Avoiding unique employment law challenges posed by the Generation Y work force

By Lonnie Giamela, lgiamela@laborlawyers.com

Generation Y workers, defined as those individuals born between 1977 and 1995, are becoming an increasing part of our workforce.  These individuals occupy a wide variety of positions from cashiers at a retail store, to warehouse employees at a distribution center, to administrative employees at a corporate office.

This younger generation of workers presents challenges based on their desire for autonomy, flexibility, recognition and ability to balance work and family. Their established societal norms on what is considered proper and appropriate has demonstrated a tolerance for conduct that may have been shunned not just 50 years ago, but 10 years ago. One need only compare the interaction between the sexes on television shows such as “I Love Lucy” and “The Cosby Show” with “Jersey Shore” and “Sex and the City.” This tolerance of conduct by Generation Y employees has spilled into the workplace in the form of violations of anti-harassment and similar policies.

Recognizing the unique challenges posed by this group of employees along with a depressed economic climate and increase costs associated with litigating such claims, a heightened emphasis must be placed on preventative measures that will reduce risk and strengthen a retail company should it need to assert or defend its interests in litigation. The following preventative steps are recommended for those in the chain store industry, to minimize risk and protect interests:

1. Implement stringent confidentiality agreements: Employee defection has become a recent “hot button” topic in HR and companies must do whatever is lawfully necessary to protect confidential information and trade secrets. Such action includes, but is not limited to, requiring employees to sign confidentiality and proprietary inventions agreements. These agreements should not just be limited to individuals in upper management, but should be provided to any individual who has direct, or indirect, information to a company’s confidential information and trade secrets. All too often, non-managerial employees will frequently use tiny mobile storage devices to download information and transmit information to a third-party for his/her own personal benefit. These employees have access, but no need to access, the important information.

2. Revise computer/email/Internet policies to acknowledge the use of social networking sites: Employees have increased personal use of the Internet while at the workplace. A recent study found that almost two-thirds of Generation Y employees have either intentionally or unintentionally viewed a pornographic website while at work. Perhaps more problematic are opinionated employees who draft blogs post messages on websites, or maintain their Facebook pages while at work.  This content usually contains inappropriate, offensive or unprofessional comments that may unnecessarily subject companies to liability. Employee handbooks should have comprehensive policies on Computer Use In The Workplace and Social Networking. With respect to the latter, employers have the right and should implement policies limiting usage or reference of their names, for professional and/or non-professional purposes, on employees’ social networking sites.

3. Determine whether “love contracts” are necessary: Almost half of the Generation Y workforce has been involved in a workplace romance while approximately one-fifth have been involved in two. Thirty percent of workplace romances end up in marriage which means that more than two-thirds fail. These failed romances may eventually evolve into workplace violence incidents. Companies must protect themselves against potential harassment suits and conflicts of interest by documenting relationships within the workplace and prohibiting a manager from supervising an employee whom the manager oversees. The document, commonly referred to as a “love contract,” requires employees to acknowledge that they have voluntarily entered into a relationship, are aware of the company’s zero tolerance policy towards harassment and agree that they shall notify the Company should any such conduct occur in the future.

4. Be mindful of meal/rest break policies and the energetic employee who always wants to “work through lunch”: Wage/hour lawsuits are increasing rapidly and employees are not hesitating to challenge their employers’ policies on meal periods, rest periods and overtime. Such violations include intentional violations where a Company does not recognize state laws (if applicable) and unintentional violations where eager non-exempt employees seek to increase performance by eating at their desk and working through lunch. Violations of meal period laws, in states where such laws exist, occur as frequently in a retail store setting than in any other industry. Employees either elect to, or choose to based upon persuasion from a manager, to delay or refrain from taking a meal period because of a high level of customers in the store. Employers must ensure that handbooks contain proper policies, that any waiver of meal periods permitted under state law is authorized in writing by the employee and that managers are trained on how to coordinate subordinate’s schedules to ensure compliance regarding same.

5. Prioritize exit interviews for employees with confidential information: Develop a comprehensive exit interview procedure by which managers retrieve all documents and electronic records containing the company’s confidential information and secure the exiting employee’s written assurance that everything has been turned in and electronic copies permanently erased.

6. Review offer letters to ensure that “at-will” language is contained therein: Each offer letter of employment should confirm to the individual that employment will be on an at-will basis and that nothing in the offer letter is intended to create an implied term of employment or any guaranteed length of employment.

7. Update handbooks on a regular basis: Recent studies have found that more than half of HR professionals are not sure what exactly should go into a Policy Against Harassment or Equal Employment Opportunity Policy. These studies show increased concern over policy drafting in companies that have operations in many states. With revisions to the Family Medical Leave Act and recent case law expanding employer obligations in fair employment and wage/hour matters, it is important that companies update their handbooks because it is the most useful document in litigation defense. Companies that have not updated their handbook in the past two years are very likely to have a handbook that is not in compliance with applicable state and federal law.

Lonnie Giamela is a partner in the Los Angeles office of national labor and employment law firm Fisher & Phillips LLP (laborlawyers.com). He can be reached at lgiamela@laborlawyers.com.