Avoid a seasonal faux pas!
Dear Miss Mannerly:
My office is business casual — until June. Even though we don’t have a lax summer dress code, many of our employees just “assume” they can dress like hooligans. We have all the usual problems – women in skimpy dresses with no undergarments, flip flops (men and women), tank tops (men and women), and other inappropriate attire for a business setting. What prompted me to write you, though, was that yesterday an IT employee came to work wearing this:
I am a female. How can I address this with the employee and avoid being accused of sexual harassment? At My Wits’ End
Dear At My Wits’ End: You poor dear. You might try something like this: “I am so terribly sorry, but your attire is not appropriate for our workplace. Please go home and change into a polo shirt and full-length khaki pants. We look forward to your prompt return because Outlook is slow today.”
Dear Miss Mannerly:
Unfortunately, we are having to terminate an employee next week. We would like to offer her a severance package, but our business has been hurting (which is why she’s being let go). She has four weeks of accrued vacation, so I was planning to tell her that we’ll pay out her vacation in exchange for a separation agreement with a release of claims. What do you think about this as a cost-saving measure? I really do wish we could do more! No Mo Money
Dear No Mo Money: Miss Mannerly’s left eye is beginning to twitch. If your company has a written policy saying that accrued, unused vacation will be forfeited at termination, then your idea might be a good one. But if not, you would in all likelihood be in violation of your state wage-and-hour laws because her accrued, unused vacation would be considered “wages.” You would owe her the vacation payout regardless of whether she signed a separation agreement. (And you would have to pay it at the appropriate time. In some states, that is on her next regular payday, but in California it would have to be paid immediately upon termination.) To get her to sign a separation agreement, you would have to offer her something to which she was not already entitled. Perhaps one day’s pay for each year of her employment?
Dear Miss Mannerly:
I am the mail room clerk in our company. Our CEO invited us all to a “Super Fun Day,” which will be at a local park on the second Saturday in July. After we got our invitations, the office manager asked me to be in charge of grilling the hamburgers and hot dogs for the event. I’ll have to spend the whole day grilling meat for about 200 people. Needless to say, this will not be a “Super Fun Day” for me! I asked the office manager whether I’d get paid for my time, and she said no, because it was “just a picnic,” and the company is paying for all of the food and beer and entertainment. Is she right? Feeling Ripped Off
Dear Feeling Ripped Off: Please get the smelling salts. Miss Mannerly is having the vapors, but for your employer, not for you. As the mail room clerk, you would be non-exempt under the Fair Labor Standards Act. That means you must be paid for all time worked. If you are recruited to prepare food for a company event, then that is “work,” and the FLSA would require that you be paid for the time. If the grilling time puts you in excess of 40 hours for the workweek, then you would also be entitled to overtime pay. Your employer should also peruse your state’s wage and hour laws. Some states, like California, have daily overtime. Miss Mannerly suggests that your office manager ask the CEO to do the grilling — he’s exempt, and would not have to be paid extra.
Dear Miss Mannerly:
I am writing on behalf of my co-worker, Steve, who is in the hospital. While he was playing shortstop for our company softball team, Steve got beaned by a line drive. He was unconscious for two days, but he’s starting to come around. The doctors think he will be all right eventually. My question is about workers’ compensation. Steve’s hospital and doctor bills are going to be awful, and he’s already missed about two weeks of work. He was even in intensive care for part of the time. Since he was playing for the company softball team when he got hurt, would workers’ comp cover his injury? I probably ought to mention that Steve was a minor league baseball player before he came to work for us, which was the main reason the VP of Sales hired him. Steve didn’t want to be on the softball team, but the VP pushed him hard to join. He told Steve that it would be good for his career and would help him get ahead. The implication being that if Steve didn’t “play ball” (haha), there would be negative consequences. So Steve joined the team. He got a big raise about two weeks later. A Good Friend
Dear A Good Friend: If an employee is hurt while engaging in a company-sponsored recreational activity for which participation is voluntary, then the injury is usually not compensable. If the employee is required to participate in the activity, then the injury usually is compensable. The question here would be whether the pressure from the Vice President meant that Steve’s participation in the softball league was not really “voluntary.” Miss Mannerly is not an expert in such matters, but she believes that the Vice President’s promise and implied threat, coupled with the pay increase that Steve received shortly after joining the team, might be enough to make his tragic injury compensable.
Dear Miss Mannerly:
Are you really Robin, and are all of these letters made up? Skeptical
Dear Skeptical: You again? Such an uncouth question! Why are you so skeptical? Why can’t you trust anybody?
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.
