This is not your usual summer, Gentle Reader.
Dear Miss Mannerly:
Last week, we had our office picnic, but everyone is still working from home, so we did it on Zoom. About 30 employees were on the call. Everybody chose an appropriate outdoorsy background for their video, and most of us had a few beers. Anyone who wanted to eat could order take-out and send us the bill. As the HR Manager, I thought this would be a very safe way to have a company picnic, given the current circumstances, but apparently not.
“Stanley,” who was knocking back boilermakers, began to loosen up and tell some jokes that were dangerously close to the line. We tried to divert the conversation, but he then started on a rant about “Karens,” and said this just goes to show why women aren’t qualified to hold leadership positions. Miss Manners, our CEO is a woman, and her name is Karen!
Well, as you can imagine, with 29 witnesses, word got back to our CEO. After Stanley recovered from his hangover (which took several days), he apologized and said he’d been suffering from “cabin fever” because he’d been sheltering in place since March. Earlier on the day of the “picnic” he took his laptop and phone out onto his front porch to get some fresh air and sunshine while he worked. A female neighbor came by and yelled that she was going to report him to the authorities for not wearing a face mask and surgical gloves. He said he got angry, went back inside and started drinking, and was two and a half sheets to the wind before our “picnic” even started. He said that his neighbor was the “Karen” he was angry at, not our CEO. And his wife is an Executive VP for the biggest employer in town, so he doesn’t have any problem with women in leadership positions.
CEO Karen wants to fire Stanley. In addition to embarrassing her in front of all of our office, she says his comment about “Karens” and women in leadership positions is misogynistic. I’m torn — I’m a woman, too, and I get what Karen’s saying, but Stanley is a good guy who was under a lot of stress and behaved badly this one time. We are all so sick of living in isolation. How should I advise Karen? Kristin, not a Karen
Dear Kristin, not a Karen: Oh, dear. The risks of overconsumption of alcohol (not to mention more potent substances) may be even worse at a “virtual party” than at a live party. The attendees have potentially unlimited supplies at their homes, and they may not have a gentle escort to take them aside and tell them that they’ve had too much. It is also more likely at a virtual party that an obnoxious offender will be heard by everyone in attendance. At a live party, people tend to congregate in small groups, which may help “flatten the curve” of viral behavior. If the pandemic is still going on by the summer of 2021, you may want to consider dispensing with virtual “social gatherings” that involve alcohol.
As far as whether you should forgive Stanley or advise him that his services are no longer required, that would be up to you and Karen. (Karen the CEO, not “Karen” the neighbor.) Perhaps you could consider issuing a final warning so that he’ll understand the gravity of his faux pas, but allow him one more chance to redeem himself?
Dear Miss Mannerly:
In March, we unfortunately had to furlough a number of employees without pay. We gave the furloughed employees instructions on how to file for unemployment, and of course, because the furloughs were due to COVID-19, the employees all qualified for the extra $600-a-week benefit.
Business conditions had improved dramatically by May, and we were able to call back all of the furloughed employees. But one employee I’ll call “Julia” refused to return, saying she wanted to continue drawing the generous unemployment benefit.
The extra $600 is set to expire in our state on July 26. “Julia” called me this week and said she was looking forward to coming back to work — on July 27! We have not filled her position, but we no longer want her back. May we politely decline her offer to return even though the position is still vacant? And if so, what should we tell her? In High Dudgeon
Dear In High Dudgeon: Please be assured that Miss Mannerly shares your dudgeon at Julia’s discourteous rejection of your generous offer to return to work. No, you are not required to reemploy her now. You should tell her, “I am terribly sorry/not sorry, but we have decided that we would prefer a qualified individual who has a work ethic. We wish you all the best in your future endeavors.”
Dear Miss Mannerly:
Please settle an argument I am having (in unfailingly civil and correct fashion) with my supervisor. A group of employees is threatening to walk off the job later this summer because of alleged systemic race discrimination in our company. My supervisor says that, if the employees walk off the job, they can and will be fired, and that they will have no legal recourse. I say they cannot be fired because they are engaging in legally protected activity. Who is right? I Beg to Differ
Dear I Beg to Differ: Miss Mannerly begs to differ with your supervisor. You, on the other hand, are unfailingly correct. Section 7 of the National Labor Relations Act gives employees the right, among other things, “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the National Labor Relations Board website, which Miss Mannerly took the liberty of visiting on your behalf, “Activity is ‘protected’ if it concerns employees’ interests as employees.” Thus, a walkout to protest systemic race discrimination in the workplace would be protected under the NLRA, provided that the employees do not engage in misconduct.
On the other hand, if the walkout were related to discriminatory conditions in the United States generally, it would probably not be protected by the NLRA because it would not “concern[] employees’ interests as employees.”
Dear Miss Mannerly:
My company is covered by the Families First Coronavirus Response Act. The work at our manufacturing plant cannot be done remotely. Approximately half of our employees have school-age children. Our public and private schools closed in March because of coronavirus, but the scheduled last day of school was June 5.
We closed our plant in March, but we were allowed to reopen after Memorial Day. I have the vapors thinking that half of our workforce will ask to take 12 weeks of FFCRA leave during the summer. I’d like to say “No” on the ground that the schools would have been closed as of June 5 anyway and therefore that the school closing is not due to COVID-19. Can we do that? And can men even get the vapors? Inquiring Minds Want to Know
Dear In High Dudgeon: Please be assured that Miss Mannerly shares your dudgeon at Julia’s discourteous rejection of your generous offer to return to work. No, you are not required to reemploy her now. You should tell her, “I am terribly sorry/not sorry, but we have decided that we would prefer a qualified individual who has a work ethic. We wish you all the best in your future endeavors.”
Dear Miss Mannerly:
Please settle an argument I am having (in unfailingly civil and correct fashion) with my supervisor. A group of employees is threatening to walk off the job later this summer because of alleged systemic race discrimination in our company. My supervisor says that, if the employees walk off the job, they can and will be fired, and that they will have no legal recourse. I say they cannot be fired because they are engaging in legally protected activity. Who is right? I Beg to Differ
Dear I Beg to Differ: Miss Mannerly begs to differ with your supervisor. You, on the other hand, are unfailingly correct. Section 7 of the National Labor Relations Act gives employees the right, among other things, “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the National Labor Relations Board website, which Miss Mannerly took the liberty of visiting on your behalf, “Activity is ‘protected’ if it concerns employees’ interests as employees.” Thus, a walkout to protest systemic race discrimination in the workplace would be protected under the NLRA, provided that the employees do not engage in misconduct.
On the other hand, if the walkout were related to discriminatory conditions in the United States generally, it would probably not be protected by the NLRA because it would not “concern[] employees’ interests as employees.”
Dear Miss Mannerly:
My company is covered by the Families First Coronavirus Response Act. The work at our manufacturing plant cannot be done remotely. Approximately half of our employees have school-age children. Our public and private schools closed in March because of coronavirus, but the scheduled last day of school was June 5.
We closed our plant in March, but we were allowed to reopen after Memorial Day. I have the vapors thinking that half of our workforce will ask to take 12 weeks of FFCRA leave during the summer. I’d like to say “No” on the ground that the schools would have been closed as of June 5 anyway and therefore that the school closing is not due to COVID-19. Can we do that? And can men even get the vapors? Inquiring Minds Want to Know
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
