Dashboard: Can You Fire Employees Who Won’t Return to the Office?

[Music] welcome to another 21 hats dashboard brought to you by our sponsor the great game of business I'm Lauren Feldman and I'm here with Jean Marks hello Jean hello Lauren how are you I'm doing great how are you not good not good actually yeah you sound like your uh your voice is a little bit off lost my voice and I'm still still getting over the loss of the Phillies as well I know it's behind nobody cares but it's just we're very I'm going to try and find some energy I care Jean I care uh yeah you do you do so but anyway let's get the business all right uh Jean you wrote recently that it's illegal to fire an employee who refuses to come to the office in work and it sounds like you're pretty outraged about it is is that really the case well yes and no uh here's the um here's what's going on the National Labor Relations Board um has now by the way the National Labor Relations Board is a very very Pro worker Pro Union agency of the government well it's it's designed to be that right it is so that's what it does so it's never really going to be on the side of uh of businesses for the most part um it was mostly dormant during the Trump Administration as you can imagine and uh now during the Biden Administration it's fully staffed with Biden appoin and they've been super active and uh they've been making all sorts of uh um uh helping unions with certain rules for them to unionize better and Market themselves and all that kind of stuff well anyway now the board itself U wanted as to decided to step into um a little bit of a battle um with uh with with with with Twitter or X and Elon Musk and um um employees working from home and here's what the National Labor Relations Board you know found there was an employee who uh was told to come into the office to work it was all employees right it was all employees that's correct and it was kind of I think it was done in a tweet it was like if you can physically make it into the office uh come in if not we accept your resignation kind of thing right right now I'm not going to defend the manner in which the policy is communication glad to hear that because it is a little extreme although it's kind of the kind of message I would love to give but okay he's Elon Musk um so some employees took umbrage with that they did not or one in particular did not want to come into the office uh the employee enjoyed working from home and um so then the uh the you know ultimate and and and that employee um expressed their dissatisfaction publicly on social media uh because it's Twitter so you know they have the ability to do that um the employee was fired for not coming into the office however it wasn't the wait wait it's I'm not sure it's clear that she was fired for not coming into the office it I think what the nlrb said was that she was fired because for retaliation right well but retaliation for attempting to organize other workers and encouraging them not to resign and to make musk actually fire them and to you know Mount opposition to this new policy and meanwhile musk's position is that no I said that we were going to you know you either come into the office or you know find a job elsewhere and his position is that's why he fired them uh but the nlrb um believes that it it could be otherwise and what it does Lauren though is that it does open the door I mean like let's say you're running a business right and you're you're saying look our our work from home policy is whatever you got to be uh in the office four days a week and you can work from home one day a week which is you know sounds reasonable but say you've got an employee that does not want to comply with that policy and you say to the employee that if you know you don't come in um you know you know this is part of the job you know we're going to terminate you and if the employee complains about this uh publicly in any way and the employer terminates the employee um there's grounds for the nlrb to go after that employer and saying oh you you you you terminated that employee because um you retaliated against that person complaining about you publicly it a retaliatory action and therefore all you have to do if you're an employee if you want to get around that kind of a rule is just to complain about it publicly because then you're safe because then if you get fired it can be construed as retaliation and um it's a free you know get out of jail card as it is that's the issue does that make sense well except for one thing I it the the predent that the nlrb seems to be setting here isn't just about complaining though is it it's it's about organizing that their words were specifically um that it was retaliation for an attempt to organize her co-workers not to resign so I don't think it's it's the comp just complaining about it wouldn't necessarily be ground according I think it's tomato and tomato um I I you know if an employee is either going to complain or even threaten to retaliate or to take action back or or any any actions where where the employee is um expressing their dissatisfaction with the employer and then the employer still goes ahead and fires the employee any of those you know actions can be construed to be retaliatory and therefore it puts the employer on the hook and so you know musk is such a a you know a vis ible example of this the nlrb is holding them out as an example but I think you know because of this any business big or small could be subject to the same treatment that muscot if an employee uh chooses not to comply with you know a workplace Rule and complains about it publicly or like you said uh you know says we're going to U you know I'm going to organize a protest among other employees all they have to do is say that and then it can be construed to be retaliatory if you still go ahead and fire that person I'm glad you said that what you said about it apply how it might affect other businesses CU I'm much less interested in how it affects Twitter X and musk and more interested in the ramifications of it how do you square this with and and at will state uh state where you know supposedly you can you know an employer can fire can fire an employee uh for any reason I couldn't agree with you more I'm not a labor attorney so I'm not you know legal expert on this but I think the nlrb has got a very very flimsy case and you know if if Twitter or any employer you know you know counter sues the nlrb for this I think the nlrb is not going to have you know much of a defense for for this type of a rule but I do say Lauren that it is you know it's just indicative of sort of the environment that we're in right now the nlrb right now is has feels so powerful and has such confidence in itself because it is it's you know it's been so fully backed by the administration that it's just saying hey man you know we're going to go after for even though you know this kind of thing seems way out of their realm of jurisdiction um but they're still doing it I'm not sure I I would agree with that but I I I I think it's there's some danger that we read too much into this I mean for example it's very hard for me to imagine that this is going to affect somebody who uh runs a factory business and there's a factory worker who says you know what I'm going to work from home from now on um I don't think that's going to fly and I don't think the nlrb is going to help that person do you I don't know all I do know is that if you have somebody in their office who wants to be working from home and doesn't want to comply with a new policy even if it's at will um and that person um publicly complains or publicly threatens to organize other employees and uh is still fired I think that person once they look at what the nlrb is doing with with Twitter or x uh you know can can take that as uh you know a green light to you know to to Sue and um I you know whether or not that will prevail in court still doesn't mean it won't be a headache for the business owner um and a little bit of you know and frustrating don't you think it also matters on on what terms the employee was hired I mean I don't know the situation at Twitter except that at a certain point everybody at Twitter was allowed to work from home and you know some employees moved to other parts of the country and that was okay uh at the time C before musk owned it um certainly musk once he owns it has a right to set his own rules but um I I would think that the terms of employment are a factor here as well shouldn't they be I guess um but again like you just said I mean musk as the owner of the business can decide you know how he wants his employees to work and terms can be changed so um you know I I I don't know the answer to that without seeing the terms of employment all right next topic the let's talk about something else that I think has you outr you're really ring there first the Phillies lose and now you're just you know what I mean you're digging it in that's what you're doing right now I'm going for it yeah here you go the EOC the equal employment opportunity commission has a new proposed harassment rule surprise surprise right you start your column by writing and the regulations on business keep coming um I see a pattern here let me does it matter if it's a good regulation or a bad regulation or are you saying all regulations are bad no of course I'm not saying all regulations are bad it sounds a little bit like you're saying it there's just a lot of regulations and some of them you know might be uh it's just another thing that we have to deal with so so let's let's talk about this workplace harass rule right it's clarifying section seven of the 1965 Civil Rights Act okay uh it you know there there just a proposed rule at this point right yeah but the public review period already ended uh last week so it's expected to be finalized by the first quarter of 2024 it's it's moving forward and what it's doing is um it's making the business owner and again this regardless of size it is making the business owner more responsible for the behavior of employees both in and out of the office so you know there is a there's a components that there's like four big components to this just so we're we're aware right there's the lgbtq plus component where um if an employee is being intentionally or repeatedly misgendered um by other employees and the business owner is either unaware of it or aware and not doing anything about it because I don't know we're busy running a business uh that can be you know your reason for making a claim with the EEOC and by the way uh the EEOC now has stepped up on its website the ability for employees to file claims directly with the EEOC so if an employee has an issue as an employer you don't even you don't even know about it your employees can go directly to the EOC and file claims against you now um and then you know you'll find about it when you get a call from Washington but okay so there so the there's the lgbtq plus you know you know people if you don't um have gender you know neutral bathrooms that could be considered to be a form of harassment um there's for you know women that are pregnancy or going through child birth um you know if people are uh talking in the office about their it literally says about their contraceptive choices or about abortion or non abortion and this person is offended or feels harassed harassed by it again that could be an employer liability um the same thing with virtual harassment so if if employees are on online meetings on zoom and they they're they're part of a you know they somebody says something sexist or racist or discriminatory or um you know they see books on a bookshelf behind one of the zoom participants in their own home that might be on topics that offend them those kinds of things could be the responsibility of the employer Lauren and do do you have a problem with that do you I think an employer does have some responsibility for those situations I guess one of the things I wanted to ask you about specifically is you seem to draw the distinction between whether it happens in the workplace or uh some other setting and you seem to think that that that that's silly or wrong uh from the way you worded it you know if if a manager harasses a subordinate in you know some other setting it's it's still a work related issue isn't it it is but it really depends on the definition of harassment and that definition is really being left up to the worker I mean I'll give an extreme example say I am on a uh you know I'm on a a zoom call a conference call and I've got books behind me that are in Hebrew or you supporting you know Israel and there's a you know somebody on the call that supports Palestine you know and they're another employee and they see these books behind me and they're offended because you know I I'm supporting Israel and we're on a we're on a a company call from my home and it just happens to be my bookshelf behind me even that even that long could be you know reason for that employee to say I feel uncomfortable and harassed and can make a claim you know to the e that uh my employer is either unaware of this or they're not being aware of this or they haven't checked or they haven't done enough and because of that um you know I'm I'm filing a claim and and you know make no you know make no um uh claims against this that it was reported this week the the commissioner one of the commissioners of the EEOC um was you know was testifying to Congress this week and literally said that a continued rise in lawsuits are a safe bet this year because the EEOC is you know ready for action to go after I'm not saying that there aren't some of these cases that have um you know your that are reasonable but I think it's going to open the door to a lot of frivolous cases and a lot of that I think is going to waste employers time um and take them away from from running their businesses so you know where where do you draw the line and where do you stop that's you know that that that's where I'm at as a business owner so what do you recommend for business owners uh what can they do to try to lessen the risk I'm glad you asked that and you know it's funny you when I speak to business groups I don't say any of this stuff that I don't complain I don't I mean believe it or not I really don't you save that for me yeah I save it for you it's only for you that I sit there and vent you know because we can do that on this podcast and that's fine but when I speak to business owners I lay out okay these are the things you need to know what actions do you need to take well you need to update all of your employee policies and your harassment policy in particular to make sure that they are in you know in accordance with this new workplace harassment rules which means you're going to have to spend some money and hire a labor attorney or an HR expert and go through your employment policy and make sure that you have zero tolerance for any of the um you know of the the stuff that's in this new workplace harassment role Zero Tolerance it's got to be in writing that's number one number two you need to revisit and communicate your reporting procedures so you know the worst is that somebody feels that they've been harassed or they're uncomfortable at work or whatever and there's not a there's not a a system for reporting this to somebody to have it to somebody know about it that's bad for the business owner and bad for the employee so you have to revisit how employees can report these issues when when they come up because you don't want them going directly to the EEOC um and finally more money you're going to have to consider getting some training now training on harassment is required in seven states uh California Connecticut Delaware Illinois Maine New York and Washington so um that's required in those States but even if it's not required in your state uh strongly recommend that once or twice a year you bring in an HR consultant pay them what they're going to pay them and have them train your managers on how to identify and how to deal with any potential harassment issues um now that this new rule has come out that's what you do so while I might slightly disagree with your level of outrage I I think that's great advice and and I and I guess I would just point out that obviously you're right that there is a cost involved to this and that cost is you know the kind of uh training that you're talking about and that cost is also without doubt the potential for frivolous uh claim that have to be uh dealt with but the the controverse is also true there if if there weren't these regulations if the owners didn't take these steps there's a potential cost as well and that cost is of of losing good employees who feel you know as if they're not being treated well because they're subject to um situations that they really shouldn't be subject to or maybe they're benefiting by losing some of those people I don't know and I have and I have to also say that some of the people you know I I that's not why you want someone to leave your company though if if there's someone there that you would be benefited by their departure you should make that happen but it shouldn't be because of this reason I guess I mean listen I mean it's up anybody can have that decide what they think is important or not I I I do think that I I I don't know again how many people this affects I really don't know I I don't know the scope and the scale of people feeling harassed to the point that they're going to report something um we all feel harassed during the day we all deal with um you know other people in our lives that sometimes don't do or say things that we would appreciate them doing or saying sometimes you know that's just just humans living with humans so I I I just don't know how big a problem this is but apparently it's big enough that now you know the the EEOC has got to issue these rules and employers now have to comply all right I hear your voice fading I got one more quick one for you uh you wrote a column for the guardian about lying on expense reports uh you wrote about an employee who was fired after initially claiming that he had consumed two sandwiches two coffees and two pasta dishes during a business trip to Amsterdam he later admitted that there was someone else there who had shared some of those meals uh and that he had you know not been honest but first he lied about it he lied about he got caught out and he got this was in London the guy got caught out like how you had two sandwiches and two drinks and two yep yep yep I did I did I did and then um they investigated further and it turned out he was lying so they fired him um and the guy worked for I forget a bank or financial City Bank actually is where he worked for um so they fir the guy the guy contested it to some employee Bureau of courts or something in London God and uh and they they they stood beond the employer that they were right to fire the guy you know what do you think uh yeah I mean you know the guy lied on his expense report I mean am I wrong I mean like is there like Second Chances here like you have an employee and the employee lies it's like basically the playy is stealing from the company so well what was the crime was the crime having the extra I mean he I think he claimed that he was within the limits of the spending so it shouldn't have been a problem okay I'll thr this but what's the real crime here is it lying is it you know Mi misreporting your expenses or is it lying about it both it's both I mean misreporting the expenses of course is you're stealing from the company I mean I don't care if it's under you know under the amount or not what that makes that's completely irrelevant if you didn't you know if if if you're charging the company through for two sandwiches and one of them was not for an employee or had nothing to do with work then you're stealing from the company and then you lied about it and you work for a bank of all places where you're supposed to you know well whatever so I don't you agree am I am I wrong on that no actually I was surprised because you you kind of suggested that this was a tough one um the way you're describing it now it doesn't sound to like no I the where the the moral ground the morality of expense reports fascinates me because you know everybody fudges expense reports to some extent you know and because a lot of this is left up to people aren't trained enough on expense reports there you know the policies themselves are not so clear so that that could certainly be that guy's defense although and sometimes I've worked at places where it's just been really hard to file for it it's just a total pain I think the Technology's gotten better um but especially going back a few decades it it's just an awful process to have to go through and that doesn't help even today I mean people you know they uh they claim certain extra points you know you know did they really tip the house keeping staff $50 in cash which has no receipt to it do they really do that you know did they really need to like upgrade to the BMW when a Honda cord could have done fine you know what I mean or and then what do you do about drinks at dinner I mean you know unless it's really clear like can I charge through those couple of old Fashions and I had a dinner or is that you know going people play around with these different things um and it's it's sort of a messy area you know for for a lot of companies um but lying on on it is really it's it's pretty unethical you know so I think you know you asked about you know does anybody deserve a second chance or a warning um I think that's a good question they do and remember the the end I got the article here in front of me so let me point out to you my friend Lauren at the very end I say in the end dishonesty is dishonesty and business is built on trust so yes even though it would take some thought I probably would have fired him too so there of course I said what's the headline on the piece Jee oh well actually I didn't set that headline it was myed what's the headline on the piece gan the gray moral ground of line on expense travel I rest my case fair enough fair enough are you working on anything we should watch for Jee what are you going to be outraged about this week oh I don't know yet I I have not figured out I'm working on a piece for the inquire next week about uh just a local about uh Hispanic businesses in Philadelphia and their growth and the support that they can get but I haven't figured out what I'm going to write for the guardian yet and that's usually my fun you know the fun stuff that I write so we we'll talk about next week sounds good to me uh Gan marks is a CPA who writes weekly on small business for the guardian the hill the Philadelphia choir the Washington Times the Chicago Daily Herold Forbes and entrepreneur you can hear him on ABC radio's eye on the world with John Bachelor Jean hosts two small business podcast with paychecks Corporation and the Hartford this episode was brought to you by the great game of business which helps businesses use an open book management system to help build healthier companies you can learn more at Great game.com Gan I always appreciate you're doing this but especially today with your voice fading thank you for hanging in there thank you L that was fun thank you so much have a great week everybody [Music]