It’s been a while since I’ve picked on an advice columnist for leading readers astray on employment law, but we have one, from the usually-sound Work Advice column by Karla Miller of The Washington Post.
The letter writer complains that her employer is going to start evaluating employees based in part on their participation in company-sponsored “social” functions, “such as picnics and athletic events,” and how much they schmooze with management.
First off, although I wouldn’t favor a policy like this, it doesn’t strike me as outrageously bad, as long as it isn’t taken to extremes. I can see how an employer might want to encourage, or even insist upon, some level of interaction among employees, and between employees and their managers.
But for the sake of argument, let’s say it’s a horrible policy. Stupid, coercive, and counterproductive.
Is it illegal? Nah.
Is there any scenario, no matter how remote, in which an employer could violate the law based on such a policy? Of course. This is America!
HR clients will sometimes call me because a manager wants to do something that is flat-out illegal. The HR client has tried but has been unable to talk the manager out of his terrible, illegal idea. The HR client asks me to send an email laying out the legal risks (including the possibility of a seven-figure jury verdict, or a Google-like OFCCP audit, or whatever terrible consequence we can reasonably expect to ensue). I happily oblige. It usually works, the manager backs off his illegal idea, and everyone lives happily ever after until the next time.
But there is a variation on this scenario. Sometimes the HR client will call me, tell me about the manager’s bad idea, and ask me indignantly, “Isn’t that illegal?” I say, “Well, it’s a lousy idea, and I don’t recommend it, but the good news is that it isn’t illegal.” The HR client persists: “But, couldn’t we get sued/have a Google-like OFCCP audit/have another terrible consequence?” I reply, “The chances are slim to none, thank heavens. You aren’t a federal contractor, so the OFCCP doesn’t care what you do, and if your employee sued you, the court would throw out the case.”
Eventually a light bulb clicks on over my head. “Um . . . do you want me to say this is illegal?”
HR client: “Er, ah . . .”
Me: “Do you want a legal reason to tell this manager not to do what he wants to do?”
HR client: “Well, yeah . . .”
Me: “Oh, okay!” And then I send an email explaining the highly-unlikely-but-still-remotely-possible legal risks that could ensue if the manager pursues this misguided policy.
This story has a point, I promise.
Getting back to Ms. Miller’s column, it was obvious that she didn’t like the employer’s policy, and I think she was doing a “Scenario 2” with her letter writer. The employment lawyer Ms. Miller consulted said this:
While this policy might seem harmless and focused on team-building, it could subject the company to potential risk for charges of discrimination” under Title VII of the Civil Rights Act of 1964 . . ..
Ohhhh-kaaay. The lawyer goes on to say,
If attending these events is essential to being considered for promotions or other positive rewards, . . . this policy could have what employment discrimination law calls a “disparate impact” on those who are unable to attend for reasons based on their inclusion in a Title VII-protected class. Examples could include workers with family care duties that prevent them from attending non-workday events, workers with disabilities or medical treatments that preclude participation, or workers of faith whose sabbath periods fall during the scheduled events.
Sure, it could — like the dudes said, “in some universe.” But I seriously doubt that most of the people who dread company “togetherness” have these issues. For the most part, they are just introverts, and company get-togethers aren’t their thing. Introversion is not a legally protected status.
An employer with a policy like this could easily avoid a “discrimination” issue by making exceptions for employees with legally protected reasons for not attending.
(PS – Hey, lawyer — disability accommodation is covered by the Americans with Disabilities Act, not Title VII.)
The other legal nugget in this column has more merit: If you evaluate employees based on whether they attend these events and whether they have schmoozed sufficiently, then arguably the event is mandatory and therefore “work,” and therefore you would have to pay non-exempt employees for their time spent in attendance. And an issue the lawyer missed was workers’ compensation liability if an employee is injured at a mandatory company social event.
Ms. Miller, I still enjoy your column and read it every week. 🙂
To all of you in the path of Hurricane Irma, please stay safe.
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.