Author Archives: Shayna Balch

Shayna Balch

About Shayna Balch

Shayna H. Balch is an associate at Fisher & Phillips LLP in Phoenix where she handles matters across all facets of labor and employment law, including employment discrimination, sexual harassment, retaliation, wrongful termination, restrictive covenants, preventive counseling, employee training, personnel policies and employment agreements. She is also an incoming member of the Valley of the Sun Human Resources Board of Directors in 2012 and currently serves as chairperson of the organization’s Legislative Action Committee, where she is focused on educating members about current and pending legislative changes as well as influencing the legislative process by bringing the voice of human resource professionals to lawmakers. For more information, please visit www.laborlawyers.com.

physical discrimination

“The Beauty Bias” Brings To Light Physical Discrimination In The Workplace

Hypothetically speaking, if Jennifer Aniston was competing against Susan Boyle for an office job and had the exact same resume, who would be more likely to score gig?

And what if Aniston had less experience than musically-gifted but regular-looking Boyle?

According to “The Beauty Bias,” written by Stanford law professor Deborah Rhode, nearly 60 percent of hiring managers would take Aniston — experience or not. This study brings to light a bigger issue: different types of physical discrimination based on a person’s looks.

And it isn’t simply an issue among women.

“The Beauty Bias” also reports that over the course of a handsome man’s lifetime, he will on average make $250,000 more than his less-attractive male co-workers. Tall counts, too, with taller people making more than $700 more per year than those of average height.

One great example of our natural bias to beauty – even in males – is the infamous Richard Nixon/John F. Kennedy presidential debate in the 1960s. Radio listeners, who couldn’t see the handsome, tan Kennedy and sweating, older, shorter Nixon, were sure Nixon had won the debate. However, audiences who viewed the debate on their televisions were positive Kennedy was the victor.

But can this really be seeping into our offices?

Yes.

Approximately 12 to 14 percent of workers say they’ve suffered some sort of appearance-based discrimination on the job.

There are some out there, however, who are making a very convincing case that this sort of physical discrimination has serious and wide-spread consequences — and that there should be a way to fight back.

Today, there are even some cities, like San Francisco, with laws in place to fight what may be considered this type of discrimination. And, whether there are laws in place or not, there are those out there winning lawsuits and some out there wasting time with frivolous lawsuits based on several types of (what they consider) physical discrimination.

Most often, sex discrimination and age discrimination are issues in these types of lawsuits, especially if the potential or current employee can show he/she was overlooked for a job or promotion by a hiring manager or business specifically seeking a young, attractive individual of a specific sex. Some take it further, arguing that what may be construed as “unattractiveness” is a disability under the Americans with Disabilities Act (ADA).

However, the following features are NOT considered disabilities:

  • Height
  • Weight
  • Eye color
  • Hair color

That being said, extreme obesity that results from some physiological disorder, such as hypertension or a thyroid condition, and deformities are both exceptions to the rule and can both potentially be covered under the ADA.

Another exception to the rule? If you have a job – perhaps as a dancer or model – where looks are meant to perform a specific function of the job, discrimination is out.

So where is the happy medium?

If you have average looks, will you settle for an average life?

Are you doomed for life because of the way you look, good or bad?

Honestly, that is a question you have to answer for yourself. And sometimes, although noting that looks do play a part, maybe you didn’t get that job or promotion for many reasons. Not everything is based on having a flat stomach or Brazilian blowout.

For more information about physical discrimination in the workplace, please visit laborlawyers.com.

Intern Season: The Six Criteria To Allow Unpaid Internships

Intern Season: The Six Criteria To Allow Unpaid Internships

Here’s the six criteria a business must meet in order to allow unpaid internships.


It’s no secret that today’s economy is tough.

Students are working hard to learn needed skills in the career of their choice, while current members of our workforce are going back to school and training to learn a new trade.

The result?

Business vets are joining this year’s crop of students as fall interns. They will work away — often for free — in hopes of a future job, a resume builder and even to sample “the real world.”

There is just one problem; in many cases, this is illegal for both the business vets and students.

It’s true.

The Fair Labor Standards Act (FLSA), which is the federal law requiring the payment of minimum wages and overtime compensation, generally prohibits unpaid internships, especially in the private, for-profit sector, has long had spottily-enforced rules on just this issue.

And — things are getting serious.

In recent years, the Department of Labor issued a very specific crackdown regarding unpaid employees — a six-point checklist on just how far an internship can go before requiring a business to pay up by at least offering minimum wage.

The six criteria a business must meet in order to allow unpaid internships are:

1.     The internship, even though  it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2.     The internship experience is for the benefit of the intern;

3.     The intern does not displace regular employees, but works under close supervision of existing staff;

4.     The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5.     The intern is not necessarily entitled to a job at the conclusion of the internship; and,

6.     The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If an internship does not meet all of the above areas, the “intern” needs to be paid at least minimum wage as well as overtime as needed. In addition, a true internship should always be offered for a specific, defined time frame — and should never promise potential future work.

In the past, this hope for future work has kept interns from complaining of no pay — and kept employers safe from getting what amounts to free labor. This is not the case any longer. Since the release of the specified internship criteria, the Department of Labor has cracked down on what qualifies as an employee versus as internship in the strictest of senses.

So, what does the Department of Labor mean when it says “crackdown”?

What can really happen to a business not caught paying its interns?

Specifically, employers not in compliance with the Department of Labor regulations face legal exposure both from the government and a potential lawsuit. Penalties can include owing back pay, taxes not withheld, Social Security, unemployment benefits, interest, attorneys’ fees and liquidated damages (double the unpaid wages).

Some tips on offering — and taking — internships moving forward:

  • Work the internship through a local college or university — many will offer course credit and specifics tasks that relate back to educational training;
  • Keep written, reviewed records specifying that no internship will ever guarantee legal employment to set expectations upfront;
  • Encourage interns to shadow team members rather than actively participate in the workload;
  • Never offer training specific ONLY to your company — offer a broad education and experiences about the industry instead; and,
  • Offer hourly payment to all interns, trainees and other seasonal members of the team no matter what.

One final note – unpaid internships at nonprofit, charitable organizations, where the interns volunteer without the expectation of compensation, are usually permissible.

For more information about unpaid internships, please visit laborlawyers.com.

office fragrances

Office Fragrance’s Becoming Real Issue

Office fragrance is becoming a real issue.

Asthma.

Fragrance sensitivity.

Allergies.

It may sound “rash,” but many types of fragrances in the workplace can trigger anything from breathing issues to hives to nausea to headaches — and everything in-between. These reactions can be so bad, in fact, lawsuits are being filed — and won — by suffering employees.

Case in point, in 2010 a city planner in Detroit won a substantial settlement against her employer under the Americans with Disabilities Act (ADA). In addition, this led the employer to adopt a strict “no-scent” policy office-wide.

How did it come to this?

These lawsuits typically arise because employees feel their sensitivity to fragrances disable them, and the workplace has done nothing to attempt to reasonably accommodate them.

But how do you determine if fragrance sensitivity is a disability? And how do you handle the awkward situation in the office?

First, determine if the employee(s) suffering does, in fact, have protection under the ADA.

This is a sometimes tricky situation because, according to the ADA, there is no one list of conditions protected under the act. Rather, there is a definition that a person must meet to qualify: A person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or is regarded as having such an impairment.

If the employee or employees do not specifically fall under this act, some questions you can ask internally to help determine the degree of the issue:

  • Has the employee met previously about the issue with anyone in human resources?
  • Does it appear to be a seasonal or everyday issue for the employee?
  • Is the employee showing physical or mental signs of distress based on the sensitivity?
  • Are these sensitivities limited work production?
  • Are there resources that can be made available to implement any types of accommodations?

If you determine the employee does, in fact, have a legitimate claim, there are several steps to take.

Most often, employers first look into simply moving the fragrance-sensitive employee and the employee(s) using excessive fragrance farther away from each other in the office. In other instances, employers ask their employees to voluntarily refrain from wearing or using fragrances at work. If taking this route, however, one must be crystal clear on fragrances.

For example, are scented candles allowed? And what about scented deodorants? Or lotions?

It is also important to never blame one or a few complaining employees, as that opens them up to office embarrassment and potential harassment, causing a litany of new issues in the workplace.

In some cases, one can also look into a fragrance sensitivity training session for the office to help educate everyone on the degree of stress scents may be causing co-workers.

Some additional accommodation ideas may include:

  • Testing and improving the overall air quality in the office.
  • Modifying work schedules or allowing telecommuting.
  • Providing air purification systems for sensitive employees.

In some extreme instances, the employer may have to develop a “no fragrance” policy in the office, complete with punishments for employees who continue to wear or use scents in the workplace.

The good news?

It usually doesn’t come to that.

In fact, according to the rule itself, all activities performed on behalf of the suffering employee must be reasonable to the employer as well. As such, drastic tactics that may hinder the office, such as a no fragrance policy, are often unnecessary.

The best way to handle the situation?

Sit down and listen to the employee’s issues, determine a plan of action together, document it for all parties involved, and follow up with the employee regularly.

For more information about office fragrance lawsuits, no fragrance policies and the other topics discussed in this column, call (602) 281-3406 or visit laborlawyers.com.

 

March Madness

March Madness: Rules To Follow In The Office

March Making You Mad? March Madness: Rules To Follow In The Office


The football season is over — and there are probably a few business owners happy about it.

Why?

Some studies suggest that fantasy football costs American businesses $615 million in productivity per NFL week.

But, when one chapter ends, another begins — time for March Madness.

For many of us, March Madness is a rite of passage in the spring, a chance to build camaraderie with co-workers through office pools, a chance to re-connect with college friends during games, and a chance to indulge in a few chicken wings with the family. Just as with fantasy football, however, employers are getting more and more impatient with even the most efficient and talented employees spending work hours accessing gambling websites on company computers during March Madness, taking time to exchange money, trash talk the teams and other sometimes inappropriate behavior with co-workers, friends and family.

At the least, every employee in your office should know the following before filling out a bracket at work:

  • Employers have the right to strictly enforce a policy prohibiting recreational use of the Internet and monitor employee usage to ensure that workers adhere to the policy while working.
  • Employers have the right to expect employees to devote 100 percent of their energies to their jobs between stated work hours.
  • As long as employers act consistently, they can fire employees who play fantasy sports instead of working.

To be safe, what can employers do right now?

Communicate!

If you are the employer, now is the perfect time to explain your specific rules on fantasy leagues in the workplace. It is also importance to note that just because March Madness IS allowed in the office, this doesn’t mean that everyone should take part. Outline reasons for and/or against it and consequences.

If you are the employee and are spending excessive company hours as well as precious time at home on March Madness, you may need more help than the office human resources department can provide and may want to ask yourself these questions.

1. Did you ever lose time from work or school due to gambling?
2. Has gambling ever made your home life unhappy?
3. Did gambling affect your reputation?
4. Have you ever felt remorse after gambling?
5. Did you ever gamble to get money with which to pay debts or otherwise solve financial difficulties?
6. Did gambling cause a decrease in your ambition or efficiency?
7. After losing did you feel you must return as soon as possible and win back your losses?
8. After a win did you have a strong urge to return and win more?
9. Did you often gamble until your last dollar was gone?
10. Did you ever borrow to finance your gambling?
11. Have you ever sold anything to finance gambling?
12. Were you reluctant to use “gambling money” for normal expenditures?
13. Did gambling make you careless of the welfare of yourself or your family?
14. Did you ever gamble longer than you had planned?
15. Have you ever gambled to escape worry, trouble, boredom or loneliness?
16. Have you ever committed, or considered committing, an illegal act to finance gambling?
17. Did gambling cause you to have difficulty in sleeping?
18. Do arguments, disappointments or frustrations create within you an urge to gamble?
19. Did you ever have an urge to celebrate any good fortune by a few hours of gambling?
20. Have you ever considered self-destruction or suicide as a result of your gambling?

According to Gamblers Anonymous, if you answered “yes” to seven or more questions, you or a loved one may have a problem with gambling.

Admitting you or your loved one may need help is the first step to recovery. The second is looking up the Arizona Office of Problem Gambling, which offers a litany of resources and contact information for counseling, treatment programs, additional warning signs and symptoms and much more.

Shayna Balch is an associate in Fisher & Phillips’ local office as well as  a member of the Valley of the Sun Human Resource Association’s Board of Directors. For more information about March Madness in the office, please visit laborlawyers.com or contact Shayna at (602) 281-3406.
Offices Romances

Flirting With Office Disaster? Minimize The Risk Of Office Romances

Minimize the risks associated with office romances; here are a few tips to keep in mind.


Every year around Valentine’s Day, offices across Arizona smell of freshly-delivered flowers and Belgian chocolates. But what if the person sending the flowers and chocolates works with you?

It’s not as uncommon as we’d like to think. In fact, an estimated 40 percent of U.S. workers have admitted to dating fellow employees — and another 40 percent would consider doing so now or in the future.

However romantic, taboo or thrilling it may seem, love in the workplace can be a nightmare for human resources executives and managers. First, it is hard to monitor. Second, it can make other employees uncomfortable – and jealous. Third, chances are the romance will end, and the office will suffer from lost productivity, decreased morale, increased gossip and more.

And perhaps most importantly, in extreme cases, the effects of a workplace romance gone wrong can lead to potential harassment and/or retaliation claims.

Some companies proactively work to prevent relationships in the workplace by instituting non-fraternization policies. It then becomes human resources’ responsibility to communicate the policy — and the consequences.

Most companies, however, are smart to take less extreme steps to minimize the risks associated with office romances. These include:

  • Updating the company’s harassment policy
  • Implementing a modified non-fraternization policy specifically forbidding dating among supervisors and subordinates as such relationships may give appearance of favoritism when it comes to promotions, raises, training, assignments and other job enhancements
  • Using “love contracts”

Love contracts are very specific. These written and signed documents act as confirmation that two employees’ romantic relationship is voluntary and that they both understand and know how to use their employer’s policies that forbid harassment in the workplace and provide mechanisms for reporting and solving problems. In many cases, love contracts have been especially effective in protecting the company if/when the relationship turns sour.

Though love contracts are not perfect — and not always popular — they do serve a significant purpose when it comes to preventing real problems. These contracts remind people that at one point the relationship they were in was welcomed and that they knew the relationship could be ended without adverse job consequences.

For more information about minimizing the risk of office romances, please visit laborlawyers.com or contact Shayna at (602) 281-3406.

Office Holiday Parties

Avoiding Unhappy Office Holiday Parties

Avoiding Unhappy Office Holiday Parties

Everyone loves a good company holiday party. They’re usually a fun way to unwind with your peers in a non-work environment, but sometimes these situations can take a quick turn for the worse. From sexual advances to drunken car rides home, holiday cheer can quickly turn into fear when you realize your job may now be on the line due to an irresponsible act.

There’s always going to be risks when hosting parties where alcohol is involved. In fact, according to a recent study conducted on employers, 36 percent of holiday party-goers behave poorly at their company parties. A lot of companies have chosen to go as far as to nix alcohol from holiday parties all together.

Therefore, here are some recommendations on how employers and employees can avoid the unhappiest of holiday parties and lawsuit-filled New Years:

  • If you choose to opt out of serving alcohol, celebrate by hosting a catered lunch at the office.
  • Be sure to allow each person a guest, whether it be a spouse or significant other. These guests could serve as “adult babysitters” to make sure the employee does not act out of line.
  • Have food and non-alcoholic drinks readily available. Food helps to absorb alcohol and the non-alcoholic drinks will serve as an alternative for those who would rather stay sober.
  • Consider serving just wine, beer and/or non-alcoholic drinks. These are not as harsh as hard liquor and will all pair nicely with dinner parties as well.
  • Just say “no” to open bars! Unlimited booze rarely brings about any good decisions, so instead opt for a cash bar or ticket system.
  • As an employer, it is important to remind your managers that they are there to assist you in making sure the party runs smoothly. They can serve as extra eyes to make sure the subordinates are behaving accordingly.
  • As we all know, inhibitions are lowered after alcohol has been consumed. People say and do things they typically would not have had they not been drinking. In cases where alcohol will be served at the party, remind employees that work conduct is still in force and disciplinary actions will be taken if employees are to act unruly.
  • Don’t hire within! Hire a professional bartender. They have the proper training when it comes to identifying people who are and aren’t of age, measuring drinks and knowing when someone has had too much.
  • Have a taxi service or hotel rooms available that are of no-cost to the employee.
  • This may sound silly, but never, under any circumstance, hang mistletoe! As mentioned in No. 4, inhibitions tend to get lowered when people are intoxicated, and the last thing you want to see at the company holiday party is two co-workers letting loose under a green plant hanging from a doorway.

For more information about office parties and avoiding a lawsuit, please visit www.laborlawyers.com.