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Ho Ho Oh No! HR Pitfalls at the Annual Holiday Party

The Naughty List

Santa’s list wouldn’t be complete if it didn’t have a few coal recipients.  The following are true stories of office parties that went horribly awry.
  • A California bank branch held an annual holiday party at a local restaurant.  There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch).  The entire affair, including the alcohol, was funded by the bank’s budget.  The office party officially ended, but the party-goers continued their revelries.  But once the bank’s party ended, the bank employees had to fund their own cocktails.  The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house.  You can probably see where this is going.  The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank should have foreseen the harassment, particularly in light of the alcoholic drinks that were provided at the holiday party.  The trial court ultimately found the bank wasn’t liable, largely because the office party ended, and the drinking that continued wasn’t on the bank’s dime.   
  • A restaurant in New Hampshire employed a head chef who trended toward the vulgar – on a daily basis.  The other employees in the kitchen had just about had it when the restaurant held an      Continue Reading...
Bonuses: Don't Let Overtime Pay Requirements Grinch Your Holidays
‘Twas the eve of the holidays and all through the plant, There was hustle and bustle from all plus an ant. The boss was pondering -- What should I offer? A holiday bonus, perhaps? Is there enough in the coffer? A bonus sounds good -- could it be any trouble? Our employees will love it; they may even work double. There must be a catch, else why this ol’ rhyme? You must understand -- it may affect overtime.
No employer wants to be a Grinch this holiday season, but every employer should be aware of how Christmas and other end-of-year bonuses can affect overtime. If you decide to give a bonus this holiday season, the manner in which it's announced and calculated could affect whether you also have to go back and recalculate your nonexempt employees' overtime pay. This probably isn't the thank-you that you wanted for your holiday bonus.
General rule on bonuses
As our faithful readers are aware, nonexempt private-sector employees are entitled to be paid overtime for all hours worked over 40 in a workweek. The Fair Labor Standards Act (FLSA) requires that you base your overtime calculations on the employee's “regular rate.” This is typically her hourly wage rate adjusted to reflect certain specific forms of additional compensation you may provide in exchange for her services.
Bonuses that are provided as a direct or indirect incentive for employees to work harder or more efficiently are one type of additional compensation that must be included in an employee's regular rate. These      Continue Reading...
'Merry Christmas!' I Mean ‘Happy Holidays!’ Oh, Just Have A Nice Day

Q: Every year, the holiday season seems to get more stressful. On the one hand, I have a couple of employees who want to make everything about Christ. They insist on wishing everyone, including our customers, a merry Christmas rather than happy holidays or not saying anything.

They claim that saying “happy holidays” denies their faith by taking “Christ” out of Christmas. I have no reason to disbelieve their conviction, but they seem to overdo it, making it more like a political battleground than a joyous celebration.

On the other hand, I have employees who want there to be no mention of Christ. At our traditional end-of-the-year employee holiday party, the staff sings songs they've selected. They sing winter songs like “Let It Snow,” and religious songs like “Away in a Manger.” A couple of employees have complained that some of the religious songs are offensive because they do not believe in Jesus Christ. They want me to ban the mention of Christ in the workplace. How do I keep everyone happy? Any words of wisdom?

A: Our society has changed quite a bit over the last 30 years. People have become more vocal about whether the holiday season surrounding December 25, traditionally known as Christmas, is a religious or secular observance. In this country, it is both. Some people view the holiday season as a time to commemorate the birth of Christ, with varying levels of enthusiasm. Others celebrate Hanukkah, and in some years, it is also the time of Ramadan. Some      Continue Reading...
Christmas Vacation, Free Beer, and the FLSA

In the holiday classic National Lampoon's Christmas Vacation, family patriarch Clark Griswold is distressed because he has not yet received his Christmas bonus, which he is counting on to cover a check he wrote for a new swimming pool. Finally, on Christmas Eve, a courier arrives with a delivery. As his family looks on, Clark opens the envelope to find a one-year membership to the Jelly of the Month Club, not the bonus he is expecting.

Naturally, Clark has an epic meltdown. Well-meaning but misguided Cousin Eddie then kidnaps Clark's boss and drags him to the family's home so Clark can confront him about canceling employees' bonuses: “I was expecting a check. Instead, I got enrolled in a jelly club. Seventeen years with the company. I've gotten a Christmas bonus every year but this one. You don't want to give bonuses, fine. But when people count on them as part of their salary--well, what you did just plain . . .”
“Sucks,” Clark's son, Rusty, interrupts.
After looking around at the family, the boss has a change of heart and announces that he is reinstating the bonuses. And it's Merry Christmas to all and to all a good night--until a SWAT team breaks into the family's home to rescue the boss and Uncle Lewis inadvertently triggers a sewer gas explosion.
Promises, promises
Although canceling employee bonuses is a great setup for a comedy, year-end bonuses can lead to legal snags that are no laughing matter for employers. Under Kansas wage payment laws and general principles      Continue Reading...
Employee Injury Sustained on 'Holiday Trip' Covered by Workers' Compensation

Are injuries that one of your employees sustains as the result of a “holiday trip” covered by Kansas workers’ comp laws? They are when the “trip” in question happens in the workplace. Confused? Read on. 

‘Twas the night before Christmas and all through the plant ...

It’s Christmas Eve. Your plant is shut down for the holidays. One of your employees -- let’s call her Virginia -- has waited until the last minute to do her holiday shopping. Even though the plant is closed to the general public, your employees have been told that they can pick up their final paycheck for the year on December 24 or wait until the plant reopens on the 27th.
Virginia needs money to do her shopping, so she goes to the plant to get her check. Unfortunately for her, as she’s leaving her manager’s office, she trips over a scale, falls, and injures herself severely. Is she entitled to make a workers’ comp claim for that “holiday trip‘?
Getting Grinchy
No way that could really happen, right? Wrong, Reindeer Breath! This exact situation was the subject of a Kansas Court of Appeals ruling.
Did the court find this “mistletoe mishap” covered by workers’ comp? Well, you think, for an employee’s injury to be covered by workers’ comp, it must “arise out of and in the course of” her employment. Virginia wasn’t working when she was injured, was she? And your plant wasn’t really even open, was it? Therefore, you merrily conclude, her claim obviously isn’t covered. Wrong again, Elf      Continue Reading...
Protect Your Employees, and Your Organization, From Harassment

Each day’s headlines and new Equal Employment Opportunity Commission (EEOC) guidance combine to send a strong reminder of employers’ responsibilities to help prevent workplace harassment. All employers should take these steps to help protect their employees and themselves:   

  • Review (and update, if needed) anti-harassment policies, including appropriate reporting, investigation, and anti-retaliation policies.
  • Remind employees of the importance of reporting workplace harassment and how to do it, and that employees are protected from retaliation for such reports.
  • Refresh workplace harassment training or introduce it if not provided previously. Use recent news stories as an opportunity to communicate and emphasize the importance of your policies. All employees should be included in this training on preventing, spotting, and addressing harassment. Annual training on preventing workplace harassment is recommended to reinforce the message and introduce the topic to new employees.
  • Get buy-in from top leadership and consider having the top executive send a written message to employees. Also have them speak at the start of training sessions to underscore that providing a harassment-free workplace is important to the organization, and harassment will not be tolerated. 
While these recommendations help create a safe workplace, they also demonstrate an employer’s commitment to preventing harassment. If a harassment complaint is filed, employers who have taken these types of preventive actions may be able to avoid or limit potential liability.
New Guidelines
The EEOC recently approved new sexual harassment guidelines for employers for the first time in 20      Continue Reading...
Mandatory E-Verify????

Immigration issues continue to be a hot topic in Washington.  As immigration reform questions circulate through Congress, particularly surrounding the DACA/Dreamer issue, a bill to make E-Verify mandatory for all employers arrived on the House floor.  The bill would phase in the required use of E-Verify over a two-year period.  It is still too early to tell if the bill will survive, but its introduction shows a continued emphasis on border control by the Republican in Congress and the Trump Administration.  Stay tuned for further updates. 

Trump Administration Makes Significant Change to Immigration Renewal Filings

USCIS issued a memorandum on October 23rd that rescinded prior guidance established by the Bush and Obama administrations related to extensions of temporary work visas.  The prior guidance directed USCIS case officers to approve extension requests so long as the main facts of the extension were in line with the original filing.  The new guidance tosses out this presumption in favor of approving those extension requests and indicates that all filings will be subject to the same scrutiny as the initial filing.  In essence, the Trump Administration does not want to give credence to any previously approved filings and will review them with fresh eyes upon the request for an extension. 

The policy memorandum is yet another indication of the Trump Administration's negative viewpoint with respect to the use of foreign labor.  In keeping with the theme of the Buy American Hire American order issued by President Trump, this policy memorandum clears the way for USCIS case officers to reject extension requests in hundreds of thousands of previously approved work visas.  The impact of the memorandum is hard to predict at this point, but does point to a continued tightening and restricting of employer access to work visas for foreign workers. 

Happy Halloween!
October for many means the changing of the leaves, digging those cozy sweaters out of the back of the closet, and cracking open the windows at night. For some, it’s a time for hot chocolate and hayrides, but for most, October means one thing . . . HALLOWEEN! It’s all about pumpkin carving, costume shopping, and figuring out which house in the neighborhood is going to have the mother-load of sugary goodness and which houses are going to be handing out (milk) duds.
For employers October and Halloween often present a witch’s brew of issues that unfortunately aren’t make-believe. From something as simple as deciding whether to allow costumes on Halloween to beginning to prepare for the New Year, now is a really good time to be proactively thinking about important employment-related issues. Unlike Halloween, in the employment world you can’t just turn your porch lights off and wait for morning so it’s always a good idea to address potential issues before they reach your door (bell). Like many homeowners on Halloween, the employers that are least prepared often are the ones who end up dishing out the most.

So don’t be a Headless Horseman when it comes to tackling some of these spooky and startling issues and instead, trick or treat yo’self to a few of our favorite Halloween articles from recent memory. If these articles get you thinking about some of the potential employment skeletons in your closet, it might be a good idea to get in touch with your      Continue Reading...

Bad Haircut Leads To Unfair Labor Practice

What's the difference between a good haircut and a bad one? Two weeks. That's funny. But one employer wasn't laughing when an employee's botched haircut started a chain of events that resulted in a finding that the company violated the National Labor Relations Act (NLRA). 

Having a bad hair day
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility. Embarrassed by a “terrible haircut,” she began wearing a hat to work. After a week, she was told the hat violated the dress code and she needed to remove it or go home. She protested that other employees were allowed to wear hats, refused to remove her hat, and left for the day. She returned the next day, which, as fate would have it, was Halloween. Employees were allowed to wear costumes. Wright-Gore dressed as an auto-racing fan, and her costume included -- you guessed it -- a hat. She was told to remove the hat, which she did, and was written up for insubordination.
Over the next few days, Wright-Gore observed that some employees were wearing hats and displaying tattoos in violation of the dress code without consequence. She began talking to other employees to enlist their support for what she felt was unequal enforcement of the policy. To bolster her case, she used her cell phone to take pictures of other employees who were dressed contrary to the policy.
One of the employees complained to management that Wright-Gore had photographed him without permission. Alas, the company had a policy against taking      Continue Reading...
HIPAA Horror: Obtaining Employee Medical Information
October is the time for ghosts, ghouls, and goblins. To the uninformed, the Health Insurance Portability and Accountability Act (HIPAA) may be just as harrowing as those Halloween harbingers. If you've attempted to obtain employee medical information from a health care provider, the provider may have required that you provide an authorization signed by the employee as a precondition to any disclosure. In this article, we'll try to demystify and reduce the fear factor of those requirements. We'll summarize the provisions of the HIPAA privacy rule concerning disclosures to employers, which should help you understand why providers are hesitant in disclosing requested information to you.
HIPAA basics
HIPAA prohibits “covered entities,” including most health care providers, from disclosing protected health information without a written authorization from the patient unless a specific provision within the regulation permits such disclosure. “Protected health information” is information that there is a reasonable basis to believe can be used to identify an individual and relates to the past, present, or future physical or mental condition of the individual, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual.
Work-related medical surveillance and work-related injury
The HIPAA privacy rule permits a health care provider to disclose information to an employer concerning an employee without the employee's authorization in very limited circumstances. Specifically, a provider may disclose information concerning workplace medical surveillance and work-related illness or injuries only if the following conditions are met.
First, the health care      Continue Reading...
Tricks at Work Are No Treat for Employers

Halloween is a lot of fun for both kids and adults.  When else can we wear inappropriate costumes, gorge on unlimited candy, and create a “Walking Dead” display in our front yard?  But when the spectral mist of Halloween creeps into the workplace, things can get really scary. Here are some real-life Halloween work-place mishaps that left employers haunted:

  • A retail store put up a notice encouraging employees to come to work in costume on Halloween.  About half participated, while the other half showed up in their regular clothes.  Donna Meraz was one of the employees who didn’t wear a costume, claiming that doing so conflicted with her religious beliefs.  Later that year when Meraz’s work hours were reduced, she sued the company alleging she was retaliated against for her religious beliefs after refusing to work in costume on Halloween.  The court gave the employer a treat, dismissing Meraz’s retaliation claim. 
  • An employee brought a retaliation claim against her employer, alleging she was fired after complaining about a male supervisor who constantly made suggestive remarks about female employees.  On one occasion, a woman wore a cat costume to work on Halloween and the male supervisor allegedly said that he “liked her tail.”  Unfortunately, the male supervisor got up to other hijinks like this and the court ordered the case to a jury. 
  • Several black and Hispanic employees of a city parks department brought class action      Continue Reading...
Exorcise ‘Ghost Policies’ From Your Employee Handbook
Is your employee handbook or policy manual haunted by shadowy policies and provisions that are treated as though they aren't even there? “Ghost policies” can creep into a handbook in a number of ways. They may be relics that once lived useful lives--the legacies of long-departed HR managers--but their original purpose is now unknown or ignored. They may be recent additions that never caught on, or they may simply be the result of errors (not yours, of course).
Be afraid--be very afraid--of ghost policies. If left floating in your handbook, they can lead to legal claims and liability.
Dord: a ghost word
What is “dord”? According to Webster's New International Dictionary, Second Edition, it's a noun that means density as used in physics and chemistry. But it was never a real word. Dord is what lexicographers call a “ghost word,” a word that comes into use or is published because of a misinterpretation, misreading, typographical or linguistic confusion, or other error.
So how did the nonexistent word dord end up in the dictionary? In the first edition of Webster's, entries for abbreviations and words were intermingled. But in the second edition, abbreviations were moved to a separate section in the back of the book. An editor created a card with the notation “D or d, cond/density,” which was meant to indicate that the new edition should include “D” and “d” as abbreviations for density. The card mistakenly ended up in the word pile, and the phrase “D or d” was misinterpreted as “dord.” A      Continue Reading...
Treat for Employers: Trump Administration Ends Obama-Era Equal Pay Rule
President Trump has stopped an Obama-era rule requiring large companies to report how much they pay workers by race and gender. The goal of the rule was to help in closing the wage gap between men and women, and between different racial groups, by providing additional transparency to the issue. The Trump administration claims it halted the rule on the belief that it would not work as planned.
The rule required private employers with over 100 employees, and federal contractors with 50 or more employees, to disclose wage and pay data to the Equal Employment Opportunity Commission. Under the rule, the EEOC would have used the data in investigating complaints regarding disparities in pay. The data would not have been made public; however, the EEOC would have released the aggregate data about pay in various industries, broken down by race and gender.
Some critics of the rule argued that it was not precise enough to be useful. Supporters of the rule disagreed, arguing that employers that monitor themselves have smaller pay gaps.

For Kansas employers with over 100 employees, this move means that you will not have to provide this data to the EEOC starting in 2018, as the rule had not gone into effect before its suspension.

Debate Continues on Whether Title VII Prohibits Discrimination Based on Sexual Orientation

The federal courts continue to wrestle with whether sexual orientation is protected by Title VII – the law that prohibits discrimination based on sex. Although most circuit courts of appeal (including the 10th Circuit that covers Kansas) hold that Title VII does not cover sexual orientation, recent court decisions have brought the debate to the forefront.

We told you in a post last August that the 7th Circuit Court of Appeals had rejected the EEOC’s position that discrimination based on sexual orientation violates Title VII.  That Court, however, later vacated the earlier decision, and granted a rehearing en banc.  Then, on April 4, 2017, the Court reversed course and ruled that discrimination based on sexual orientation is indeed a form of unlawful sex discrimination. 
In late March, the 2nd Circuit Court of Appeals reached the opposite result and ruled that under its existing precedent, Title VII does not prohibit discrimination based on sexual orientation.  In a separate opinion, two of the three judges urged the entire Court to reexamine its earlier precedents in light of the “evolving legal landscape.”   
And in early March, the 11th Circuit Court of Appeals held that discrimination based on sexual orientation was not sex discrimination.  A dissenting judge concluded, however, that “it [was] time that the court recognized that Title VII prohibits discrimination based on an employee’s sexual orientation.”  

These conflicting decisions are not binding on other federal circuits.  But they signal that the Supreme Court may be called on in the near future to settle the debate. 

     Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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