By
Julie Crane,
Rita
Risser and
Ann
Kiernan, Attorneys at law
We at Fair Measures grieve with those who have lost family,
friends and coworkers, and join in the praise for the countless
acts of heroism. We are also aware that these events have
brought up many questions for employers and employees.
We offer answers to some of these questions below.
What are the Rights
of Reservists Called for Duty?
How Should Layoffs
be Implemented?
Are There Special
Rules for Laying Off H-1B Visa Workers?
What are the Rights
of Muslim and Arab Employees?
Do Employees Have
the Right to Express Unpopular Political Views?
What Are the Rights
of Reservists Called for Duty?
The Pentagon has said it expects to call up as many as
47,500 members of the Reserves and National Guard to active
duty. Managers should review company policies and be aware
of their responsibilities towards these employees.
The Uniformed Services Employment and Re-Employment Rights
Act (USERRA) protects reservists from discrimination of
any kind that relates, even in part, to the employee's
military service. If called to duty, reservists must provide
their employers advance notice of their orders, either
orally or in writing, unless precluded by military necessity.
While employers can ask commanders to temporarily defer
employees for later duty on a case-by-case basis, the final
decision rests with military authorities.
Employers must promptly reinstate reservists once their
tour of duty is complete. Time limits for reservists to
return to work depend on the duration of the orders and
range from 8 hours to 90 days after completion of military
duty.
The National Committee for Employer Support of the Guard
and Reserve (ESGR) was created to serve as a liaison between
reserve members and their civilian employers. Employers
can find answers to their specific questions by contacting
the ESGR Ombudsmen Services at (800) 336-4590, or at the
National Committee for Employer Support of the Guard and
Reserve.
How Should Layoffs
be Implemented?
Amidst all the turmoil, it is important to remember that
layoffs should be done in a principled way, not only to
avoid lawsuits, but also because it is important at this
time to treat everyone with deep respect.
We have compiled a Layoff Guide for Employers that is
available here. It includes
legal background information, a step-by-step guide, FAQs,
and forms required under the WARN Act. Half of the money
paid for this Guide will be donated by Fair Measures to
the American Red Cross.
At a minimum, when conducting a layoff, an employer should
- Follow all company policies,
- Have a legitimate business reason for picking individuals
for layoff (such as seniority, performance, skill set,
flexibility, or other economic justification),
- Document your decision-making process with objective,
verifiable facts,
- Analyze your initial lay off list to see if your decisions
are having an uneven impact on the basis of age, race,
gender, etc. If so, contact your Human Resources or Legal
advisor,
- Have the final paycheck ready, including accrued vacation,
bonuses, overtime, or commissions due,
- Give notice of continuation of health benefits under
COBRA, and
- Give written notice under the WARN Act.
The WARN Act does not require 60 days notice in cases of
layoffs due to ?unforeseeable business circumstances,? but
it does require that written notices be given to employees,
any Union affected, the State unemployment office and local
governmental officials. (Sample notices are provided in the
Layoff
Guide)
Note for employees: if you think you have been unfairly
laid off, find out your rights with our Wrongful
Termination Checklist.
Are There Special
Rules for Laying Off H-1B Visa Workers?
The American Competitiveness in the Twenty-First Century
Act of 2000 prohibits companies from laying off U.S. workers
within 90 days of hiring an H-1B visa worker in the same
job classification. After that, the law is silent on what
an employer should do in the case of a general layoff.
Employers should not use visa status as a reason to pick
someone for layoff. However, the H-1B regulations make
clear that these employees are temporary workers. An employer
usually should lay off temporary workers before laying
off regular employees.
The employer also can use other objective criteria and
apply it to H-1B and U.S. workers alike.
If H-1B visa workers are laid off, employers have three
important duties
- offer to pay the air fare of the workers back to their
home countries, and
- give immediate notice to the U.S. Immigration and
Naturalization Service of the termination of employment,
and
- don?t discriminate in severance or other termination
benefits.
The legal requirement to offer to pay air fare to the home
country is very specific, and applies whether the company
originally recruited the employees from abroad, or hired
them within the U.S.
The requirement is also very narrow. A company is only
required to pay one-way air fares for the workers, not
their dependents, nor any additional shipping costs.
Since many non-immigrants in this situation elect not
to return to their home countries, companies can inform
them of their right to obtain transportation through the
company?s travel agency, within 30 days of termination.
The employer is then relieved of the obligation, and in
most cases will not be out the money.
What are the Rights
of Muslim and Arab Employees?
There have been many reports that Muslims, persons of
Arab descent and those who ?look? Middle Eastern are being
harassed and intimidated. The U.S. Equal Employment Opportunity
Commission (EEOC), which enforces federal anti-discrimination
law, is paying special attention to these claims. Cari
M. Dominguez, Chair of the EEOC, called on all employers
and employees across the country to promote tolerance and
guard against unlawful workplace discrimination.
A manager has a unique role in preventing harassment
and discrimination in the workplace. Whether it be a discriminatory
comment, shunning, or worse, a manager should stop the
behavior. In addition, managers can do the following
- Remind employees of policies against harassment based
on religion, ethnicity, and national origin,
- Communicate procedures for addressing workplace discrimination
and harassment,
- Urge employees to report any improper conduct,
- Provide training and counseling, as appropriate, and
- Be a model of good will towards all employees.
For more information, the EEOC has developed an information
sheet, which is available by contacting EEOC's Publications
Distribution Center at (800) 669-3362 voice and (800) 800-3302
TTY and on the
EEOC's Web site.
For further in-depth information on harassment and discrimination
law, click here.
Do Employees Have
the Right to Express Unpopular Political Views?
As this crisis continues, people are going to express
their opinions about what happened and what is the appropriate
response. Employees do not have the right to discuss non-work
related issues at work. Most employers allow it, but it?s
important to realize that it is a privilege that the employer
can revoke at any time. After all, the purpose of the workers
is to work.
If management allows discussion in the workplace, employees
must be respectful and tolerant of different opinions.
If these discussions disrupt the office, undermine a manager's
authority, or impair working relationships, the employer
should stop the discussion.
In most states, employees are protected against discrimination,
harassment or termination as a result of expressing their
political views. They are protected by general privacy
laws, specific political speech statutes, or the laws prohibiting
discrimination against employees who engage in lawful activity.
Public sector employees have more freedom of speech than
employees in private industry. For example, when Ronald
Reagan was shot, an employee of a Texas sheriff's department
said, "If they go for him again, I hope they get him." She
was fired, but the U.S. Supreme Court held that was unconstitutional
because she was speaking on a matter of public concern.
Rankin v. McPherson, 107 S.Ct. 2891 (1987).
Do not take any adverse employment action against employees
because of their political opinions. If employees have
been told to get back to work, and instead continue the
discussion, they can be reprimanded, disciplined or ultimately
terminated for insubordination.
In Closing
At this time in our nation?s history, it is most important
to remember the principles upon which our country is founded.
The U.S. stands for the rule of law, justice, fairness,
tolerance, and respect. As managers, we have the ability
to bring those values to life in our daily world of work.
