Turner Padget attorney Reggie Belcher on the workplace's biggest legal issuesAug 07, 2019 01:09PM ● By Chris Haire
Employment law is an ever-changing field, one where societal changes make their way into the rules and regulations governing the workplace. Turner Padget attorney Reginald "Reggie" Belcher is well aware of this. In fact, Belcher is the first to admit that when he started his career a few decades ago, he never would have anticipated the many challenges facing human resource lawyers today.
We recently talked with Belcher, who was named one of Human Resource Executive's 40 Up-and-Comers in Employment Law, an honor bestowed upon him for the eighth straight year. During our chat, Belcher discussed some of today's hottest topics, from equal pay to paid leave, LGBTQ rights, and service animals. The following is a distillation of what was discussed; it has been edited for clarity and length.
We had a record number of sexual harassment charges in 2018. In 2019, employers are now dealing with the fallout of those charges. Many of those charges later become lawsuits, so you're dealing with those lawsuits.
We're probably also dealing in 2019, maybe not with the record number of sexual harassment charges, but still substantially more than we had before the #MeToo movement.
From a legal standpoint, substantively nothing's changed about the law of sexual harassment. But it seems to be more of an issue, and we have more reports and complaints than we've had previously, which means that we're telling businesses and employers, "Put budget money together and train up your supervisors and managers on how to prevent harassment." The training and the education on the issue is more important than ever because the issue seems to be bigger than ever.
The two things that employers ought to be doing in-house right now would be sexual harassment training for their supervisors and managers, and two, particularly for employers of any substantial size--if you have let's say 100 or more employees--you really need to do an internal pay audit to make sure that we're paying men and women and minorities and non-minorities the same or substantially equivalent wages for the same or substantially equivalent work.
And so, I'm suggesting internal audits to figure out if we have an issue, and if we have an issue, we need to correct it. We need to correct it to avoid a lawsuit, and that way, if we are the subject of a Department of Labor or [an Equal Employment Opportunity Commission] investigation, it shows that we've acted in good faith and attempted to comply.
All marijuana use remains illegal in South Carolina at both the state and federal level.
What if a South Carolina employee goes to a state like Colorado or Washington, where recreational use is legal, and they use marijuana and they come back to their job in South Carolina and they're randomly tested and they test positive?
Under those circumstances, the employer still has the absolute right and discretion if it chooses to discipline or discharge the employee for the positive drug test, regardless of whether the employee used the drug in a state where it was legal.
Another little issue that we've been talking about with employers is the use of CBD oil.
People ought to be careful if they're subject to random drug testing for CBD oil because, even though apparently you can buy CBD oil, if CBD oil results in a positive drug test, which it shouldn't theoretically, but if it does, then an employee could be disciplined or discharged for that.
It's tough to write a non-compete restrictive covenant agreement that you know with certainty will be legally enforceable in court, but that still really has the impact that the employer wants.
The geographic scope needs to be as narrow as the company's interests, so if the company does business within the city of Greenville and has a competitor within the city of Greenville, the city of Greenville should be an acceptable geographic scope.
But let's say if the company only does business in Greenville and does no business anywhere in the state of South Carolina, if the agreement would prohibit the employee from competing with another business somewhere else in the state of South Carolina, the court's likely gonna say that's overbroad and invalid.
Privacy in the Workplace
There's no right of privacy for you when you bring personal items onto the employer's property, and that would include a pocketbook, a backpack, it could include the contents of your car. And we see this a lot of times with weapons policy.
An employer has a weapons policy that says you can't bring a weapon into the workplace or on our property--that means you can't have a handgun in your car or your truck parked out in our parking lot. You have to educate employees that they don't have a right of privacy, and you need to do that conspicuously in the handbook, policy manual, or in whatever policy you're dealing with the weapons policy, cell phone policy, whatever it is. And at least in the private sector, employers have the right to do that, have the right to search for, to review, or inspect anything that an employee brings onto an employer's property.
It has to be that way to protect the employer and to minimize the employer's potential liability on issues involving violence in the workplace, harassment, and general conduct issues.
This is a big issue that we've heard for many years now, at least on the federal level. We know that the Democrats support amending the Family Medical Leave Act, which provides up to 12 weeks of unpaid leave for certain conditions or circumstances, and they want to tack on a certain amount of paid leave.
It could happen, but you would have to be in a situation with the Democrats controlling both houses of Congress and the presidency. If you have anything less than that, I don't think it'll ever happen. And I don't think that it would happen in South Carolina with our current setup in the House, Senate, and governor.
Paid leave would be popular, I think, with, obviously, employees, and it's possible that we could see it, but I don't think in the near term it's going [to happen].
All this publicity on immigration may or may not result in any changes at the federal or state level, and if we don't see some changes of some kind, I think it leaves a lot of employers in a tough spot. Much like health care, I can't really predict where we're gonna end up. But wherever we end up with immigration is going to impact a lot of employers even in South Carolina, even though we're not a border state.
You've seen the EEOC say, for example, that Title VII of the 1964 Civil Rights Act covers sexual orientation the same as Title VII covers race and national origin and gender and all those other protected areas.
We've got a split in the federal court. Some of the courts agree with the EEOC, some disagree. We have at least one federal court in South Carolina that has disagreed with the EEOC and said Title VII doesn't cover sexual orientation in the workplace.
We have two counties in South Carolina--Charleston County and Richmond County--who passed county ordinances saying that, at least with regard to county employees in those counties, sexual orientation is covered.
We've got a Supreme Court decision that we're waiting on this summer from the U.S. Supreme Court that hopefully will provide some closure and guidance on this issue.
I can't tell you how many dozens of times we've dealt with this, with different employers, and that is the issue of an employee's right to bring service animals or emotional support animals into the workplace.
The issue oftentimes depends on whether the employee's considered disabled under the Americans with Disabilities Act, whether that the animal is truly a service animal as defined by the ADA, or whether it's an emotional support animal, because there's a difference between the two, and whether the employer can reasonably accommodate an employee by allowing the employee to bring a service animal or an emotional support animal to work.
It's such a new issue that we don't have a lot of guidance from the courts on that issue.