As a business owner, you have to balance your vision for your business with handling employees. You may want employees to behave in certain ways to further your vision. But you also want to refrain from exercising too much control over their behavior for fear of alienating them and, perhaps worse, violating the law. Here are some aspects of control you may want to think about.
Discriminating on the basis of appearance
The federal law bars employers from discriminating on the basis of religion, national origin, race, color, or sex. There are also bans on discrimination based on age, sexual orientation, marital status, disability, and pregnancy and maternity.
The laws in your state may go even further. For example, states are starting to ban discrimination based on height and weight. Michigan permits workers to file actions if they have been discriminated on the basis of height and/or weight. Massachusetts is considering a similar measure this year.
Personal use of cell phones
You’d like employees to be working on business during their time on the job. But it’s reality that employees use their own phones for various personal matters while they’re on the clock. They may be shopping online, playing games, or just surfing the web. What can you do, or should you do anything?
The NLRB weighed in the matter concerning ADT, Inc., a company that is unionized. The company, recognizing that the use of cell phones during business hours was a distraction, had a policy that allowed cell phones to be used only for work-related or critical, quality of life activities (e.g., contacting a babysitter or a doctor). The NLRB said in a memo posted on March 15, 2019, that the company’s policy violated the law because it wasn’t clear that communications regarding union activities were permissible.
So, even if your business isn’t unionized, you may want to think about how to craft a company policy that balances the need of avoiding distractions and optimizing productivity with the concerns and practices of employees. Not an easy thing.
Medical and recreational marijuana
Even though marijuana is a controlled substance under federal law, 34 states and the District of Columbia permit its sale for medical and/or recreational purposes. How does this impact employers in these locations? This is an area of emerging law that you need to monitor.
For example, a court in New Jersey held that an employer was in violation of the state’s Law Against Discrimination when it refused to accommodate an employee suffering from cancer who used medical marijuana outside of the workplace. According to the court applying New Jersey law, testing positive is not an excuse for termination; an employer must determine if an employee is “under the influence” at work in order to legally terminate employment.
Employers are squeezed these days because of a tight job market. It’s tough, especially for small businesses, to find and retain good employees. But owners don’t want employees to run amok. Finding a good balance is critical.