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Workplace Q&A: Part 15

Q: Can I stop a co-worker from spreading lies about me?

“I attended a work-related event at a bar. Unfortunately, I had too much to drink. I didn’t do anything terrible, but I did some silly things. Now one of my co-workers is going around telling everyone at work that I can’t hold my liquor. What’s worse, he has been embellishing his account of my silly behavior in order to make me look really bad. He keeps spreading more and more lies about me. Can I do anything to stop him?”

A: Yes.

Your co-worker’s behavior is a form of bullying. You need to bring his conduct to the attention of management in factual, unemotional way. Request that the co-worker be instructed to stop his objectionable behavior. It’s best to have a face-to-face conversation with your manager. But if that’s difficult, then write down all the facts along with your requested remedy, and send your manager a letter or an email.

Any form of gossip, teasing, or sharing of personal information by a co-worker is a form of bullying, even if it would be considered innocent in another context. Managers are not the only individuals who can engage in workplace bullying. Abuse on the part of a co-worker can be just as destructive to your career.

Workplace-Q-and-A

Q. Can I cross out the non-solicitation clause in my severance agreement?

“My job was eliminated and I was given a release to sign in order to receive severance pay. The release contained a “non-solicitation of employees” clause that covered a period of six months after I leave the company. I’m planning to start my own business, and I’d like to ask some of my subordinates to join my new venture. My new business would be much smaller and serve only the local market, but technically, it would still be a competitor of my former company. Can I still get severance pay if I sign the agreement but simply cross out the non-solicitation clause?”

A. Probably not.

It is highly unlikely that the company will accept a release that contains a section you’ve crossed out. At the same time, don’t try to hide behind the fact that your new company will be smaller or only a local competitor. Your former company may very well sue you in an attempt to stop your solicitation of employees or even shut down your business.

You have two alternatives. The best option is simply to wait out the six months before you solicit any of your former subordinates. The second alternative is to approach someone at the company who would have authority to waive the provision. If you’re really not a competitive threat and you aren’t proposing the poaching of employees who are critical to your former employer’s business, the company may very well agree to some sort of compromise.

It is quite common for employers to insert standard non-compete and non-solicitation clauses in their offer letters and severance agreements. However, when faced with specific requests for exceptions, they are often willing to be flexible. For example, your former employer may allow you to solicit its employees as long as you give it three months notice to hire replacements.

Q. Can my manager refuse my request to replace my four-month maternity leave with a four-month paid vacation?

“I am pregnant with my third child. I had easy pregnancies and deliveries with my first two children, and now I have the help of a full-time nanny. I’m really not interested in taking the four-month maternity leave that my company offers. So I asked my manager if could forego the maternity leave and instead take a four-month vacation next year. After all, I had it coming to me. My manager said No. Can he really get away with this?”

A. Yes.

Your manager is within his rights. Technically, you do not have a four-month vacation “coming to you.” Maternity leave is a specific form of paid absence that is justified by the birth of a child. It is not bankable time to be used for any purpose whenever you want.

One option is to take a vacation trip during your maternity leave, that is, during the four months after the birth of your child. Maternity leave does not require you to sit at home for four months.

If you don’t take your maternity leave, your employer’s rules on paid vacation time will still apply. If you are entitled to one month of paid vacation, another option might be to ask your manager to extend your paid vacation for six or eight weeks. If that doesn’t work, then perhaps he’ll accept an unpaid extension.

 

 

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently an executive coach and CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

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Workplace Q&A: Part 14

Q: Can a company reject my job application based on my contributions to social media?

“I applied for a job as a product manager. After several interviews, I was pretty sure that I’d get a job offer. Instead, I got a call from the recruiter with the bad news that the company decided not to hire me. He said only that the company had reviewed my presence on various social media sites. He didn’t say whether the company found any particular post, comment, “share” or “like” to be problematic. Is it legal for a company to base a job rejection on information in social media?”

A: It depends.

If the company became aware of your sexual orientation or religion through its review of your contributions to social media, it could not base a job rejection on either of these criteria.

However, if the company saw pictures of your drinking, partying or engaging in minor vandalism, it could consider these things in your hiring decision. If your social media trail showed evidence of homophobia, sexual harassment, racism or violence, the company could reject you because of concerns about these attitudes.

In any event, the company is not obligated to ask you in advance about your blogs, posts, comments, photos and likes. Nor does the company have to inform you what social media contributions it reviewed or why certain contributions caused concern.

Only you know what your social media presence reveals. You would be well advised to make every effort to remove anything that is objectionable. If you find nothing that is patently objectionable, then try removing anything that is even mildly offensive. Of course, this could prove difficult, as you may have made appearances on sites that you don’t control.

Once you’ve done your best to clean up your social media trail, you could write the company a respectful letter emphasizing your strong points and apologizing for any inadvertent misunderstanding. Perhaps it’s a long shot, but the company might take another look at you. In any event, you’ve dealt with a problem that could hamper your ability to land a future job.

Workplace-Q-and-A

Q: My manager is totally disorganized. What can I do?

“I work for a very talented manager who is extremely disorganized. He works on many projects at once and gets wonderful results, but he cannot remember what he told me to do or how to do it. I end up spending a lot of time doing things that he has already done himself or doesn’t need done any more. What can I do?”

A: Try daily check-ins.

You could try daily check-ins, either in writing or orally. At the start of the day, state what you plan to do, and then ask him if that’s how he wants you to spend your time. At the end of the day, check in again to see if that’s what he wanted. The key is to be in touch with your manager often enough that he’s aware of what you’re doing and he can articulate what he needs.

The check-in strategy has to be carried out delicately. Your boss may be completely unaware that his instructions are unclear or contradictory, but you cannot directly accuse him of these deficiencies. Make sure that your repeated follow-ups do not create the appearance of insubordination, inability to work independently, or incompetence.

If you still cannot get your manager to give you clear, consistent instructions, you should take regular notes about what he told you to do and what you did. At the very least, you’ll have a defense if you’re later accused of ignoring his instructions.

Q: My employer rejected my proposal for an employee group for video game enthusiasts. Isn’t that discriminatory?

“My employer sponsors diversity groups for working mothers, Christian Bible study, disabled employees, African American employees, Asian employees and Latino employees. Every month the company provides each group with a room, free coffee and cookies. I asked for permission to start an employee group for video game enthusiasts. My request was denied. Isn’t that discriminatory?”

A: No.

A company can make provisions for employees to provide mutual support. As a general rule, these groups support employees who constitute a minority in the workplace or who have faced some common difficulty. The company has no obligation to provide space and refreshments for all employees or for any reason. Different companies draw the line at different points. It wouldn’t be improper for your company to accept your proposal for a group of video game enthusiasts, but it is not required to do so.

 

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q&A: Part 13

Q: Do I have to tell my manager about my upcoming job interview at a competing company?

“Next week, I have a job interview with a competing company. Do I need to tell my manager where I’m going?”

A: No.

That said, you do need to tell your manager that you’ll be out of the office on a vacation day or personal day, depending on the policy of your company. If your company routinely lets people leave early for personal business, you need only notify your manager you’ll be out of the office.

In fact, you should not tell your manager about even the possibility of another job until you have a firm offer in writing.

You should also avoid showing up at work dressed in “interview” attire. Signaling that you’re on your way out before you actually receive another job offer can seriously impact your compensation, bonus and opportunities for promotion if the new job prospect later falls through.

Workplace-Q-and-A

Q: Can my company force me to accept a promotion?

“I was offered a promotion to a management position. I wasn’t told that I had to take the offer. But a senior manager made it perfectly clear that the promotion was a big deal. From his point of view, why would anyone in his right mind turn it down?

“Well, I have been a manager, and I hated it. I like the job I have now. I am good at it. And I don’t get stressed out. Can my company force me to accept the promotion?”

A: No.

You should certainly not take a job that you don’t want or that won’t be a good fit for you. When you decline the promotion, you should explain that you have been a manager, and that you find your current position much more rewarding. You also should stress that you can contribute much more to the company in your current role.

In all likelihood, the company will accept your decision and forget about it. Still, you can’t discount the possibility that it will leave a bad aftertaste. Unfortunately, there is a strong bias in our culture about the desirability of “moving up.” Senior management may not look favorably on your future requests for salary increases or new assignments.

One possible solution is to explore a lateral job move. That way, you can advance your career and still earn the company’s good will, especially if you’re moving to a position that the company has had difficulty filling.

Q: Do I have to attend the upcoming company party to celebrate a new client?

“My company has planned an extravagant party to celebrate the acquisition of an important new client. I really hate parties. Do I have to go?”

A: It depends.

If you work for a large company, the party may be so big that your absence will go unnoticed. The company is unlikely to insist that attendance at such a huge party is required for you to perform your job satisfactorily.

On the other hand, if you work for a small company or if the new client will be attending the event, your company could very well argue that attendance is an essential part of your job. In that case, you’ll have to show up.

In any case, it’s not a bad idea to learn to tolerate these sorts of events. Celebrations are common in just about every work environment, and many companies view them not only as job related events, but also a form of team building.

There are numerous techniques for making company social gatherings tolerable, but that’s a topic for another post.

 

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q&A: Part 12

Q: Can I be switched from a salary to an hourly wage?

“For the past two years, I have been paid a salary. My job has not changed at all. Yet last week my manager told me that I would be paid an hourly wage from now on. The good news, he said, is that I would now be eligible for overtime. But I did the math. My new hourly wage multiplied by 40 will be less than my old weekly salary. Can the company do this?”

A: Yes.

But there may be more to the story. You need to find out why the company is making the change. Quite possibly the company was informed that you are a “non-exempt employee,” as defined by the Fair Labor Standards Act. If so, then you should have been paid an hourly wage plus overtime for all hours worked over 40 each week. If you in fact worked more than 40 hours in any workweek, then the company owes you back wages. You can review your records, make a determination of the shortfall and approach Human Resources with a request for back pay. If you’re the only employee in this situation and the company simply made an honest error, you might indeed get the additional pay. But if you’re one of many, don’t count on it. Paying you what you’re due will set the company up for paying your co-workers, too. In that case, you’ll have to decide whether it’s worth complaining to the Department of Labor or just dropping the matter altogether.

Q: Do I have a right to find out why my wife was terminated?

“My wife was fired form her job last month. She wasn’t given a clear explanation of the reason for the termination. I tried to call her manager, but I was told the manager would not speak to me. Do I have any rights to get the information?”

A: No.

However, you can help your wife craft a letter to her manager or the head of the company asking for more information. You can also help her request her personnel records. If she hasn’t signed a release, you can help her file a complaint with the state anti-discrimination agency. In responding to such a complaint, the company would be required to give a written explanation as to why your wife was terminated.

Workplace-Q-and-A

Q: Can I bring a lawyer when HR grills me?

“A few weeks ago, I was called down to Human Resources and questioned about an apparent theft of proprietary software. I asked the HR rep if I could have a lawyer, but I was told no. Can I have a lawyer?”

A: No.

It is legal to refuse to allow you to have legal representation. But it still may be unfair and unwise.

Employees are obligated to answer questions about workplace events. There is no law that requires the employer to let them to have a lawyer during questioning about such events.

However, when an investigation involves potential criminal activity or serious misconduct, it is nonetheless fair and appropriate to allow an employee to have an attorney present during an interview. The attorney can be instructed to remain silent so that the company’s representatives can hear directly from the employee. Still, the attorney would be in a position to advise the employee before and after the interview.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q&A: Part 11

Q: I just got a final written warning. What should I do?

“I was just given a final written warning. I was told that my manager received customer complaints about my service. What should I do?”

A: Here are the steps you should take.

You won’t be able to solve the problem unless you know exactly what the problem is. First, you should ask for copies of the customer complaints if you don’t already have them. You will then need to go over each complaint, identifying the precise source of each customer concern and formulating a plan to address that concern. You should advise your manager of any customer concerns that are beyond your control.

Make sure you know how much time you have to remedy each problem that you’ve identified. If the warning doesn’t provide a timetable, then work with your manager to set a deadline for each problem that needs to be resolved. During this time period, you should have regular, brief check-ins with your manager – either orally or in writing – to make sure you are on the right track.

Q: Can my manager favor an attractive female co-worker?

“I’m part of a five-person team. We all work for one manager. The manager overtly favors one team member – a young, attractive woman. From the start, he gave her the best projects with the most learning opportunities and the highest visibility. I just found out that her annual bonus was more than double that of any other team member. Can my manager do this?”

A: No.

Under the federal government’s sexual harassment guidelines, a manager cannot disadvantage other team members in order to favor a more attractive female employee. The problem is that your manager will claim that his favorite employee is in fact more competent and deserves the additional compensation. After all, he’ll claim, she got the better assignments.

I suggest that you approach your manager about establishing more transparency in work assignments. If you can’t get your manager to divide the work fairly, you may have to ask someone higher up to oversee project assignments. Once the work is assigned in a more equitable and transparent manner, it will be easier to show that the disparity in bonuses is unfair.

Workplace-Q-and-A

Q: Can my manager make me see the Employee Assistance Program counselor?

“Three months ago, my sister died after a long and painful illness. Just recently, my father died suddenly from a heart attack. When my manager found out, he told me that I had to go see the Employee Assistance Program counselor. Can he make me do this?”

A: No.

Employment Assistance Program (EAP) counseling is voluntary. It is a resource to help employees, but seeing an EAP counselor cannot be a condition of keeping your job.

Perhaps your manager has noticed some problems with your job performance and is concerned that further deterioration may put your job at risk. You should definitely have a conversation with him to make sure he doesn’t perceive that you have any performance issues. If he does, you should come up with a solution that is independent of EAP counseling.

Perhaps your manager cannot believe that anyone who has suffered two major losses in such a short time could still be able to perform well on the job. Again, it would entirely appropriate to have a conversation with your manger to assure him that, while times are difficult, you’re still able and willing to do your work.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q&A: Part 10

Q: Can I be fired because I’m against abortion?

“I am pro-life and opposed to abortion. I was just called into my manager’s office and summarily fired. I pointed out that I couldn’t be terminated for thoughts or feelings that had nothing to do with my job. My manager responded that this was not the reason for my termination. He said that I was fired because I was trying to convince others that abortion was wrong. Can I really be fired for that?”

A: It depends.

You have the right to think or feel whatever you want. But your fellow employees also have the right to work without being aggressively confronted with others’ viewpoints. They are, after all, captive audiences. So, it’s one thing if you happened to express your opinion in a conversation with your co-workers. But if they complained that you persistently harassed them with anti-abortion rants, then your employer could indeed terminate you.

Q: Can I bring my 11-year-old to work?

“I don’t have child care on those occasional days when my 11-year-old daughter’s school closes for teacher conferences or bad weather. On one of those days, I asked my manager if I could bring my daughter to work. I even offered to have her do some filing. My manager’s unequivocal response was, ‘No.’ Isn’t this overly strict?”

A: No.

Many employers don’t let children spend more than a very limited time in the workplace, and the reasons for such a restriction can be entirely legitimate. For example, they may fear accidents or are concerned about disruption of other workers. When it comes to your offer to have your daughter do some filing, you should be aware that there are strict limits on what an 11-year-old can do in the workplace. Perhaps there are many tasks that she could perform quite competently. But your company may not want to risk a legal citation for exploiting underage labor.

Workplace-Q-and-A

Q: My co-worker just returned from 2 years of active military duty and was given a big raise. Is that fair?

“I am really upset. One of my co-workers just returned from two years of active military duty in Germany. My company immediately gave him a major promotion and a big raise. Is that really fair?”

A: Not only fair, but required by law.

Federal law mandates that an employee returning from military service must be placed in the job he would have had if he had remained with the company during the entire period of his military leave. He must also receive the level of pay and any pay raises that he would have received if he had stayed on the job.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q&A: Part 9

Q: My boss is a bully. What should I do?

“My boss is a bully. He hones in on the most vulnerable people in our group and then picks on them. So far I’ve escaped his attention because nothing really noteworthy has happened in my life. Still, I’m totally stressed out. If I get sick, he’ll make fun of my illness. If I have a problem with my child, he’ll tell me I’m a bad mother. If there’s a death in my family, he’ll say I’m next in line for the grave. Whatever happens, he’ll tease me about it and throw it back in my face. I’m not sure I’ll be able to take his abuse. What should I do?”

A: Look for another job.

If you stay, it can only end up badly. Everyone will eventually get sick, have family difficulties, or encounter problems with his appearance, and you’re right that you are no exception. When that happens, you won’t need the extra stress of being teased and bullied about it.

Do not share with anyone your plans to do a job search. When you are interviewing for your new job, do not talk about your bad boss. Focus on the benefits of the new position and why it is a perfect opportunity for you.

Q: Can my co-worker use company-licensed software for his own personal business?

“My co-worker is running software that has been licensed by our company. He uses the software not only for work, but also for his own personal business projects. When I asked him about it, he said that the software license is in his name, and that there’s no extra cost to the company if he uses the software for his own business, too. Can he do this?”

A: No.

Your company may have put your co-worker’s name on the licensing agreement as an authorized user. But that does not mean he can use the software for his own business. In fact, he is probably violating the terms of the licensing agreement as well as your company’s own internal policy on the use of corporate resources.

Workplace-Q-and-A

Q: My boss found some embarrassing things in my desk. What should I do?

“I am a secretary. Last week, when I was absent from work, my manager needed some forms to fill out for reimbursement. So he went through my desk looking for them. Although I had nothing illegal in my desk, there were some personal things that were, well, embarrassing. Now I feel really uncomfortable interacting with my manager. What can I do?”

A: Try to forget about what happened.

I’m assuming that your manager in fact had a timely need for the reimbursement forms and that he knew you kept them in your desk. In that case, he is allowed to look for them. As a general rule, any property in the office is fair game for a search if there is a business reason. Your boss’ search does not seem like an abuse of management power.

I suggest that you try to forget what happened. My guess is that your manager has already forgotten about it. There are very few things that most people haven’t seen at one time or another.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q & A: Part 8

Q: Do I have to tell my manager that I’m pregnant?

“Do I have to inform my manager that I am pregnant? I work in a busy division where managers like to plan the work schedule months in advance.”

A: No.

You don’t have to tell your manager before you’re ready to tell the whole world.

When you do tell him, it will be in your interest to offer suggestions for coverage and to advise him of your plans for maternity leave and your expectations upon returning to work. If you intend to ask for a flex schedule or part-time work, you need to figure out the details now rather than later. If your company is inflexible and makes demands that will be incompatible with your new responsibilities as a mother, you need to plan now your strategy for finding another job.

This may be one of those situations where giving your manager a heads up will signal your interest and dedication to the company, even though you’re not obligated to give him information about your private life.

Q: My service dog calms me down when I get panic attacks. Can I bring the dog to work?

“I have a service dog because I get frequent panic attacks. When I have chest pain, shortness of breath, palpitations, and a feeling like I’m not in my own body, my service dog is able to calm me down. I would like to bring the dog to work. My manager says the company has a ‘no pets allowed’ policy, and that the only exception is a seeing-eye dog. Can I bring the dog to work?”

A: Yes.

The company cannot bar service dogs from accompanying employees to work. However, your employer is allowed to establish reasonable rules, for example, that you must keep the dog with you and that the dog remain relatively quiet.

Permitting a service dog to accompany an employee would be considered a reasonable accommodation under the Americans for Disabilities Act (ADA). It’s difficult to see how the dog could present an undo hardship to your company. Claiming that other employees or customers don’t like dogs would not be enough to bar your dog from the workplace.

The dog should have some type identification showing it is a service dog, but you do not have to present any special certification materials to the employer. You should spend a little time educating your co-workers about what they can and cannot do in relation to the dog, since the natural inclination of most people is to pet the dog or give the dog a treat.

Workplace-Q-and-A

Q: Do I have to report an employee who accessed child pornography on his computer?

“One of my direct employees accessed child porn on his computer. My guess is that he stumbled upon it. But the fact is that I don’t really know how it happened. He is an extremely good worker. I would like to forget the whole thing. Do I have to report him?”

A: Yes.

You should report this situation to corporate security and let them do an investigation. Viewing child pornography is very different from viewing adult porn and can lead to criminal charges. As you indicated, you don’t really know what is going on. And you certainly don’t want to be accused of covering up someone else’s accessing and viewing child pornography.

The fact that this employee is a good worker is unlikely to help him keep his job if, in fact, he has been downloading and viewing child porn on the company computer. It is more likely that he will be terminated and his case reported to law enforcement authorities.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q & A: Part 7

Q: Can I be fired just because I got arrested?

“I was arrested for getting into a serious altercation with a guy who rammed into my car on purpose. It wasn’t on work property or on work time. In fact, it was in another state. The trial won’t take place for one year. Can I be fired just because I got arrested?”

A: In this case, yes.

Yes, you could be fired or put on unpaid leave. A company cannot fire an employee simply because he has an arrest record. But it does not have to retain an employee with an open case for a crime involving violence.

If you weren’t at fault and you have documentation to that effect – such as a police report or statements from witnesses or your lawyer – you can try to convince your employer that you aren’t at risk for further violence. It would certainly help if you have no prior police record and an absolutely spotless driving record.

Q: My co-worker has nicknamed me Giraffe. Can he get away with this?

“My name is Geoff. I’m six foot four inches tall and fairly lean. One of my co-workers calls me Giraffe. I’ve repeatedly asked him to stop, but he just laughs and continues to do it. Can he get away with this?”

A: No.

Your co-worker is engaging in a common form of workplace bullying. It is stressful to be teased on a regular basis. It interferes with your ability to get your work done. You should file a written complain with your manager, detailing the times and places that your co-worker has engaged in this name-calling, and you should list those people who have witnessed it. Your company should instruct the employee to immediately cease calling you Giraffe.

Workplace-Q-and-A

Q: Can I get my co-workers to stay home when they’re contagious?

“The other employees in my area always come to work sick. The group passes around colds and flu all winter long. My problem is that I have asthma, and every time I get a cold, I’m laid low for two weeks on antibiotics and extra asthma medicine. I realize that my company’s management frowns upon taking a day off, and my clients aren’t too happy about it either. Still, isn’t there some way I can get my co-workers to stay home when they’re contagious?”

A: No.

Employees cannot be forced to stay at home. However, your co-workers may be willing to keep their distance if you explain how hard it is for you to shake a cold and how unproductive it makes you at work.

Ask your manager if he would allow you to work at home or stagger your hours when your co-workers are sick. You are certainly entitled to keep a distance from your co-workers. And wash your hands frequently.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

Workplace Q & A: Part 6

Q: Now that I have become a woman, do I still have to wear men’s clothes to work?

“I am in the process of gender reassignment. Now that I look like a woman instead of a man, I have recently been wearing women’s clothes to work. This afternoon, my manager took me aside and warned me, ‘Too many of your fellow employees and too many of our clients knew you as a man. Seeing you in women’s clothes makes them uncomfortable. So, you can wear whatever you want after work. But you’ll have to come to work here in men’s clothes.’ Do I have to obey my manager and wear men’s clothes to work?”

A: No.

You are allowed to dress in a manner that is consistent with your gender identity. A business can have a dress code. It can forbid torn or soiled clothing, beachwear, or tee shirts with offensive images. For employees in client-facing positions, it can prohibit multiple visible piercings and tattoos. But it cannot dictate your identity. Your fellow employees and clients will have to get used to it.

Q: During my probationary period, can I be fired without any warning or any explanation?

“When I was hired, I was told that my new job had a 90-day probationary period. During that time, I never received any warnings or criticism of my performance. When the 90 days were almost up, I was called into my manager’s office with no advance notice and fired on the spot. The worst part was that I received no explanation. Can my manager do this?”

A: Yes.

There is no law that governs the duration or the specific conditions of a probationary period. Some probationary periods last 2 weeks, while others last 6 months. Some might provide that the employee on probation must receive a warning before termination. But in all likelihood, your probationary period permitted your company to terminate you for unsatisfactory performance within 90 days without going through any of the standard procedures in its human resources manual. And in all likelihood, you won’t be eligible for severance pay either.

However, during a probationary period, your employer cannot treat you unfairly because of your race, sex, age, national origin, disability or sexual orientation. If discrimination becomes an issue, your company may have to show that you received proper training and that you were given an opportunity to correct your deficiencies.

A company would be well advised to discontinue its use of probationary periods for new hires. It would be better instead to give all employees the same notice of deficiencies and the same opportunities for training and new assignments. That would clear the air of any possibility that the company wanted to get rid of an employee for an improper reason.

Workplace-Q-and-A

Q: Can a company make me go through four interviews, complete two preliminary job assignments and produce five references before it decides to hire me?

“I recently applied for a job as a communications officer. I had to undergo four interviews with people in different parts of the company. Then I had to complete a job assignment to demonstrate my communication skills. Then I was asked for five references. And now they want a second writing sample. Can a company require me to jump through all these hoops? What if they don’t hire me?”

A: Yes.

A company can establish whatever requirements it wants, so long as they’re connected to the job you’re applying for. In our new age of multiple applicants for each job, employers can be super-picky. They want to turn over every stone.

It’s entirely possible that you won’t get the job. It happens all the time and for a variety of reasons. The company might ultimately decide it can do without another employee. It could decide instead to hire internally. Or it could decide to hire a friend of the CEO.

In fact, the company might find your preliminary assignments to be quite valuable. It could use your work product without hiring you. That’s a risk you’ll have to take if you want to be considered for the job.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.