|Tyler Rasmussen is an associate of Fisher & Phillips LLP, practicing all areas of labor and employment law.|
New technology and labor regulations mean new hiring and employment issues for manufacturers. From smart devices and OSHA to protected categories and social media, employers have more to remember than ever before. Labor and employment law attorney Tyler Rasmussen of Fisher & Phillips LLP discussed these new issues with Food Engineering.
TF: When interviewing a candidate, what kind of questions cannot be asked? What are questions employers should be sure to ask?
TR: I think one trap many employers fall into is not knowing what information they’re actually looking for. One common question is, “What year did you graduate high school?” But in federal law, deference is given to individuals over the age of 40, and age is a protected category. By asking what year a candidate graduated high school, you’re in essence eliciting information regarding age, a protected category.
What the employer really wants to know is, “Did you graduate high school?” That’s an example of a perfectly fine question as opposed to “What year did you graduate?”
An employer should also ask individuals, “Can you do the essential functions of this job?” as opposed to asking questions that could involve any disability or injuries they may have. As an employer, your concern is an applicant’s ability to do the job, not any latent disability you may not know about.
TF: What residency qualifications are required to work in a food manufacturing operation? How do those qualifications affect background checks?
TR: It varies by situation, but you have to make sure the employee is eligible to work within the US through E-Verify or I-9 forms. There are many different types of work visas and qualifications the government can hand out, and the most important thing is to examine the documentation and not just take an employee’s word. If there are questions regarding the information, you can contact the government and ask those questions
TF: What are some new concerns for manufacturing operations with the proliferation of smart devices? How can employers protect data on these devices?
TR: OSHA has strict regulations for cell phone use. Additionally, a big hidden issue with this on a wage-hour front is hourly, non-exempt employees taking home smart devices. You technically have to pay them for all the work they do, so if they’re answering emails or phone calls and checking up on things on their smart device, even if it’s after hours, you need a way to track that and pay the employee.
Additionally, any time you have confidential and proprietary information, the employee should sign a confidentiality agreement or a trade secret agreement, although you have an affirmative duty as the employer to protect that trade secret information so it’s not readily available to the public.
Any time you have an individual with a smart device going out in the world, you need some safety protocol to ensure any confidential information on that cell phone doesn’t get disseminated. That could mean a wipe function that allows data on the device to be removed remotely if lost or ensuring you absolutely get that cell phone back when the employee is terminated or resigns.
TF: What are the issues associated with employee use of social media? What are the limits on restricting employees’ social media content? Are there privacy issues involved?
TR: This is tricky. We’ve really seen an explosion of this, not only with employees being on Facebook and Twitter but companies themselves having Facebook and Twitter accounts and having the employees run them. The most important thing here is to establish the policies and guidelines at the onset, in your employee handbook or a standalone policy, laying out the company’s rules and regulations regarding Internet usage.
I really see this as two separate issues. One is using Facebook and Twitter during working hours, and you have the ability obviously to limit employees’ access to that because when they’re working for you, they shouldn’t be doing work on Facebook.
Additionally, you may have some protection if an employee who is acting as a representative of the company acts maliciously, and it hurts the company. If an employee says on social media, “I’m an employee of X Company, and we hate all our clients,” you may have a cause of action against the employee for that. It’ll be dealt with on a situation to situation basis, and you have to make sure you balance that employee’s first amendment rights especially if the incident was outside work hours. But the company has to be aware that it does have some protections, and it has to be careful when enforcing the law on them.
TF: How can employers be sure data is protected when an employee leaves a company?
TR: Some employers don’t monitor every employee email but have the IT department flag emails over a certain size. By monitoring the email sizes, you may be able to flag times when employees are personally emailing out large company documents—confidential client lists, prices, etc.—to themselves for use in the future. When an employee is terminated, there’s not as much of a concern of data or company property theft because a lot of times it’s somewhat of a surprise. Maybe if it’s a really high-ranking individual, you escort them out to make sure you get your documentation back.
It really becomes an issue when employees resign, because they know they’re going to resign in advance, and you may have no idea they were sending themselves company documents for use in their new job. You need to make sure that if employees are going to be dealing with confidential or trade secret information that they’re signing confidentiality or trade secret agreements, they’re aware of what constitutes confidential and trade secret information, and you’re doing something to protect the data so you have the ability to use it to go after them in the future for violations of that trade secret agreement.
TF: What steps can employers take to limit liability in the case of an on-the-job employee injury with regard to ergonomics, signage and machine safety?
TR: Policies and procedures have a large role to play in laying out how on-the-job injuries are to be dealt with. Whether it’s an injury and illness prevention plan or your employee handbook, it’s important to make sure your managers and employees understand it because they’re going to be the ones handling these issues on a day-to-day basis.
Any time you have a workplace injury, there’s an intersection of a large variety of laws, including OSHA regulations, the ADA and Fair Employment and Housing Act and the FMLA. You should be very sure everything is well documented if an injury does occur, that you have an open line of communication with the employee and that you’re alerting your worker’s compensation program.
To limit potential injuries in the workplace, you want to comply with all OSHA standards to make sure everything has proper safety functions like signage, wash stations and things of that nature. And you want to make sure you’re up to date on your injury and illness prevention plans.