Discussions in our HR Base Camp Facebook Group over the last week covered employees discussing (and gossiping) about pay rates, pregnant employees working around nitrous, COVID return-to-work guidance, and more. Here’s a summary of some of the top conversations:
When employees are discussing pay rates (and lying to each other about them):
This member was frustrated with an employee who was talking about their salary. Not only was this employee talking about their salary, they were lying about what they and another employee are being paid.
Answer: One of the protections afforded to all employees in all circumstances is the right to discuss their benefits, wages, and working conditions. The law is called the National Labor Relations Act, and the National Labor Relations Board enforces it. A policy that forbids the discussion of wages violates federal law. Simply possessing the policy and displaying it can get you in a bunch of trouble. Using it and firing or disciplining an employee because they violated a “no discussing salaries” policy is a gift to the opposing counsel.
The cost to the business for violations concerning protected activities can be astronomical. In fact, in 2010, The Texas State Dental Association ran afoul of the NLRA. Here is a link to the details and the 900k settlement. While the protected activity in that case is different (filing a complaint against management vs. discussing pay), it’s still the same kind of violation.
I am also providing a second link that explains the NLRA in more detail.
When it comes to the issue of exaggerating pay rates, while this doesn’t change the fact that you can’t reprimand the employee for talking about wages specifically, you can still address this in a proactive way. Acknowledge that they’ve been discussing this, and ask them if they have any concerns. The key is to focus on the fact that they were lying to other employees rather than the fact that they were discussing pay. You can address the fact that lying to others can lower team morale and cause distractions. Keep in mind that there may be several reasons the employee was motivated to lie about this. This could be a good opportunity to address any issues they have with their own pay and talk about solutions together.
As an aside, we don’t recommend having a “no gossip” policy either. Just like a “no wage discussion” policy, “no gossip” policies can be seen as a way to freeze employees’ speech, therefore violating the NLRA. We know this is a tricky spot to be in – no one enjoys office gossip! However, it’s safest to address issues like this on a case-by-case basis as opposed to having a blanket policy that can overlap with the rights the employee has under the NLRA.
Protecting your practice and your pregnant employees; how you could be breaking the law:
A doctor at a private practice made the decision to reassign a pregnant dental assistant to avoid them coming in contact with nitrous oxide. This decision was made without the employee making a request for this change in their job duties and the employer was looking for help navigating this situation.
Answer: The year before COVID hit, we were invited to sit on a board of expert advisors for the ADA. They put together a comprehensive guidance package about pregnancy in the workplace. Originally it was focused on just the doctors, but it was expanded to also address employees. We informed them of the following and they used this guidance to help steer conversations about pregnancy and accommodations in the workplace. We can’t speak directly to this specific situation because we do not know if the employee has already been informed of the potential dangers of working with nitrous. If the practice has CEDR’s handbook, the employee has already been informed and the following guidance would likely stand.
While the provider may have had the best intentions, changing the employee’s duties is actually a violation of federal law. Because the employee’s job duties were changed based on pregnancy (even though the employee did not request the change), this would be considered discrimination based on sex/pregnancy. In addition, to remain compliant with ADA standards, an employer should not tell an employee that they can’t work with nitrous without first receiving a note from the employee’s OBGYN, as it is up to the employee to request the accommodation.
As mentioned above, our recommendation is to inform the employee of the potential dangers of working with nitrous and let them know that they should come to you with any concerns. For example, CEDR does this by having a “Notice of Potential Exposure to Toxic Substances” policy in the handbook. If you have something similar, you can share the policy with the employee. Once you communicate this information to your employee, it’s their decision if they want to request an accommodation moving forward. In the meantime, if nothing has been requested, the employee should continue being assigned the same job duties as they normally would.
To summarize: 1) Make sure that you have an acknowledged policy that informs employees of the dangers. 2) Once an employee is aware of the issues, it is up to them to talk to their provider. They should then come to you with an ask for any accommodation based on a reasonable medically supported reason. It is OK if you want to tell an employee and/or reiterate to them that you have a concern. But we are also saying that you cannot automatically make assumptions, no matter how well-intended, that may affect a pregnant employee’s ability to do their job… If you have doubts that the employee is seeking and/or following the best guidance, there are ways to mitigate the dangers to her and your practice.
Hiring a temporary fill-in dentist doesn’t mean you get to skip the proper paperwork:
A private dental practice owner wanted to know the right way to pay a dentist who has their own practice and is just filling in on a temporary basis.
Answer: A dentist, however temporary or for whatever reason, is an employee. It’s important to note that as an employee, regardless of all other considerations, you have to meet the same obligations you would for the rest of your employees. It would be smart to have them fill out your new hire paperwork and sign your employee handbook. We also recommend and can provide a well-developed Associate employment agreement to have in place with all dentists.
Your COVID Questions Answered
The CDC’s most current COVID return-to-work guidance for Healthcare Professionals:
One employer was looking for an update on the current CDC return-to-work guidance for healthcare employees after an employee tested positive for COVID.
When you have to pay for employee COVID tests:
A member was wondering if they were required to pay for an employee’s at-home COVID test and/or the time it takes them to get the test.
Federal COVID pay expired but some states (like Colorado) have other requirements in place:
This employer was looking for an update on Colorado’s laws regarding paying for employee time off due to COVID.
Answer: FFCRA expired September 31, 2021. This means there is no federal COVID pay program in place. Colorado does have a Public Health Emergency (PHE) Leave law that is active during a declared public health emergency, however. Note that this is in addition to state mandated sick leave. PHE leave has been active since January 2021 and requires all employers to provide employees with two weeks (based on the employee’s work schedule) of emergency sick leave.
How does New York Paid COVID sick leave work? What if one of those sick days falls on a holiday?
This member needed guidance on COVID paid leave regulations in New York and was unclear on if those laws applied differently to full- or part-time employees, as well as how the regulations applied when one of the sick days fell on a paid holiday.
Answer: New York’s COVID paid sick leave is available to all employees, regardless of status. Employees should receive pay for days they would be regularly scheduled to work. If the employee’s time off falls during the same week as a holiday, the holiday would not count as one of the 5 days since they would already be getting this day off/paid.
We know sick laws can be confusing, especially in states like New York where multiple laws come into play. That’s why a Solution Center membership is so beneficial. Not only do we keep you updated on any changes to these laws as they happen, but CEDR members can also get step-by-step guidance for each employee’s specific scenario, ensuring that your staff receives the benefits they are entitled to and you are in compliance.
