War and the Workplace: Staying the Course in Times of Crisis

Current political and international events, most notably September 11 and the war with Iraq, have had a significant effect on the workplace. Employers are now keenly aware that they must take steps to prevent and prepare for catastrophe on a number of fronts. The employment-related impact of these world events arises in a number of ways, some obvious, some not so obvious. This article identifies areas of critical concern for employers and offers concrete ways to address and resolve them.

EMPLOYEES ENTERING MILITARY SERVICE

One of the most obvious and major impacts of war on the workplace occurs when employees enter military service. Federal law imposes far reaching and substantial requirements on employers, and failure to comply can create significant loss of face as well as finances. The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") applies to employees who serve in the armed forces, regardless of whether they physically continue their employment with an employer or take a leave from such employment. Most employer obligations arise when an employee seeks to return to work after service, but some arise prior to that time.

Summary of Legal Requirements

USERRA prohibits discrimination against employees who serve in the armed forces and guarantees reemployment to those returning from military leave. In addition, USERRA provides that employees on military leave are to be offered up to 18 months of continuing health care coverage as required by the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and requires that employers return them to employment based on the "escalator principle."

Employees are protected by USERRA if they:

• hold a civilian job;
• give notice, written or verbal, unless military necessity or other exigent circumstances preclude such notice;
• serve five years or less, except in cases of national emergency or where an employee enrolled in a specialized program requiring an initial enlistment period of six years;
• are not discharged from service under dishonorable or other punitive conditions; and
• report back to work in a timely manner.

Employees who serve fewer than 31 days are required to report back for employment by the beginning of the first regularly scheduled work period after the completion of military service (with allowances for travel time, recuperation periods where employees are injured, and other exigent circumstances). Employees who serve between 31 and 180 days are required to report back for employment within 14 days after the completion of military service. Employees who serve more than 180 days are required to report back for employment within 90 days after completion of military service.

A re-employed person returning from a leave of 181 days or more may not be discharged except for "cause" in the year following resumption of employment. A reemployed person returning from a leave of between 30 and 180 days may not be discharged except for "cause" for six months following resumption of employment.

USERRA also requires reinstatement rights in an employer health plan when an employee returns from military service. The employer cannot impose waiting periods or preexisting conditions exclusions on either the employee or any dependents.

Benefit plans other than those related to health care (generally referred to as pension benefit plans) may not treat employees returning from military service as having incurred a break in employment by reason of military leave, and an employee may not be required to re-qualify for participation in a pension benefit plan. Once the employee is reemployed, employers must provide make-up contributions for plan service periods during which the employee was in uniformed service. The employee may be required to make contributions that he/she otherwise would have had to make to the plan were it not for the military service, but he/she must be allowed up to three times the length of the military service, but no longer than five years, to make that contribution. (A more detailed description of employer obligations under USERRA can be found on the firm website located at www.WildmanHarrold.com.)

How to Address Military Service Issues

As employees leave to enter the service, an employer's obligations are not as significant as when they return. There are, however, some steps that can be taken at the beginning of a military leave to ensure compliance. They include the following:

1. Know your obligations and communicate your policy in writing. Employers should know their obligations and take steps to ensure they are met. Employees on military leave are entitled to the same rights and benefits as employees on other similar leaves. A written policy covering military leave, whether in an employee handbook or a stand-alone announcement, will reassure employees of the company's commitment to observe those obligations. It also will remind supervisors of their responsibility to handle military leave requests in a prescribed manner.
   
   
2. Document Leaves. Ask employees to put their requests for military leave in writing, so there will be a record of the reason for and date of departure in the personnel file. Such documentation will prevent disputes regarding the duration and purpose of the leave.
   
   
3. Advise Employee of Rights. Employers may advise departing employees at the time they leave that they have certain reinstatement rights. This will assure employees are aware of what they must do to preserve those rights. It also reinforces the organization's commitment to compliance.
   
   
4. Offer COBRA. Leave for military service is considered a "qualifying event" triggering an employer's obligation to offer continued participation in its group health insurance program as required by COBRA. As a result, employers must offer COBRA rights to employees and spouses and dependents. Employees may be handed the election form. It also should be sent by certified mail to spouses and dependents, however, to assure it is received and that receipt can be documented.
   
   
5. Offer Vacation Option. Employees must be given the option of using vacation during military leave, but they may not be forced to do so. As a result, employers should ask departing employees whether they wish to use or save accrued vacation.
   
   
6. Provide Pay During Leave. Employers are not required to pay employees during all or any portion of military leave, but they may elect to do so. Company policy regarding pay should be addressed in written policy.
   
   
7. Observe Reinstatement Rights. The right of reinstatement applies only to those who are not discharged for dishonorable or other "punitive conditions." It is appropriate, therefore, to request a copy of the returning employee's discharge papers to ensure he/she is eligible for reinstatement privileges. Discharge papers will also confirm whether application for reinstatement is timely. Employees who are unable to return within the time frames described above may be excused due to medical or other emergencies, and returning veterans should not be automatically disqualified if they do not request reinstatement precisely within those timeframes.
   
   
8. Cause and Termination. Because "cause" is not clearly defined, care should be exercised in disciplining/terminating veterans during the applicable period of six months or one year following their return.
   
   

EMPLOYEES AND DISCRIMINATION/HARASSMENT

During the past decade, American employers have become committed to efforts to increase diversity in the workplace. Ironically, those efforts may provide the basis for workplace disruption in times of crises. External conflicts between nations with different religious, cultural and racial compositions can be brought into a workplace where individuals from those nations work in close proximity to people they may consider to be the "enemy." Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits discrimination on the basis of protected characteristics including religion, race and national origin, is the primary source of potential liability for employers. It applies to all applicants for employment as well as employees. State, county and local laws mirror these prohibitions as well.

Summary of Legal Requirements

Title VII prohibits workplace harassment and other discrimination based on an individual's affiliation with a particular group, the individual's physical or cultural traits, or the perception (albeit incorrect) that an individual is of a particular national origin or ethnic or religious group. It requires employers to provide a workplace free of discrimination and harassment based on religion, ethnicity or country of origin. These obligations apply regardless of whether the source of adverse treatment is management, co-workers or outsiders with whom employees come in contact during the course of their employment.

The most common types of harassment include epithets, slurs, comments and jokes in oral, written and electronic form, based on protected status. Other equally problematic behavior, however, can occur in the form of isolation, snubbing and co-worker and customer refusal to associate.

In the wake of September 11, concerns of backlash against Muslims and people of Middle Eastern origin and descent caused the U.S. Attorney General's Office to issue a statement denouncing acts of discrimination as "contrary to our fundamental principles and the laws of the United States." Similarly, the Chair of the EEOC issued a statement declaring that, "Employers and labor unions have a special role in guarding against unlawful workplace discrimination."

Despite these admonitions, the EEOC recently reported that the largest increase in charges filed during 2002 from the prior year were in allegations of discrimination based on religion (up 20%) and national origin (up 13%). The workplace problems represented by these statistics are likely to continue to rise based on the United States' involvement in Iraq.

How to Address Discrimination/Harassment Issues

The law is clear; employers have a duty to provide a workplace free of discrimination and harassment based on protected status. Because constitutional rights of free speech generally do not apply in private sector employment, an employer can and must restrict expressions of national and religious opinion when they have the effect of creating an environment that is hostile or offensive to employees of certain ethnic and religious backgrounds. The following are suggestions for assuring compliance with Title VII requirements during times of heightened international hostility.

1. Re-Publish Policies. Employers should republish anti-harassment and non-discrimination policies. They should be reviewed and revised before doing so if they are out of date. It is a good idea to reiterate and emphasize the organization's commitment to provide a workplace free of discrimination, including harassment. The reminder should include a description of procedures for reporting problems, and employees should be encouraged to come forward quickly and without fear of retaliation if they observe or experience violations. This reminder is most effective and of the greatest defensive use when it is issued by the employer's top executive. Its importance as an expression of company policy will not be underestimated.
   
   
2. Review Hiring/Employment Practices. A proactive review and revision of specific hiring and employment practices may prevent claims of discrimination. Special attention should be given to policies such as English-only requirements, accommodations to religious practices (such as dress) and time off for religious observance.
   
   
3. Train Managers. Line managers and supervisors are in the best position to observe problems and address them quickly before they become major issues. Teaching managers how to deal with potentially volatile situations is worthwhile if it prevents or quickly remedies even one incident of harassment or discrimination before it becomes a complaint. Managers also should be reminded that their personal conduct, as well as that of subordinates, must be in compliance.
   
   
4. Take The Extra Step. Some employers are taking the extra step by actively and affirmatively promoting an attitude of tolerance and understanding, holding employee forums, cultural exchanges and other activities to promote diversity. Whether such activities are appropriate will depend on the individual organization involved. Such actions are especially appropriate when there is diversity in the workforce because they help employees to identify common goals and concerns and give them a neutral setting in which to discuss them. They also complement and confirm the organization's ongoing diversity efforts.
   
   

EMPLOYEES WITH CRISIS/WAR-RELATED HEALTH AND FAMILY ISSUES

Employees who are injured in the service may require special attention when they return. The casualties of war are not limited to the battlefield, however, and family members and employees generally also may experience illness as the result of the hardships and anxieties of war and terrorism.

Provisions of the Family and Medical Leave Act ("FMLA") and the Americans with Disabilities Act ("ADA") become extremely relevant as national crises result in personal crises. The FMLA and/or ADA can come into play when employees or close relatives experience a serious health condition or disability directly related to military service. Employees also may be eligible for time off and/or accommodation due to heightened phobias, such as fear of flying, traveling or entering tall buildings, that are brought on by crises. Similarly, the ADA may apply to returning veterans who are injured in battle and request reasonable accommodation for continuing limitations imposed by those injuries. Additionally, employees whose spouses are with the service may be eligible for the benefits of either or both of these laws based on conditions such as depression and mental stress brought on by grief and anxiety.

Summary of Legal Requirements

The FMLA applies to private employers with 50 or more employees and requires employers to give eligible employees up to 12 weeks of unpaid leave per year in the event of (1) the birth or adoption of a child, (2) the employee being needed to care for a seriously ill child, spouse or parent, or (3) the employee's own serious health condition. A serious health condition is broadly defined. During the leave, any pre-existing health benefits must be maintained, and upon timely return from leave, the employee must be restored to the same or an equivalent position.

The ADA, on the other hand, applies to private employers with 15 or more employees and prohibits discrimination in all aspects of employment. It covers qualified applicants and employees with a disability, perceived disability or history of a disability. The ADA definition of "disability" encompasses a wide range of physical and mental impairments, and a disabled individual is deemed "qualified" if he or she can perform the essential functions of the job with or without a reasonable accommodation.

Employers are required to make reasonable accommodation for all qualified individuals with a disability unless doing so would cause undue hardship to the employer. Reasonable accommodation includes such things as providing special equipment, modifying facilities and work schedules, allowing time off, and job restructuring. The definition of a serious health condition covered by the FMLA is much broader than the definition of disability under the ADA, and individuals who are entitled to job-protected leave under the FMLA are not necessarily also entitled to reasonable accommodation under the ADA.

How to Address Crisis-Related Health Issues

1. Provide Leave to and Accommodate Veterans. Employees returning from military leave are entitled to additional time to report to work if the delay is due to health-related issues. As a result, rigid adherence to statutory timeframes is not appropriate.
   
   

   Additionally, injured veterans may return with continuing limitations based on ongoing treatment or the lingering (perhaps permanent) effects of an injury. If these remaining conditions meet the definition of a serious health condition, returning employees may be eligible for intermittent or reduced schedule leave under the FMLA, and time spent in military service should not be viewed as time away from work for purposes of meeting FMLA eligibility standards. If the condition meets the definition of disability, ADA-imposed reasonable accommodations such as job restructuring, reassignment or equipment modification may be required.

2. Provide Leave to Spouses and Close Relatives and Accommodate Relatives Who Develop Disabilities. The FMLA may apply to spouses who are needed to care for spouses injured in the war. They and their children also may develop serious health conditions which would also trigger an FMLA entitlement to job-protected leave. Finally, the anxiety and grief can result in disabling conditions such as a bi-polar illness and other stress-related illnesses requiring the need to examine potential reasonable accommodations.
   
   

EMPLOYEE PROTECTED, CONCERTED ACTIVITY AND WORKPLACE PROTESTS

Generally, constitutional rights of free speech do not apply in a private sector workplace, and employers have the right to control expressions of religious belief and/or political views by employees at work. There are circumstances, however, where employers may not interfere with certain group expressions of mutual aid and protection related to national or international crises.

Summary of Legal Requirements

The National Labor Relations Act ("NLRA") states and defines the rights of employees to organize and to bargain collectively with their employers through representatives of their own choosing. To protect the rights of employees and employers and to prevent labor disputes that would adversely affect the rights of the public, Congress has defined certain practices of employers and employees' chosen representatives as unfair labor practices. Although chosen representatives are usually organized unions, they can also be one or more employees acting on behalf of a large group.

Section 7 of the NLRA prohibits employers from taking adverse action against employees who engage in "concerted activity." Interference, restraint or coercion with respect to Section 7 rights is considered an unfair labor practice under Section 8(a)(1) and prohibited discrimination under Section 8(a)(3) of the NLRA. While protected activity is generally associated with actions taken in support of labor organizations, it is more broadly defined as activity engaged in for "other mutual aid and protection," and includes actions of employees in expressing concerns of employees generally. In times of crisis, those concerns can be for personal safety, objections to invasive safety precautions, and other conduct intended to advance employees' interests at work.

How to Address Employee Disruptive Conduct

1. Identify "Concerted" Activity. To be considered protected or concerted activity, generally there must be more than one employee involved (although it can involve only one employee if that individual has been designated as a representative of a group). Activity that is wholly personal or an expression of individual concerns or objectives is not covered. Individual expressions of religious beliefs or political views, therefore, are not protected and need not be tolerated. No disciplinary action should be taken, however, until the activity is clearly identified as individual and not representative in order to avoid an unfair labor practice charge.
   
   
2. Evaluate Motives of "Mutual Aid or Protection." Even where a group of employees is involved, the concerted conduct is not protected when it is unrelated to work or any work-related issues, or does not advance employees' interests as employees. A group protest against or for the war would not be covered. On the other hand, a work stoppage prompted by such things as workplace security concerns based on terrorist threats or alleged discrimination based on national origin, race or religion, would likely be considered protected and any discipline of participants could result in an unfair labor practice charge. As a result, the specific reasons for any group demonstrations or other disruptions of the workplace should be carefully assessed before deciding whether and how to respond.
   
   
3. Draw the Line Between Protected and Unprotected Activity. Otherwise protected activity can become unprotected if employees engage in certain extreme behavior. For example, while a strike involving leaving the workplace is protected, a sit down strike where employees take over the employer's premises and refuse requests to leave is not. Similarly, a partial strike or intermittent strike is generally not protected. Employees' breach of loyalty by, for example, breaching confidentiality, making false allegations about the employer or disparaging the company's business also can form the basis for termination. Once activity crosses the line, employers are free to react by imposing discipline or discharge on those involved. Knowing where to draw the line, however, is critical.
   
   

EMPLOYEE PRIVACY VERSUS EMPLOYER SECURITY

There are growing concerns for the security of persons and property in the aftermath of September 11 and as other terrorist threats increase. The reinstatement of FBI surveillance powers, the establishment of "Operation TIPS," a nationwide anti-terrorism reporting program and the establishment of the Department of Homeland Security all are a response to those events.

Concerns for security naturally apply to the workplace as well and have given rise to the increased use of pre-hire background checks, employee testing and employee monitoring. Many companies also have implemented security departments, the sole responsibility of which is to analyze vulnerability and implement appropriate precautions.

Summary of Legal Requirements

Employers are faced with the conflicting goals of protecting individual privacy rights and protecting the security of company property and the workforce in general.

Some of the laws addressing employee privacy concerns include: the Fair Credit Reporting Act (which dictates how an employer must handle applicant and employer background checks conducted by outside investigation services); the Employer Polygraph Protection Act (which significantly limits the use of polygraph tests for employment purposes); the Electronic Communications Privacy Act; the ADA (which limits the types of medical inquiries employers may make); causes of action and state laws covering personal records, electronic monitoring, eavesdropping, and general privacy in the workplace. Common law causes of action for invasion of privacy, defamation and intentional infliction of emotional distress also are applicable.

On the other hand, employers face liability for not taking appropriate security precautions. The most obvious problems are disruption of business, damage or destruction of property and injuries to workers caused by terrorist activities. Lack of security can bring on other legal liabilities as well. For example, tort claims for negligent hiring have been filed against employers who fail to adequately check the suitability of employees for work and create a risk of harm to the public or other employees. The convicted rapist who was hired as a gas meter reader is a prime example. Similarly, employers face claims of failure to provide a workplace free of recognized hazards as required by the Occupational Safety Health Act.

How to Balance Privacy and Security Interests

1. Conduct a Vulnerability Audit. Due to the nature of their products or services, some employers must take extraordinary safety and security precautions. The vast majority of companies, however, do not. While every company should establish some type of security plan, individual plans should be designed to meet individual needs and situations. The only thing worse than having no plan is having a plan that unnecessarily intrudes on employees' lives and privacy. Conducting an individual assessment on vulnerability is the best way to focus on areas that require attention and avoid creating an overly restrictive work environment that alienates employees.
   
   
2. Develop a Comprehensive Disaster/Security Plan. It is clear from events of the past several years that the American workplace is not immune to the effects of international unrest and turbulence. As a result, employers must adopt policies and procedures that address both prevention of and preparation for crises in the workplace. Applicant background checks, identification badges, employee inspection procedures and policies for monitoring employees' e-mail, voicemail and Internet usage are commonly adopted prevention tools. Preparation for crisis includes establishing evacuation procedures, information back-up capabilities, and emergency contact procedures. As is the case with a vulnerability audit, any security precautions should be related to the organization's individual needs and concerns, and their potential negative impact on employees should always be considered.
   
   
3. Communicate and Train. The most comprehensive security plan is worthless if no one knows what it is or how to implement it. To be successful, any plan must be communicated to and discussed with employees to it. Supervisors in particular should be made aware of their responsibilities in the event of a crisis. Evacuation drills also may be in order. These measures will ensure the plan's effectiveness and also will reassure employees that the organization is prepared to meet an emergency situation.
   
   

EMPLOYEES AND IMMIGRATION AUTHORITIES

Since September 11, the government has initiated a concerted effort to identify and expel those who are in the country illegally, especially from Middle Eastern counties. The Immigration Reform and Control Act ("IRCA") contains a number of requirements that prohibit this kind of conduct by employers. Its provisions are enforced by a number of governmental agencies including the Bureau of Citizen and Immigration Services ("BCIS") [The BCIS was formerly called the Immigration and Naturalization Service ("INS"). BCIS and is now part of the new Department of Homeland Security], the Department of Labor Wage/Hour Division and the Office of Federal Contract Compliance Programs.

Summary of Legal Requirements

IRCA prohibits the employment of unauthorized aliens. It requires employers to verify the identity and authorization to work of all individuals hired, and to complete a prescribed form, the I-9 attestation form, indicating that they have done so. Employers must verify both the identity and authorization to work of all employees hired by physically viewing specific documents. The employer and applicant must complete an I-9 attestation form on which the employer attests to viewing the required documents provided by the applicant and the applicant attests to the genuineness of those documents. The employer need not verify the authenticity of documents provided so long as they "reasonably appear" to be genuine. Employers are permitted to copy documents provided, and those copies should be attached to the completed I-9 attestation forms. The verification process must be completed within three days of hire.

While IRCA prohibits the employment of individuals who are unable to verify identity and authorization to work in the United States, it also prohibits discrimination on the basis of national origin and citizenship status, which prevents employers from selectively refusing to hire individuals from certain countries, even though the government may be targeting individuals from those countries for special scrutiny.

Charges of citizenship and alienage discrimination are filed with the Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC"), which investigates and prosecutes such claims. It also may initiate independent investigations based on information developed for individual charges or received from other governmental sources or the public. OSC litigation has resulted in significant money damages for individuals, especially in the case of claims of unfair immigration related employment practices. Enforcement of the I-9 attestation form requirement, on the other hand, falls within the jurisdiction of the BCIS, which conducts random audits of employer facilities.

1. Review I-9's. Employers should carefully review their I-9 attestation forms to make sure they are on file and complete. If an I-9 Form is missing, a duplicate should be completed by both the employer and employee. The duplicate should be labeled as such and dated as of the date of its completion. It should not be backdated to the date of employment. A notation may be made on the form indicating a duplicate was prepared when it was found that the original was not in the file. Similarly, if the review uncovers an incomplete I-9 attestation form, the missing information should be inserted by the appropriate party and the fact of its delayed completion should be noted and dated on the form.
   
   
2. Review Hiring Practices/IRCA Compliance. Hiring policies and practices should be reviewed to assure compliance with IRCA. Claims filed with the BCIS are frequently based on an employer's refusal to accept anything other than Social Security cards and driver's licenses to establish identity and authorization to work. The BCIS has approved a number of other documents which must be considered for this purpose, and they should be accepted.
   
   
3. Train Supervisors. Supervisors, especially those engaged in the hiring process, are the most likely source of claims of unfair immigration related employment practices. To avoid such claims, steps should be taken to make sure managers understand the organization's legal obligations and their responsibilities to ignore the fact that someone may appear "foreign." The message should be made clear that misguided patriotism will not be tolerated in the workplace.
   
   

Wildman Harrold has significant expertise and experience in assisting employers with developing policies and practices in compliance with applicable law. If you would like to discuss any of the matters covered by this memorandum further, please contact Sherrie Travis at 312.201.2198 or Beau Sefton at 312.201.2502.