Are your employees gambling at work? With the Super Bowl and NCAA basketball tournaments coming up, it’s almost a sure bet that at least some employees are gambling on sports during company time, using company equipment. Sometimes, employees don’t wait for major sporting event to gamble, instead betting on the Oscars, American Idol, and coworkers’ pregnancy due-date pools. While employees see betting pools as harmless fun, employers can be the big losers due to the drain on productivity and resources as well as the legal issues that go with employees gambling at work.

HR Guide to Employment Law: A Practical Compliance Reference

Productivity takes a time out
In a 2011 Vault survey, 56% of respondents said they spent 30 minutes or less discussing, researching, or making picks for an office betting pool. A few admit to spending considerably more time on office gambling — 4% spent 1-2 hours, 2% spent 2-4 hours, and 1% spent more than 6 hours. Only 63% of survey participants who admitted to gambling at work were willing to reveal how much time they actually spend on it — even in an anonymous survey. A few quotes from survey participants suggest that those in the unaccounted for 37% are spending more time than they want to admit on office pools:

• “I have seen coworkers not do ANY work at all, ALL day long.”
• “Almost no work gets done in the office during March.”
• “Zero office time — that’s stealing.”

Now consider this: In 2007, consulting firm Challenger, Gray & Christmas crunched the numbers (mainly figures about the national employment rate and average pay) and estimated that American employers lose up to $16 million for every minute their employees spend focused on the Super Bowl.

Gambling with team spirit
Some employees, employers, and company leaders see office betting pools as a way to foster camaraderie by giving employees a fun outlet to socialize and interact with one another. In the Vault survey, 78% of participants said it was appropriate to have office betting pools and only 22% disagreed. Elaborating, one survey respondent said, “March Madness is a great team builder, engaging folks from the office, plant floor, shipping/warehouse, remote sales offices, and even a few customers and vendors.”

On the other hand, there are those employees who might agree with the survey participant who complained, “My office is awash in sinners. Some day a real rain will come and these cubicles shall be cleansed.” While all workplace-gambling dissidents may not take such a hard line, it is a safe bet that the time wasted on these betting pools irks employees who don’t participate and instead keep their nose to the grindstone.

Illegal moves
In many states, gambling at work is illegal. For instance, in Kansas it can be a class B misdemeanor. Also, many states have gaming commissions that closely regulate gambling events. In other states, gambling at work resides in very gray legal area. For instance, in Colorado most gambling is illegal but betting pools in the office are an exception to the definition of illegal gambling so long as the pool is “incidental to a bona fide social relationship.”

While it’s true that local law enforcement probably isn’t concerned with an office betting pool, there have been instances to the contrary. Notably, in 2002, a middle manager at AT&T was arrested for allegedly taking a 10 % cut — about $3,000 — from a football office pool in New Jersey. The pool at issue was advertised in office e-mails, and a coworker allegedly turned the employee in to the police. The worker was charged with promoting gambling and faced up to five years in prison. While participants in small office pools with low stakes are unlikely to be arrested, it’s never a good idea for a company to condone criminal activity of any kind in the workplace.

Also, there have been several cases in which an employee sued an employer, trying to hold it liable for financial losses. Basically, the employees claimed that employer-approved office betting pools were unavoidable and triggered them to relapse in their gambling addictions, which caused them to lose money.

Could March Madness be a disability?
The National Council on Problem Gambling estimates that two million American adults are pathological gamblers and another four million to eight million qualify as “problem gamblers.” Given the expanded definition of “disability” under the Americans with Disabilities Act (ADA), those numbers should give employers a reason to pause and wonder if gambling addiction could be considered a disability.

The short answer is “no.” Congress expressly excluded compulsive gambling, along with kleptomania, pyromania, and various psychological disorders resulting from current drug use, from the ADA’s definition of “disability.” However, there is still room for concern. Employees who are addicted to gambling are more likely to borrow money from coworkers, be distracted from their work, and have attendance problems.

ADA Compliance : Practical Solutions for HR

Best offense is a good policy (defense)
Depending on the laws of the state, an organization that chooses to allow gambling at work should specifically define what is and isn’t acceptable in a policy. An organization that chooses to prohibit gambling at work should adopt a strong policy and stick to it. Here are several points to consider when writing a gambling policy:

• Define gambling or the type of behavior that is restricted.
• If gambling is illegal in the state, emphasize that point.
• Communicate that gambling can be a problem for employee productivity and morale.

Once the policy is in place, it should be distributed to all employees and included in the company handbook. Only 10% of the Vault survey respondents said their employers had a policy on betting pools; 43% said there was no policy; 47% weren’t sure.

One participant’s response shows that even when employees know about the policy, gambling often still goes on, “It is not tolerated . . . so you have to do it secretly.” In that case, employers should be prepared to discipline all violators (at least one case taken to the federal level hinged on an employee’s claim that he was disciplined for gambling while others of different races were not). The gambling policy also should be coordinated with the organization’s discipline program, carving out specific behaviors that are subject to discipline and termination.

Game over
Allowing gambling at work — by virtue of not having a policy, not enforcing the policy, promoting gambling, or just ignoring it — leaves an organization open to hits from all sides. Therefore, if gambling at work isn’t banned altogether, it should be approached cautiously and thoughtfully.

Q: Can an employer send an employee who is returning from Family and Medical Leave Act (FMLA) leave to a company-appointed physician for a second opinion to verify that he is able to perform the essential functions of his job?

A: No. The FMLA doesn’t permit an employer to request a second or third opinion on whether an employee is able to perform the essential functions of his job. The certification from the employee’s health care provider satisfies the requirements for the fitness-for-duty certification requested by the employer.

FMLA Complete Compliance

FMLA leave
Under the FMLA, an employee is entitled to reinstatement to his former job or an equivalent position upon returning from leave. However, the right to job restoration is qualified, not absolute.The FMLA doesn’t require you to reinstate an employee who is unable to perform all the essential functions of his preleave position at the time he seeks to return to work.

As a condition of reinstating an employee whose FMLA leave was occasioned by a serious health condition that made him unable to perform his job, you must have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to obtain and present certification from their health care provider that they are able to resume work. An employee has the same obligations to participate and cooperate in the fitness-for-duty certification process (including providing a complete and sufficient certification to the employer or authorizing his health care provider to give the information directly to the company) as his employer had in the initial certification process.

Limitation on certification
You may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. The certification from the employee’s health care provider must state that he is able to resume work. You may require that the certification specifically address the employee’s ability to perform the essential functions of his job. To require such a certification, you must provide the employee with a list of the essential functions of his job and indicate in the designation notice that the certification must address his ability to perform those essential functions. If you satisfy these requirements, the employee’s health care provider must certify that he can perform the identified essential functions of his job.

Clarification
You may contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. You may not delay the employee’s return to work while clarification with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required.

Intermittent leave conditions
Additionally, the FMLA bars employers from seeking fitness-for-duty certification from employees returning to work after taking intermittent leave. Employers haven’t responded favorably to this policy because it raises safety concerns about whether employees are actually ready to return to work. In a recent survey by the U.S. Department of Labor (DOL), several employers stated that particular safety concerns inherent in their workplaces necessitated that they obtain clear information regarding an employee’s ability to safely return from leave. The employers suggested that the DOL should delete or revise the regulations so that companies would have the right to seek fitness-for-duty certifications from employees returning to work from intermittent leave.

Bottom line
The FMLA requires employees to submit fitness-for-duty certifications from their own health care providers upon request when they return from FMLA leave. You are not permitted to send employees to a company-approved health care provider for a second or third opinion.

Independent contractors, by definition, are self-employed. Because they aren’t employees, they aren’t covered by employment, labor, and related tax laws. As a result, some employers may be tempted to reclassify employees as independent contractors to avoid taxes, benefits, record-keeping requirements, overtime, and other expenses.

Wage and Hour Compliance Manual

Contractors are a popular solution
Does your organization use independent contractors? More and more of you do, for lots of reasons. Technological advances that allow more off-site work and work from home have forever changed the workplace landscape, resulting in many categories of jobs that can be performed more independently than in the past. Many workers want flexible schedules that afford better work-life balance, and they prefer an independent contractor relationship for that reason.

And then, of course, there’s the economy. Independent contractors are appealing to cash-strapped employers for many reasons — no payroll taxes, no benefits, and no need to worry about pesky matters such as Family and Medical Leave Act  (FMLA) leave and wage and hour compliance. And if a contractor isn’t working out, you can just terminate the contract without worrying about receiving a charge from the Equal Employment Opportunity Commission (EEOC) in the mail.

The problem is a worker isn’t an independent contractor just because you’ve classified him that way, even if he agrees and even if you have a written contract. The law determines who is and isn’t an independent contractor, and if your workers don’t meet the legal definition used by whatever agency or court is looking at the issue, you’ll be charged with all the taxes and wages you should have paid, possibly going back several years.

And make no mistake, contractor misclassification is a front-burner issue for federal and state enforcement agencies right now. State agencies administering unemployment compensation funds will likely aggressively seek premium payments for as many covered workers as possible. Likewise, the IRS is looking for every dime of revenue it can get. Meanwhile, the U.S. Department of Labor (DOL) continues to take an increasingly aggressive position on contractor misclassification, and new federal legislation that would make employee misclassification a separate violation of the Fair Labor Standards Act (FLSA) has been introduced.

Economic independence and control are key
All of this spells very bad news for employers that incorrectly label employees as contractors. But how do you know if you’ve correctly classified your independent contractors? The criteria vary under different enforcement schemes, but the two main concepts to keep in mind are economic independence and control.

A true independent contractor is in business for himself and, as such, can suffer a profit or a loss. In other words, he isn’t economically dependent on the employer. Likewise, a true independent contractor is responsible only for producing a certain result and will not be subject to close supervision and control by the employer. So if you demand an exclusive relationship with a worker, tell him when, where, and how to do the work, and provide him with equipment to perform the work or reimburse his expenses, what you have on your hands may be an employee, not an independent contractor, despite that 1099 form. As always, when in doubt, seek the advice of an experienced employment attorney.

Kara Shea is the editor of Tennessee Employment Law Letter and a partner with Miller & Martin PLLC, practicing in the Nashville office. She can be reached at (615) 244-9270.

The answers are specific to individual employers and employees, but survey data provide some insights.

A survey from Right Management, the talent and career management segment within ManpowerGroup, shows widespread employee discontent. But other studies show how employers can capitalize on opportunities today’s workplace presents.

The Right Management survey of more than 1,000 employees in North America, polled between October 15 and November 15, 2011, provides a wake-up call for employers that think that their employees are just grateful to have a job and aren’t looking to move on.

Eighty-four percent of the employees polled said they plan to look for a new position in 2012. That’s the same level of discontent in the workplace reported in the survey a year ago. Like the previous year, only five percent plan to stay in their current position.

Responses to the 2011 and 2010 surveys are quite different from the 2009 survey, which showed that 60 percent of employees intended to actively look for a new position and 13 percent said they planned to stay in their current job.

The findings show worker distrust in management as well as diminishing job commitment, according to Right Management Executive Vice President Bram Lowsky.

“It’s a workplace equivalent to whether or not ‘the country is moving in the right direction.’ Sometimes called ‘flight cognition’ by behavioral psychologists, intent to leave is far from an unusual phenomenon, but when it applies to four out of five employees for two years running, it has to be of top concern to senior management,” Lowsky says.

Employers should be on notice, Lowsky says, because when the job market picks up, employers should expect to lose some top contributors, and “top management can’t hope these challenges will go away on their own.”

Lowsky urges management to identify top performers and have constructive career discussions with them. “These kinds of people always have career options. It’s your job to know who they are, to let them know you know who they are, and to tune in to their individual motivators in order to hold onto them.”

Even though the Right Management survey shows discouraging statistics for employers eager to hold on to top performers, other surveys reveal a glimmer of hope related to the workplace. A study released on November 30 by staffing company Randstad shows that 74 percent of U.S. workers believe their companies have great futures. That’s in spite of the fact that 48 percent of those surveyed believe their companies will cut benefits and 41 percent believe their employers will lay off workers in 2012.

Like the Right Management survey, the Randstad Employee Attachment Index shows many workers are looking to change jobs. The quarterly Randstad index measures employee engagement and retention. The latest index indicates that a few more employees claimed to enjoy going to work in the most recent quarter, but slightly more also would accept a new job offer in the next six months.

The Randstad index also shows an increasing gap between the most and least engaged employees. “Companies want to successfully engage as many employees as possible to maximize productivity, and they need to particularly focus on those workers who are most engaged and, thus, most valuable,” says Joanie Ruge, senior vice president and chief employment analyst for Randstad U.S.

Ruge says the Randstad research shows that 33 percent of the most highly engaged employees are likely to leave their companies if offered an enticing new job, and 30 percent would seriously consider another job offer. “This is a serious threat to employers as the economy recovers and as more jobs become available,” she says.

Another recently reported study, this one from the Sloan Center on Aging & Work at Boston College, reports that employees 40 years old and older are the most engaged and demonstrate the highest level of organizational commitment. Employees 50 years old and older are the most satisfied with their jobs, according to the study.

The Generations of Talent Study gathered data about work experiences from 11,298 individuals working for seven multinational companies at 24 worksites in 11 countries.

“A higher percentage of employees in the United States are aged 40 and older as compared to those in both old-developed and young-developing countries,” says Dr. Natalia Sarkisian, principal investigator. “In both old-developed and young-developing countries, workers in this age group report higher levels of engagement, organizational commitment, and job satisfaction than younger employees.”

The study also shows that while job satisfaction is highest among employees who are 50 and older, it’s nearly as high among those who are younger than 30. Employees between 30 and 39 show the least satisfaction with their jobs.

Sexual harassment policies
Boyd Byers a partner with Foulston Siefkin LLP in Wichita, Kansas, says attention to sexual harassment policies should top the list of resolutions this year.

“The Penn State debacle should serve as a wake-up call to every employer in America to resolve to devote time to carefully re-review its sexual harassment policy, revise it if necessary to ensure that it contains instructions on how to report, and mandates that every employee report any suspected sexual harassment,” Byers says. Also HR should make sure all managers are trained about what to do if they receive a report or otherwise learn about sexual harassment.

Social media and the workplace
Another hot-button issue for 2012: employee use of social media. The debate over employees’ use of social media heated up in 2011, with the National Labor Relations Board (NLRB) issuing a report on its investigations of 14 cases involving the use of social media and employers’ social and general media policies.

In four of the 14 cases, the Board’s Division of Advice found that employees were engaged in protected concerted activity because they were discussing terms and conditions of employment with fellow employees.

Byers suggests that in 2012 HR “should resolve to formulate a strategy and policy for dealing with employees’ use of social media in a way that could impact the employer.”

Classifying employees
Mark Adams of Jones Walker in New Orleans suggests that HR professionals resolve to audit exempt and nonexempt classifications and reclassify employees if necessary.

ADA Amendments Act
The ADA Amendments Act (ADAAA) is another area employers should consider in the new year, according to Bradd N. Siegel with Porter Wright Morris & Arthur LLP in Columbus, Ohio. Since the definition of covered individual with a disability has been expanded, employers need to take a look at who might be entitled to reasonable accommodations.

Siegel says the Equal Employment Opportunity Commission (EEOC) has been aggressive in its enforcement activities related to the ADAAA. “I believe that, as a result, employers should review their employee handbooks and policy manuals to ensure that they contain a prominent ‘reasonable accommodation’ policy,” he says.

Siegel says policies should acknowledge the employer’s reasonable accommodation obligations and advise employees of the process to follow if they might need an accommodation in connection with any work-related issue or with regard to the application of any company policy, including but not limited to those dealing with attendance and leaves of absence.

Siegel reminds employers that they should make sure all supervisors and managers are aware of just how significantly the law has changed and that they must ensure that every stage of the interactive process, from the first request for possible accommodation to the ultimate resolution of the issue, is appropriately documented.

The Genetic Information Nondiscrimination Act (GINA) is another area deserving of consideration in the new year, Siegel says. Employers should make sure that the “safe harbor” language in the EEOC’s GINA regulations gets attached to any request for medical information whether in connection with a Family and Medical Leave Act (FMLA) request or as part of evaluating an employee’s request for possible accommodation.

That safe harbor language spells out that employees and applicants are asked to not provide any genetic information when responding to any employer request for medical information such as pre- and post-offer medical exams and fitness-for-duty exams.

One of Siegel’s Porter Wright partners, John M. Stephen, suggests resolving to review and update the company’s affirmative action plan and its outreach efforts for veterans and disabled individuals in anticipation of increased enforcement activity by the Office of Federal Contract Compliance Programs (OFCCP).

Attorney Peter D. Lowe recently spoke about workplace substance abuse, including statistics, effects, and guidelines for creating workplace policies to minimize or prevent problems.

50 Employment Laws in 50 States, including substance abuse

Effects of Workplace Substance Abuse
Employers have many concerns regarding workplace substance abuse — and rightfully so. Lowe said it has been “calculated that American businesses lose $82 billion a year in productivity through the effects of impairment in the workplace through drugs and alcohol.” According to Low, other negative effects employers say are their biggest concerns include:

• danger to employees and the public,
• increased workplace accidents,
• more absences,
• decreased productivity, and
• lower morale

So what can you do to combat these issues? Does your workplace have an alcohol and drug policy?

10 Tips for Your Business’ Alcohol and Drug Policy
When crafting your policy, here are 10 guidelines Lowe suggests.

1. Include clear rules for illegal drug and alcohol use and possession. It’s important to differentiate between legal and illegal drugs. Employers should pay special attention to state laws on medical marijuana.
2. Address workplace possession and impairment resulting from legal drugs such as medical marijuana or prescription drugs. Lowe noted, “We want to be able to provide clear guidance for employees and our supervisors on how to address the impairment issues from legal drugs.”
3. Address the use of prescription drugs for safety-sensitive positions. Between 2000 and 2007, the prescription of opinoids (found in common painkillers) increased by almost 50 percent in the United States. Additionally, abuse of such drugs has become more prevalent. Fitness-for-duty certifications may be necessary, especially for safety-sensitive positions.
4. Specifically define “impairment” and/or “under the influence” in your policy. The specifics of your policy also need to take into consideration that legal drug use — such as prescription painkillers — can cause impairment.
5. Include the “direct threat” standard from the Americans with Disabilities Act. (The EEOC’s ADA regulations explain that a “direct threat” is a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation.) This legal standard may be the rationale for removing an employee from a safety-sensitive position, regardless of the cause of the impairment.
6. Always put safety first, including adopting policies for getting an employee who is under the influence to their home. Consider administrative leave as an option while a fitness-for-duty evaluation is conducted, particularly if the employee is under the influence of legal drugs such as medical marijuana (in states where it’s legal) or prescription drugs.
7. Develop clear and consistent consequences for policy violations.
8. Address employees covered by federal laws such as the ADA and the Family and Medical Leave Act (FMLA).
9. Use language that explains the concept of reasonable accommodations. Lowe noted that “the ease of establishing a disability has greatly been increased by changes to the ADA, and . . . the bar gets set lower and lower on establishing a disability.” Past drug addiction, for example, can be classified as a disability that may require reasonable accommodations such as intermittent leave for medical treatment. A current user of illegal drugs, however, is not disabled. An alcoholic — either using or in recovery — is disabled. That said, reasonable accommodations don’t include lowering performance standards, excusing misconduct, or tolerating absenteeism or tardiness.
10. Intersect your policy with any drug- and alcohol-testing program you have in place.

Peter D. Lowe is a partner at Brann & Isaacson in Lewiston, Maine, and a member of the Employers Counsel Network. He is editor of the Maine Employment Law Letter. He provides advice and counsel on labor and employment law and education law and advises clients on personnel practices and employee relations matters.

Purchase a CD of Peter Lowe’s presentation on “Employee Alcohol and Drug Abuse”

Are you aware of the Americans with Disabilities Act (ADA) accommodations and accessibility standards for the vision- and hearing-impaired under the new ADA regulations?

Employment law attorney Jonathan R. Mook of DiMuroGinsberg and Jon Mires of the Center for Accessible Technology recently outlined some basic ADA requirements, described common barriers to accessibility, and provided helpful tips for making your website meet the requirements of the latest ADA regulations.

ADA Compliance: Practical Solutions for HR

Website ADA requirements
Mook noted that the ADA nondiscrimination requirement “means that employers need to make accommodations to individuals with disabilities in order to enable them to participate in the workplace.”

The accommodation process starts before employment even begins by making the application process accessible for applicants. Mook explained, “You have to make sure that if you do online applications . . . the application process is accessible to individuals with disabilities. That can certainly include individuals who are blind, who have hearing impairments, [and] individuals who have low vision, and [who] therefore maybe need some type of accommodation to make applications online.”

Making the application process accessible is one type of reasonable accommodation. After you’ve hired someone, other types of reasonable accommodation could include:

• Enabling employees to perform their essential job functions — for example, by providing accessible computer or other electronic equipment.
• Facilitating communication among employees — for example, by ensuring that meetings, including those held electronically such as via webinar, are accessible to individuals with disabilities.
• Additionally, state and local governments must make goods, services, facilities, programs, or activities offered to the public accessible, including via the Internet.

HR Guide to Employment Law, including a chapter on the Americans with Disabilities Act

6 typical barriers to web accessibility
Barriers to Web accessibility for individuals with disabilities are numerous. Here are some examples:

1. Speech-recognition software used by individuals who do not have use of their hands could be incompatible with some websites’ technology.
2. Screen readers used by individuals who are blind or have low vision could be incompatible with some websites’ technology.
3. Individuals who are hearing-impaired are often unable to access information in Web videos because no captions are provided.
4. Individuals with low vision are often unable to read websites without modification of font size or color contrast.
5. Individuals with intellectual disabilities or low vision may be unable to use portions of websites that require timed responses.
6. Images or photographs that have no corresponding text cannot be interpreted.

Tips to ensure your website meets ADA requirements
ADA requirements prompt you to provide equal access to your website to prevent the issues described above. Therefore, your Web presence may require some modifications. You should allow some flexibility in how material is presented to accommodate different groups. Also, follow accepted standards and guidelines for Web accessibility, and understand the users’ needs so you can apply new technologies to meet them.

Here are some additional user situations and barriers you may need to overcome:

• Keyboard-only users primarily navigate using “Tab” and “Enter” keys. Primary accessibility barriers include controls that require mouse interaction or excessive amounts of time required to navigate pages.
• Blind users usually use screen-reader software. (Blind users are keyboard-only users, too!) Primary accessibility barriers include images and other non-text content (e.g., multimedia, Flash, etc.) without explanations and descriptive text, inaccessible forms or documents, poor page structure that is unable to be read by screen-reader software, nondescriptive links, and audio or video that starts automatically. Blind users often navigate by “link lists.” Link text should make sense out of context — for example, avoid the use of “click here” or “read more” links. To be most useful, the most specific part of the link text should appear first.
• Hearing-impaired users cannot access audio-only content. Their primary barriers are videos or audio — such as interviews or instructions — without captioning (preferred) or transcripts.
• Low-vision users encounter many different barriers. Usually these individuals aren’t using screen-reader software; rather, they’re often using other assistive technology such as screen magnification software. Primary barriers include low-contrast text, small text, instructions or information conveyed solely through color, and content that disappears off the visible area when enlarged.

These examples of barriers to eliminate are just a start. There are many other users who may have other special needs on the Web, including those with cognitive or learning disabilities or mobility impairments and speech-to-text users.

“It’s very important to make sure that the information that you are wishing to convey — particularly through a website — is accessible to individuals with disabilities,” Mook continued. “You need to go through your website and make sure that you’re not running afoul of some of these barriers that certainly may arise and are very apparent to persons who have disabling conditions.” If accessibility isn’t possible, provide the goods, services, information, etc., in alternative, accessible formats.

Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg in Arlington, Virginia, and a nationally recognized authority on the ADA. He has authored two published treatises: “Americans with Disabilities Act: Employee Rights and Employer Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.” He is an editor of the Virginia Employment Law Letter.

Jon Mires is a Web developer focusing on usability and accessibility at the Center for Accessible Technology in Berkeley, California. He has helped a wide range of organizations understand and implement Web accessibility principles, focusing on how to comply with standards and guidelines while maintaining focus on core users and technological capabilities.

Purchase a CD of the complete webinar on ADA website compliance

A recent survey of employers by HRhero.com shows varying policies on workplace gift-giving. Some respondents say they have no policy and no problems. Others impose dollar limits on gifts employees can accept from coworkers or outsiders including vendors and clients.

Some respondents reported policies that prohibit supervisors from accepting gifts from subordinates. Other policies require gifts of significant value be reported to the CEO. Still other workplaces require gifts to individuals to be turned in at work where they’re used for giveaways at holiday office parties.

Evaluate your workplace policies with the Employment Practices Self-Audit Workbook

Regardless of how an employer chooses to handle gifts, it’s important for employers to understand the pros and cons of office gift giving.

Brian R. Garrison with the Baker and Daniels law firm in Indianapolis says employers need to keep the potential negative effects of gift giving at work in mind. “However, if the company’s employees traditionally have exchanged gifts, or if the company’s employees have a holiday gift exchange, then I think it is wise for those companies to provide their employees with certain guidelines for their gift-giving,” he says.

He suggests guidelines such as:

• Structuring the program so it’s run by the employees themselves, not the company.
• Setting a limit on cost.
• Informing employees that if they want to go beyond the dollar limit, then the gift should be exchanged outside of work.
• Instructing employees that gifts must be appropriate for the workplace.
• Informing employees that participation is completely optional.

Regarding gifts to and from vendors and customers, Garrison says policies often state that employees generally shouldn’t accept gifts or gratuities for doing the job the company pays them to do. But inevitably, employees often receive nominal gifts or promotional items, and those are often excluded from a general prohibition on gifts.

“The same goes for employees giving gifts to vendors/customers/clients, and for supervisors/managers accepting gifts from employees they supervise,” Garrison says. “Also to avoid the appearance of impropriety, to steer clear of issues that could create feelings of favoritism and resentment among employees, and to avoid issues regarding disparate treatment that could crop up in a discrimination lawsuit, supervisors/managers should not give gifts to employees they supervise unless all supervisors throughout the company are doing so,” Garrison advises.

Peyton Irby with Jones Walker in Jackson, Mississippi, says whether a policy is needed depends on the workforce. A multicultural workforce will have issues of heritage or religion that can be a problem if gifts are exchanged, he says.

Some employers have cost limits and limits on the kind of gift that’s acceptable (nothing of a personal nature). Still others don’t allow gift giving in the workplace, Irby says. “Gifts from vendors are generally considered shared gifts, and many employers place a cost limit or they must be returned. There is no one-size-fits-all policy,” he says.

Robert P. Tinnin, Jr., with Tinnin Law Firm in Albuquerque, New Mexico, says he thinks in most cases policies aren’t necessary. But if there’s “a developing trend in a given workplace over a period of time causing employees to think they HAVE to give gifts,” a policy might be advisable. Also, if gifts are “getting out of hand in terms of expense” or if they’re inappropriate, a policy may be necessary.

Here’s a sampling of employer responses from the HRhero survey:

• “Secret Santa” gifts are allowed among employees who want to participate.
• Gifts from clients that can be shared with others in the office are acceptable.
• Employees are not allowed to accept gifts from vendors unless the gift is something like holiday cookies.
• Nothing valued at more than $25 from a customer, vendor, or other third party can be accepted by an employee.
• Gifts are allowed but “significantly expensive ones” must be reported to HR.
• Guidelines say no gifts can be solicited, and only gifts of minimal value, such as inexpensive cups or pens, can be accepted.
• Gifts such as fruit baskets are to be shared with a work group or donated.
• No cash or gift cards can be accepted.
• Gifts are limited to small-dollar value, and some gifts from vendors are shared in drawings with employees.
• One respondent said the workplace policy doesn’t allow acceptance of “any gift, gratuity, favor, service, compensation, discount, special treatment or anything of monetary value from any supplier, vendor, or any individual or organization doing business with our company. Exceptions to this are business-meeting meals, consumable gifts offered to an entire work group, awards for meritorious civic service, unsolicited advertising or promotional materials of nominal value.”
• Employees wishing to participate can bring gifts not to exceed $25 and then be given a ticket so they can select a gift at the holiday party. No one-to-one gift exchanges are allowed.
• Employees are prohibited from receiving gifts from customers or vendors when the gift is valued at more than $50.
• Any gift over $100 must be reported.
• Any gift of a greater value than $10 must be returned or donated to the organization.
• Another employer reported that there’s no policy and the subject has never been an issue.

Keep up with the latest developments in employment law with your state’s Employment Law Letter, a monthly publication of news and analysis of trends in employment law and HR for your state

At its heart, the Pennsylvania State University (PSU) football scandal is a criminal matter. But it’s also the ultimate example of sexual harassment being permitted to recur openly, continuously, and notoriously in a workplace. It’s a sober reminder of what can happen if any person or group believes they are bigger than the rules — immune from the consequences of violating the law and company policies.

According to a 23-page grand jury report (from which the following allegations are taken), longtime PSU Assistant Football Coach Jerry Sandusky is charged with multiple counts of sexual assaults on minors; he denies all of the charges. Secondarily,  two PSU top officials (Athletic Director Tim Curley, and Vice President Gary Schultz, who supervises the campus police) are charged with failing to report evidence of child molestation in 2002, and committing perjury to the grand jury in 2010.

Pennsylvania law (like that of most states) says that if your job or institution brings you in contact with children, you must report any reasonable suspicion of child abuse to the head of your institution, which is obliged to contact public welfare officials within 48 yours. In this case, Penn State missed multiple opportunities to report this misconduct, thereby enabling many acts of abuse that continued in the years to follow. At its heart, the conduct here is a terrible crime.

Unsportsmanlike Conduct
According to the grand jury report, since at least 1996, Sandusky engaged in an ongoing pattern of sexual conduct with young boys within the university’s football facilities. In 1998, the mother of one of the abused children complained to police about Sandusky’s conduct when her child came home with wet hair after showering with the coach. University and county police both investigated, and Sandusky admitted to showering with the child,  but, at the university police’s request, the district attorney never filed criminal charges. The next year, at age 55, Sandusky unexpectedly retired as assistant coach, but retained “emeritus” status and access to the football facilities.

In 2000, a janitor saw Sandusky having sex with a young boy. He told the other janitors and his supervisor but nobody reported it. Again, in 2002, graduate assistant Mike McQueary saw Sandusky sexually assaulting a young boy in the locker room, and reported it to head coach Joe Paterno. Paterno reported it to Curley, whose “remedy” was taking away Sandusky’s locker room keys. The police weren’t called until 2009, when another teenage boy told authorities about four years of sexual abuse by Sandusky. The grand jury investigation and report followed.

After the grand jury issued its criminal indictments last week, Paterno, the winningest coach in college football history, with the squeakiest reputation in the profession, immediately announced that he would retire at the end of the season. Later that day, Paterno was given a phone number to call, and was told that he, and PSU President Graham Spanier, were fired effective immediately.

Penn State decided to atone for 12 years of inaction by cleaning house of Paterno, Spanier, Schultz and Curley. McQueary was placed on paid administrative leave for his own safety. But it took a grand jury indictment for Penn State to act:  what went wrong?

The Untouchables
Penn State has excellent written policies against harassment — and it’s the palest of understatements to say the conduct in this case is at least sexual harassment. All PSU staff members were required to report harassment, and retaliation was prohibited. Yet, at all levels of the university, nobody would enforce those rules against the football program.

In 1998, the university police caught Sandusky; he got off with a warning. It’s no wonder that, despite the policy, the janitorial staff was afraid to report Sandusky’s sexual assault of a boy in the shower in 2002 — proof positive that Penn State’s nonretaliation policy wasn’t working.

In 2002, Sandusky’s conduct was reported to the top levels of the school, where it was again whitewashed. For the next eight years, Sandusky appeared at team awards dinners and sporting events, accompanied by preteen boys whom he met through the youth charity he created, The Second Mile. Sandusky had proven that he could brazenly get away with anything.

Sexual harassment cases come in many forms. I thought that the most egregious cases had disappeared over the years, as training, prevention, and remedies grew stronger. Penn State’s scandal shows  that outrageous abuse still exists, and human resources diligence — especially regarding the highest ranking, most powerful officials at an organization — remains critically important. It cannot matter that an offender is immensely profitable, protected, or high-profile. Powerful people and institutions often think they are above reproach; it is our job to train them that they are not.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200. He also is a featured presenter in the Stop Sexual Harassment video and online training series for supervisors and employees.

Fortney, editor of Federal Employment Law Insider, was among witnesses testifying before the House Subcommittee on Workforce Protections, which titled its hearing “Examining Regulatory and Enforcement Actions Under the Fair Labor Standards Act” (FLSA).

In addition to the “gotcha” approach Fortney sees the division taking, he said in written comments submitted to the panel that the d ivision’s Bridge to Justice program “effectively outsources to private attorneys one of the Wage and Hour Division’s most important functions — to investigate and respond to complaints of employees who have had the courage to come to DOL.”

Bridge to Justice, announced in December 2010, connects workers to an American Bar Association-approved attorney referral system when the Wage and Hour Division, because of limited capacity, declines to pursue a worker’s claim. Fortney said Bridge to Justice could be called the “Reward to Lawyers” program because he said it primarily benefits complainants’ attorneys.

Fortney also criticized the division’s decision to stop issuing opinion letters. “Previously, the Wage and Hour Division issued Opinion Letters by the Administrator that provided guidance on compliance matters, but the current administration has refused to issue Opinion Letters,” he said in his written comments.

Fortney told the panel that opinion letters are useful because determining whether workers are properly classified is complicated, and employers need individual answers. He said the IRS applies a 20-factor test for determining whether a worker is properly classified, but that doesn’t necessarily mean the worker is properly classified under the Fair Labor Standards Act. He said the DOL has even recognized that it’s possible a worker can be classified as an independent contractor under one law but as an employee under another.

Fortney also criticized the division’s proposed “right to know” regulations, which call for employers to prepare a written analysis of why a worker is excluded from coverage under the FLSA. Such requirements “hang like a 500-pound anvil” over employers, he told the subcommittee.

Fortney also criticized the division’s focus on the homebuilding industry. Targeting an industry isn’t unusual, he said, but it is unusual to take the top tier — the largest companies in the industry — when problems are more likely to be found outside that set.

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