments on Facebook are protected speech under federal law. The NLRB's acting general counsel has stated that "[i]t's the same as talking at the water cooler" and that "employees have protection under the law to talk to each other about conditions at work." According to federal law, both union and non-union workers have the right to talk to co-workers and make remarks about their employers on their own time.

An NLRB judge will hear this case on January 25, 2011. Given the controversial nature of this issue and the far reaching implications, the outcome could affect employers nationwide, especially employers who have a broad policy prohibiting any comments on the Internet. If you have a blanket social media policy, consult with your attorneys to ensure that you are not infringing on any of your employee's rights or labor laws. In a survey by the Society of Corporate Compliance and Ethics, approximately 25% of employers surveyed stated that they had disciplined an employee for improper activities on social networking sites.

Continue reading "Social Media Policies and Rules in the Workplace & Employee Discipline" »