A single search on Millennials in the workplace will produce thousands of articles. Indeed, the huge number of articles on Millennials in the workplace may lead one to believe they are a different species. While Millennials are probably not that radically different than preceding generations, it is well-documented they have different views and expectations in the workplace.
Perhaps the most distinguishing trait of Millennials is their adeptness with technology, including in employment. The term “digital natives” is steadily gaining in use and refers to individuals who grew up with digital technology and, as a result, became conversant with computers, mobile devices, and the internet at an early age. One outgrowth of Millennials being digital natives is high-volume use of social media.
Another distinguishing trait of Millennials in employment is that they place more emphasis on personal needs than the needs of the organization. The emphasis on personal needs results in Millennials seeking greater work-life balance, which can manifest in more demands for telecommuting, flexible schedules, and time-off than previous generations.
By 2020, Millennials will constitute over fifty percent of the employees in the workplace. By 2025, Millennials will constitute over seventy-five percent of the employees in the workplace. As a result, it is undeniable that the unique views and expectations of Millennials will continue to shape the workplace in the coming years.
As a result, employers need to equip their workplaces to address the new and different legal issues which will arise from the growing influence of Millennials. Efforts to attract and retain Millennials will become more critical in the coming years. With those efforts, however, is the risk of inadvertently engendering age discrimination claims by older members of the workforce. The growing percentage of Millennials requires that employers proactively address social media in the workplace or be exposed to legal risks such as breach of confidentiality, invasions of privacy, and even harassment and discrimination claims. Millennials need for work-life balance makes it incumbent on employers to have clear, comprehensive policies for time-off, telecommuting, and flexible schedules to preserve the orderly functioning of the business.
As employers strive to recruit and retain Millennials, there is the potential for both intentional and unintentional age discrimination. For example, in 2011, Google settled a claim brought by a computer scientist who was fired at the age of fifty-four and alleged his younger supervisor made ageist remarks. At an event in 2007, Facebook founder Mark Zuckerberg was reported to have said:
“I want to stress the importance of being young and technical. Young people are just smarter.”
While there are no doubt valid reasons for recruiting technically savvy employees, employers need to be careful how they go about it. The Age Discrimination in Employment Act, as well as the Washington Law Against Discrimination, protect applicants and employees forty and older from discrimination based on age. According to the U.S. Equal Employment Opportunity Commission, job notices should not advertise for “young professionals,” “college students” or “recent college graduates” because those phrases may violate the law. A job notice advertising for “digital natives” would undoubtedly have similar problems. Similarly, treating employees in earlier generations less favorably based on assumptions they lack the technical adeptness of Millennials is also problematic and may give rise to age discrimination lawsuits.
To address these risks, employers should start by simply being cognizant of the potential for unintentional and intentional age discrimination against older generations as Millennials are recruited and incorporated into the workplace. Second, employers should recruit and prioritize skill sets rather than age groups. For example, rather than advertising for a digital native (which may exclude applicants over forty), an employer could advertise for applicants fluent in social media and conversant with the latest technology (which includes applicants of any age).
Part and parcel with Millennials’ comfort with technology is their ubiquitous use of social media. Millennials lives are chronicled for all to see on Facebook, Instagram, and twitter. It is understandable that an employer may seek to tap this wealth of information when considering a Millennial for employment. However, there are legal risks when an employer researches on applicant on social media.
Information potentially found on social media, such as an applicant’s religious affiliation, national origin, sexual orientation, and medical condition, cannot be used in hiring decisions under various state and federal laws. By learning such prohibited information from social media, employers create the risk of future disruptions in the workplace and even lawsuits which may have been avoided otherwise. Therefore, an employer should consider prohibiting research of applicants on social media. However, if an employer decides researching social media is too useful a tool to ignore when screening applicants, it should consult legal counsel to ensure that the manager or supervisor conducting such research is familiar with the legal complications and risks inherent in such activity.
Importantly, the legal risks posed by learning prohibited information from social media persists once an applicant starts working. To further minimize those legal risks, employers should enact a comprehensive social media policy to include in their employee handbook. In creating a comprehensive social media policy, an employer should consider: (i) whether to encourage, discourage, or tolerate social media use; (ii) whether the policy will only apply to use of social media in the workplace on the employer’s IT resources or also to use outside of the workplace on employees’ personal IT resources; (iii) guidelines for use of social media, taking into account the nature of the business, characteristics of the workforce, and the workplace environment; (iv) how to ensure confidentiality of critical information is preserved, including proprietary business information and, perhaps most critically, patient health information; and (v) the National Labor Relations Act, to avoid illegally chilling protected activity under Section 7.
Work-life balance is often cited as the most important or one of the most important considerations to Millennials in employment. As such, it’s important that employers enact or update policies related to work-life balance since Millennials will no doubt closely scrutinize and rely on those policies. In particular, employers should ensure they have comprehensive time-off, telecommuting, and flexible schedule policies to avoid unnecessary disruptions, low morale, or poor retention of Millennials.
A time-off policy should: (i) state what time-off is available (e.g. sick, vacation, PTO); (ii) define which employees are eligible for time-off; (iii) explain how time-off is calculated; (iv) place any restrictions on the carry-over of time-off from year to year; (v) state the procedure for requesting time-off; and (vi) describe how accrued, but unused time-off is treated on separation of employment.
A telecommuting policy should: (i) define which employees are eligible; (ii) describe the procedure to request telecommuting; (iii) explain employee responsibilities (e.g. for accessibility during work hours); (iv) explain employer responsibilities (e.g. for technical support); and (v) remind employees that they must comply with all other policies when telecommuting.
A flexible schedule policy should: (i) define which employees are eligible; (ii) describe the procedure for requesting a flexible schedule; (iii) explain the parameters and guidelines for a flexible schedule, such as how time should be kept, expectations for timely completion of all work, and requirements for availability by telephone, email, etc.; and (iv) remind employees that they must comply with all other policies when on a non-standard schedule.
Seattle attorney Justin Steiner practices employment law, healthcare law, and general litigation. This article originally appeared in the Summer 2016 edition of The Physicians Report.