Home Depot employee fired over "politically driven" pin that violated dress-code policy

In yet another real-life reminder of why it’s so important to maintain an employee handbook with crystal-clear workplace policies, a Home Depot employee claims he was fired for expressing his personal beliefs though an American flag button he wore on his apron. The former cashier of the Okeechobee, FL, store says he had the right to wear the “One nation under God, indivisible” button, while his employer argues that he DID NOT – and the reason being the company’s written dress-code policy forbidding it.

Whether you feel the pin and its message was religious, political or just patriotic (and as such, acceptable in the workplace) is a matter of interpretation. And it’s because of this sort of interpretation that employee policies exist.

“The issue is not whether or not we agree with the message on the button," says
Craig Fishel, a Home Depot spokesperson. "That's not our place to say, which is
exactly why we have a blanket policy, which is long-standing and
well-communicated to our associates, that only company-provided pins and badges
can be worn on our aprons."

While the employee’s lawyer is suing Home Depot for religious discrimination, the case probably won’t go very far. As Michael Masinter, a civil rights and employment law professor at NOVA Southeastern University in Fort Lauderdale, explains:

"Because it's a private business, not one that's owned and operated by the
government, it doesn't have to operate under the free speech provisions of the
First Amendment."

He clarifies the matter of religious displays and expression, too, for those who feel Home Depot’s pin-banning action was a form of religious discrimination:

“But we're not talking about religious displays here," he said. "This sounds
more like a political message ... Wearing a button of that sort would not easily
be described as a traditional form of religious expression like wearing a cross
or wearing a yarmulke."

As a private business, Home Depot has a right to protect its image by not promoting different employee opinions via pins and badges - opinions that might offend customers who are as diverse as the employees serving them.

Some important details in this case: The employee was first asked to remove the pin. He refused. He was also offered a company-approved pin that said, “United We Stand,” but he declined.

It would appear that Home Depot did everything right, from an HR standpoint, in this situation. They based their actions on company policy, they confronted the employee first (and hopefully documented the exchange) and when all was said and done, the employee refused to cooperate with policy. Thus, the employee was fired.

What do you think? Do you agree with Home Depot’s actions? Please leave a comment - I’d love to hear your thoughts on the matter!

Home Depot employee fired over "politically driven" pin that violated dress-code policy

More laid-off workers returning to old employers

More laid-off employees are finding new work in their old jobs, according to the latest labor statistics that show almost a fifth of displaced employees return to the company they were laid off from.

About 18% of laid-off workers who found work were rehired by the same employer that issued their pink slip, up 5% from 2005, according to Right Management’s outplacement services. (CNN Money)

"In some instances, organizations are realizing that they may have cut too deep and are bringing people back in consulting roles or for project work," Melvin Scales, senior vice president for global solutions at Right Management, said in a statement.

"Former employees have the organizational knowledge and skills to jump back into roles quickly to get the job done," Scales said.

Scales recommends that employers consider redeploying workers as an alternative to layoffs. "It's a way of leveraging the skills and talents of existing employees and reassigning them to new roles within the organization. It provides an opportunity to retain valued talent, reduce the cost of turnover and leverage knowledge transfers within the company," he said. (CNN Money)

Over the past two years, the U.S. labor market has experienced widespread job cuts. In the first half of this year nearly 3.4 million jobs have been lost, on top of the 3.1 million lost in 2008.

More laid-off workers returning to old employers

Supreme Court limits worker age-bias suits

The Supreme Court handed down a verdict late last week that would give businesses more strength in employee lawsuits alleging age discrimination.

Employees now bear the burden of proving that age was a dominant factor in his or her firing or demotion in order to win a case. Under the Age Discrimination in Employment Act (ADEA), employees have the burden of proving that age was the “but-for” cause of an employer’s adverse decision.

With age-discrimination lawsuits growing at an alarming rate, the 5-4 ruling (Gross v. FBL Financial Services, Inc.) is considered a win for businesses that face age-bias lawsuits. Before last week, workers had to show only that age was a factor in the decision.

"The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age," Justice Clarence Thomas wrote for the majority. He added this legal rule applies "even when a plaintiff has produced some evidence that age was one motivating factor."

Karen Harned, executive director of the National Federation of Independent Business, said the opinion would help companies defend against age-bias claims. "Requiring claimants to show direct evidence that age played a substantial role in the challenged employment decision is the appropriate and fair standard," Ms. Harned said. (Wall Street Journal)

Since the U.S. economy began to slide downward, age discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have increased by 29%, a jump from 19,100 in 2007 to more than 24,500 in 2008. (Washington Times)

This case involved a lawsuit brought against FBL Financial Group by Jack Gross, under the ADEA. Gross claimed that FBL violated the ADEA when he was demoted and some of his prior responsibilities were given to a younger worker.

Supreme Court limits worker age-bias suits

Fear, lack of paid time off drive sick employees to work

Despite daily news coverage of the swine flu outbreak and reports of flu-related deaths, U.S. workers continue to show up for work sick, according to a recent Monster.com poll.

The nationwide poll revealed that 71% of almost 12,000 U.S. workers who responded between May 11 and May 18, 2009, said they report to work even when feeling ill.

“Of those who go to work sick, 33 percent fear losing their job if they take a sick day, while 38 percent admit their workload is too busy to take a day off from work even when they are ill,” said Norma Gaffin, director of career content, Monster.com, in a press release.

When asked “Do you go into work sick?” respondents answered:

• Yes, work is too busy for me to miss a day: 38%
• Yes, in this economy, I’m afraid I’ll lose my job: 33%
• No, I work from home if I’m sick: 10%
• No, I rest up to get better: 19%

Even if they wanted to, many workers can’t stay home when they’re sick. An estimated 57 million working Americans have no paid sick days. For these workers, staying home from work means losing pay or possibly losing their job.

"The problem has really come into sharp relief the past few days," said Debra Ness, president of the National Partnership for Women and Families, which has long pushed for paid sick leave. "Many people don't even realize that almost half the private sector — 48 percent — has no sick days, not even a single one."

"We have officials telling people to stay home when they're sick," she added. "Well, guess what? That can be the beginning of economic disaster for many, especially in this economy."

A 2008 study on sick leave found that 68% of workers without paid sick days had gone to work with a contagious illness like the flu or viral infection. Additionally, one in six workers reported that they or a family member had been fired, suspended, punished or threatened with firing after taking time off to care for themselves or a family member, according to the 2008 study by the University of Chicago's National Opinion Research Center.

Currently, the U.S. is the only country out of the top 20 world economic powers with no federally mandated sick days. But that may be about to change.

On May 18, 2009, Sen. Edward M. Kennedy, D-Mass., and Rosa DeLauro, D-Conn., reintroduced the Healthy Families Act (H.R. 2460), which would let workers earn up to seven paid sick days a year. Those paid sick days could be used to care for themselves or a sick family member.

“As Congress works hard to pass quality, affordable healthcare for every American, they must make sure workers are able to do the things necessary to keep themselves and their families healthy. Paid sick days benefit both workers and employers, as there is substantial evidence that it improves productivity and the bottom line,” said DeLauro in her address to the House of Representatives last week.

Our legal team will continue to watch the Healthy Families Act and how the legislation may affect your business. Check back regularly for the most up-to-date information.

Do you still show up to work when sick? Why? Do you think the U.S. should have federally mandated paid sick leave? Leave a comment and let us know what you think.

Fear, lack of paid time off drive sick employees to work

Domino’s employees fired, charged after “gross” video goes viral

On Monday, two Domino's Pizza employees posted videos on the Internet that resulted in their current unemployment, and also managed to create a disastrous PR storm for their former employer.

The two Domino's Pizza employees posted videos on the Internet showing themselves violating various health-code standards while preparing food for delivery. Since their video became a hit on YouTube, the employees have been charged with felonies for delivering prohibited foods.

A statement on the company’s corporate website apologizes for the unacceptable actions of their former employees and asks that customers continue their support, despite this embarrassment.

“The opportunities and freedom of the Internet is wonderful,” the statement reads. “But it also comes with the risk of anyone with a camera and an Internet link to cause a lot of damage, as in this case, where a couple of individuals suddenly overshadow the hard work performed by the 125,000 men and women working for Domino’s across the nation and in 60 countries around the world.” (Workforce Management)

Company President Patrick Doyle has also posted a video of his own in response to the “gross” video created by his former employees. Domino’s spokesman Tim McIntyre said the company is looking into what can be done to prevent anything like this from happening in the future, but says there’s only so much the Domino’s can do.

"You can be the safest driver, you know," McIntyre said. "But there's going to be that Friday night someone's drunk and comes from out of nowhere. You can do the best you can, but there's going to be the equivalent of that drunk driver that hits the innocent victim." (Advertising Age)

The food safety issues involved in this case can be kept under control with a combination of training, policy enforcement and complying with regular food safety inspections. But how can a company control what employees are saying about them online?

It’s impossible for a company to fully control what an employee is going to say or do on the Internet in regards to their employer. What companies can do is set standards and clear policies outlining responsible online behavior within the office and when an employee discusses the company on their own time.

Major companies including the BBC, Sun Microsystems and IBM have written social media guidelines for employees to help manage the risk that accompanies these online conversations. Each of these companies has a set of guidelines clearly posted on its website and serve as great examples when developing your own social media policies.

• BBC use of social networking and other third party websites (.pdf)
• Sun Guidelines on Public Disclosure
• IBM Social Computing Guidelines

Policies will differ from company to company, but it’s important to have a clear set of standards that everyone in the organization can follow. Remember to run your social media policy through the legal department before distributing anything to employees. Finish the process with employee training that explains the company’s policy and how to act responsibly when talking about their employer online.

Like Domino’s spokesman said, “the opportunities and freedom of the Internet is wonderful,” but some employees may need help understanding the responsibility that comes along with talking about their employer online.

Do you think having a social media policy could have helped Domino's in the company's current situation? Does your organization train employees on responsible Internet use? Leave a comment and let us know.

Domino’s employees fired, charged after “gross” video goes viral

Can an employer fire an employee for being too buff?

During a recent conversation with a friend in the HR industry, an interesting story came up about a situation at a past employer. To keep it simple, we’ll call our friendly HR-pro “Jane.” (Note: Names, dates and company information have all been omitted to protect the innocent.)

Years ago, Jane was recruiting physicians for the medical clinic she worked at when she thought she came across the perfect doctor to fill an open position. The applicant filled all the necessary qualifications, was well-educated, well-spoken, energetic and self-motivated. Jane offered the job to the doctor the day after the interview. He accepted and was hired.

After about a week on the job, Jane unexpectedly found the doctor showing off to some of the medical assistants in the employee lounge. The doctor, dressed in scrub pants and an undershirt, was having the medical assistants count off how many one-handed push ups he could complete in one minute. After the push-up routine, he proudly took off his shirt and asked for volunteers to hang on his biceps as part of another strength test.

Jane fired Dr. Muscle a week later and some of the female assistants seemed to be rather upset. However, Jane thought the office was better off without someone revealing their muscles and working out when they should be focused on their job.

While Jane may think she did her office a favor by getting rid of Dr. Muscle, could she have potentially put her clinic in serious legal trouble for the firing? A list of questions ran through my brain:

Can an employer fire an employee for being too buff? Could that warrant a sexual discrimination claim? Behavior is one thing, but what about just looking too hot and that being a distraction to the other employees? Is there a discrimination lawsuit in there? Is it the same for a good looking man or a good looking woman?

According the G.Neil legal team, unless you are a government employer or operate under a contract, your company is most likely an at-will employer. At-will simply means the employment relationship may be terminated at any time for any reason by either the employer or the employee. The only “catch” is that the “any reason” really means any reason except for an illegal one. In other words, you can terminate an employee because of absenteeism, poor work performance or simply because he/she isn’t a good fit for your company. However, you cannot fire someone for being Asian, a female, too old, etc. Firing someone because of race, color, national origin, religion, age, gender, disability or other legally protected characteristic is prohibited by law and may result in a claim of wrongful discharge.

Although there is no law that prohibits discrimination based on personal appearance, appearance-based litigation arises under several discrimination laws. These days employees and former employees are bringing lawsuits, which are in essence appearance-based discrimination claims, alleging violations of the ADA, ADEA, Title VII, and state fair employment statutes. By tying an unprotected physical characteristic to race, sex, national origin, religion, or disability, plaintiffs are able to get their appearance-based complaints in front of a judge or jury.

Can a particular employee be asked/required to cover up more than other employees because of appearance (good or bad)? Possible situations … large breasts, ugly scars, big muscles, deformities, etc. Is there a level of distraction that could justify such a request as part of a legitimate business need on the part of the employer?

Employers generally have the right to establish dress code and appearance standards for appropriate business reasons. Common business reasons include sustaining a positive public image, promoting productivity, and complying with health and safety standards. Legal claims can arise when an employer enforces dress code or appearance standards that are not business-related or applied uniformly, or when the standards affect one group of individuals more than another, in violation of federal or state anti-discrimination laws.

In some cases, a company might be required to make an exception to its established dress code or appearance standards for legal reasons. For example, employers are required to reasonably accommodate an employee’s religious beliefs and employees generally should be permitted to wear head coverings, religious insignia and other tokens of faith. Religious accommodations are not required, however, if they present a safety risk, public health concern, or other undue hardship on the employer. For example, employees may be prohibited from wearing long hair or flowing garments near machinery, or they may be required to wear hats or ponytails in a food service establishment.

We know that firing an employee is never an easy thing to do, but knowing how to handle each stage of the process can make it go much smoother. The ComplyRight How to Fire Anyone: Your Guide to Fair and Legal Terminations will give you a clear explanation of the legal do’s and don’ts when it comes to firing employees.

Can an employer fire an employee for being too buff? Leave a comment and let us know what you think.

Can an employer fire an employee for being too buff?

Build employee morale during good times and bad

Everyday, more and more industries are facing layoffs and major downsizing. Paired with a looming recession, employees are more stressed than ever.

Keeping employee morale high during times like these can be tough, but those at Harvard Business Online say good leaders should be able to inspire no matter what.

“Good morale does not require people to be happy.” Instead, the definition of good morale is that individuals’ emotions contribute to the unit as a whole in order to achieve goals. A leader’s job is building team focus and dedication, according to the author.

This can be achieved if you hold on to four truths:

Employee efforts contribute to making someone else’s life better. People work their hardest when they know they are making a difference in another person’s life. Show your employees the good work they’re doing with examples. Something as small as a positive customer review can make an employee feel proud of what they do.

The company depends on their ideas. After downsizing, it is usually a company’s top performers who are left to keep the business moving. Let these employees know that their ideas are crucial to the company’s success and be open to listening to new ideas.

Bad times will end soon. Most of the time, employee layoffs happen before a company is in financial trouble, and used as a means to cut costs before profits plummet. Let your employees know that the downsizing is only temporary and when you foresee an end to the job cuts.

Good times are just around the corner. During a downsizing, employees may take on roles and responsibilities they may not have had under any other circumstances. When good times roll back around, managers will notice how these employees have stepped up and possible promotions may follow.

Build employee morale during good times and bad

Senate passes genetic nondiscrimination bill

Anti-discrimination legislation is on the move that would protect employees’ jobs and health insurance coverage against decisions made on the basis of genetic information.

On April 24, 2008, the U.S. Senate unanimously approved the Genetic Information Nondiscrimination Act, or GINA.

GINA will:

• prohibit the use of genetic information to deny employment or insurance coverage,
• ensure genetic test results are kept private,
• and prevent insurance companies from making eligibility or premium decisions based on genetic information.

The act will now go back to the House of Representatives for final approval. It is then on to President Bush’s desk, who is expected to sign the bill as early as next week. The bill's effective date will be 18 months after the President signs.

Check back often for updates on the status of GINA and whether there will be posting changes once the bill is signed into law.

Read the full Associated Press article.

Senate passes genetic nondiscrimination bill

Workplace smoking policies: When employees lie

Whirlpool suspended 39 workers for lying on insurance paperwork about their smoking habits, as reported by the Chicago Tribune.

The suspended employees all claimed they do not use tobacco products, but were caught in the act on the Evansville, Indiana, factory property smoking or chewing tobacco. Some accused workers may even lose their jobs because of the lies.

Whirlpool uses a financial incentive program to encourage workers and their families to not smoke. Workers at the Evansville factory who smoke are charged an extra $500 in annual health insurance premiums.

Whirlpool’s actions show one difficulty companies encounter when enforcing wellness programs based on the honor system.

"Employers have been using the honor system ever since wellness programs started, and you have to be a little naive to think that people are going to admit they smoke when they know they're going to be penalized."

Enforcing smoke-free workplace policies can be tough, especially if employees are untruthful about their smoking habits.

With rising healthcare costs and the dangers of second-hand smoke, some companies are completely snuffing out smoking on company property.

“No Smokers in the Workplace: The New Controversy,” from G.Neil’s News & Info section, examines how some workers are fighting back against smoke-free policies with legal action. Some workers’ rights groups claim the policies violate one’s right of free expression.

State no-smoking laws can stir up confusion when determining if your company should enact a smoke-free policy. For help on how to sort through related legal issues, read the full article at G.Neil.com.

Workplace smoking policies: When employees lie

Confronting Poor Performers

Bob, your accounting manager, comes rushing into your office to tell you he's got to fire Joe, the accounts receivable clerk, immediately. Apparently, Joe can't get anything right and if something isn't done, the whole company is going to go down the drain.

UGH!! Sound familiar?

After presenting Bob with the Oscar for "Best Actor in a Workplace Drama," you ask him if he's written up Joe for any specific incidences, or if he's shared Joe's performance issues in his last annual review. Bob gives you a blank stare and tells you he's got too much paperwork to handle as it is. Translation: No. And when you pull Joe's previous performance appraisals from your files, you get every indication that Joe's work has been nothing short of glowing.

Can you terminate Joe? Yes. Should you terminate Joe? Maybe. Is it a good idea to terminate Joe today? A resounding NO.

I've seen it time and time again — managers who are afraid they won't be liked if they give any negative feedback. But if you don't tell employees what's wrong, how can they do anything to improve? I've found that most employees would rather get honest feedback — for the benefit of their own career development — than be left in the dark. Plus, you want to inform them of the next steps should they not improve, so they're not in complete shock if/when you escort them out the door.

Here's more inspiration for you: This could save your company from a lawsuit if Joe decides to sue for discrimination. Although most states let you fire employees "at-will" with no reason or paperwork, it's not a smart move. Joe may claim Bob discriminated against him — even if he knows it's not true. And without the proper paperwork (counseling or warning forms and/or performance reviews with specific expectations), your company may not have any proof to defend itself in court.

My suggestion? Do yourself, your company AND your employees a big favor and deal with the performance issues as they occur — and document, document, document. It shows you are a great manager who not only cares about your company, but also your employees.

- Maurice Rosenberg, Human Resources Manager

Confronting Poor Performers