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Looking Ahead: Hot Employment Law Issues for 2020

What issues and trends do we see on the horizon for employers in 2020? Here are some hot employment law issues that may impact your organization or give you food for thought. 

  • Arbitration Provisions. The Supreme Court has made it clear that class action waivers in employment agreements requiring employees to arbitrate legal disputes are valid and enforceable. More and more employers are using such arbitration agreements to limit liability exposure for employment law claims. Is this a good option for your company?
  • Marijuana Legalization. Colorado has legalized recreational marijuana; Oklahoma and Missouri have legalized medical marijuana; and Nebraska has decriminalized marijuana usage. What does the future hold for Kansas? Even aside from potential legal changes, some Kansas employers have decided to stop testing for marijuana use in light of the tight labor market and changing public perceptions.
  • Ban the Box. Kansas state employers under Governor Kelly's jurisdiction and employers in Kansas City, Missouri, are now prohibited from asking about criminal history until after a conditional offer has been made. Many other states and cities have also “banned the box.” As an employer, should you continue to use criminal history to automatically disqualify job applicants?
  • LGBTQ Protections. In 2020, the U.S. Supreme Court is expected to decide the hotly debated question whether Title VII’s prohibition of discrimination based on sex extends to sexual orientation and/or      Continue Reading...
A Christmas Story: Tales of Woe and Joy from the Holiday Party

Now that the holidays are over, we can look back on a year of accomplishments and success. Or, for some, we can start the new year with HR headaches resulting from the annual holiday party.

The Naughty List
Holiday parties are ripe for mischief and mistakes. 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      Continue Reading...
Save the Date: 2020 Employment Law Institute

Mark your calendars now for Tuesday, May 12, 2020, the day of Foulston’s annual comprehensive full-day employment law seminar! We’ve been planning since last summer, taking note of attendees’ feedback to us, staying on topic of human resources trends, and tracking new cases, laws, and regulations.

We’re especially excited to bring you the 2020 Employment Law Institute keynote speakers, Jarrett Green and Rebecca Green. Their presentation focuses on how employers and HR pros can foster peak performance through mindfulness and stress management. Jarrett and Rebecca’s work began with helping high-stress professionals find ways to improve their emotional well-being, cognitive skills, and productivity to enhance career success. They have found that the same principles are effective across most companies and for workers of all levels, and are now delivering their workshops and presentations to corporations such as Tesla Motors, US Bank, NBC-Universal, and Allstate Insurance Company.

You can learn more and register early at www.foulston.com/employmentlawinstitute.

Questions or suggestions? Call or email conference manager Adrienne Clark at aclark@foulston.com or 316-291-9721 or employment practice group chair Boyd Byers at bbyers@foulston.com or 316-291-9716.

Don't Ask, Don't Tell? Good Reasons to Stop Asking About Salary History

Does your company ask about salary history during the application and hiring process? If so, you may want to re-think that approach.

Nationwide, women earn about 85% of men’s wages, and Kansas is no exception. In an effort to help reduce the gender pay bias, a growing number of states and cities have banned employers from inquiring about salary history during hiring. The rationale behind these bans is that, when salary offers are based on salary history, women who have been previously underpaid will continue to be underpaid. Thus, salary history inquiry bans aim to stop the cycle of underpaying women.

Salary history inquiry bans have been adopted from coast to coast—from California to New York City—and now, Kansas City, Missouri, has joined their ranks. Effective October 2019, the Kansas City ordinance generally prohibits an employer with six or more employees from engaging in certain hiring practices, including: (1) inquiring about a job applicant’s salary history; (2) searching public records to obtain salary history; (3) relying on salary history to make hiring decisions; and (4) retaliating against an applicant for failing to disclose salary history. These prohibitions do not apply to applicants for internal transfers or promotions with their current employer, and employers are permitted to discuss salary expectations with applicants.

If your company operates in Kansas City, Missouri, or other locations with salary history inquiry bans, you obviously need to update your hiring procedures accordingly, or risk liability and penalties down the road.

But even if an employer is not subject to a state      Continue Reading...

"Magic Words" Not Needed to Trigger ADA Obligations

The Tenth Circuit Court of Appeals (which has jurisdiction over Kansas) recently reiterated the rule that employees do not need to use “magic words” to request a reasonable accommodation for a disability.

This case involved a garbage truck driver named Roy Mestas who worked for the town of Evansville, Wyoming. Mestas slipped on the ice while working, hurt his back, and was on medical leave for six weeks. Mestas claimed that when he returned, his bosses treated him worse than his co-workers because they were upset with him for getting hurt and missing so much work.  
One day, when he was assigned to remove snow, Mestas asked his boss if he could use his own snowblower to assist with the task, which he thought would help with his back pain. The boss denied this request. The next day, Mestas asked his supervisor to be excused from shoveling snow because he reinjured his back, but the boss just hung up in response. Mestas alleged that when he called back, his supervisor said he “didn’t want to hear [his] sh**.”
Mestas said that when he returned to work a week later, his supervisor fired him because “things were not working out,” and told him to go “take care of [his] back and whatever.”
Mestas sued under the ADA. On appeal, the Tenth Circuit found that he had raised a triable issue of fact about whether he had      Continue Reading...
Overland Park Enacts LGBTQ Discrimination Ban

The Overland Park City Council recently approved a nondiscrimination ordinance that makes it unlawful to discriminate an employee based on sexual orientation or gender identity. In doing so, Overland Park, the state’s second-largest city, follows other Kansas cities such as Kansas City (Kansas), Lawrence, Manhattan, Merriam, Mission, Prairie Village, and Roeland Park.

About half the states now prohibit discrimination against applicants and employees based on LGBTQ status, but Kansas is not among them. However, companies that have contracts with the State of Kansas are subject to an executive order that bans discrimination on the basis of sexual orientation or gender identity.

The Overland Park City Council approved its ordinance just one day before the U.S. Supreme Court heard oral arguments in a set of cases that test whether federal nondiscrimination laws protect LGBTQ employees. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. The Supreme Court will decide whether the statute protects employees who claim they were subjected to discrimination because of their sexual orientation or transgender status.

Even if the Court decides that Title VII doesn’t prohibit discrimination based on sexual orientation, employers still need to be aware of state and local laws, like the Overland Park ordinance, that extend legal protections to LGBTQ employees.

Exorcise "Ghost Policies" from Your Employee Handbook

Is your employee handbook or policy manual haunted by shadowy policies and provisions that are treated as if they aren’t even there? Such “ghost policies” can creep into a handbook in any number of ways. They may be relics of the past that once lived useful lives—the legacy of long-ago-departed HR managers—their original purpose now unknown. They may be more-recent additions that never caught on. Or they may simply be the result of error (not yours, of course).

You should be afraid—be very afraid—of ghost policies. Left floating in your handbook, they can give rise to legal claims or liability.

‘Dord’: A Ghost Word

What is dord? According to the second edition of Webster’s New International Dictionary, 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 gets published because of misinterpretation, misreading, typographical or linguistic confusion, or other error.

So how did the non-existent 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 at the back of the book. An editor created a card with the notation “D or d, cond/density,” meant to indicate that the new edition should include D and d as abbreviations for density. The note card mistakenly ended up in the words pile, and the phrase “D or d” was misinterpreted      Continue Reading...

DOL Proposes New Rules for Tipped Employees

If your business has employees who receive tips, you need to know about the Department of Labor’s (DOL) proposed changes to its tip regulations.

As background, the Fair Labor Standards Act (FLSA) generally requires covered employers to pay employees at least the federal minimum wage, which is currently $7.25 per hour. However, the FLSA allows employers to pay tipped employees as little as $2.13 per hour and apply their tips as a credit toward satisfying the full minimum wage (the “tip credit”).

In 2018, the FLSA was amended to provide that an employer “may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.” The 2018 amendment also rescinded DOL regulations that prohibited employers from requiring tipped employees (such as servers and bartenders) to share their tips with traditionally non-tipped employees (such as cooks and dishwashers), even when the employer does not take a tip credit.

The proposed new regulations would further implement and clarify these 2018 statutory changes. The main provisions are as follows:

  • Employers, managers, and supervisors are prohibited from keeping employee tips (including participating in tip pools) under any circumstances.
  • If the employer pays all employees at least the full federal minimum wage (meaning the employer is not taking a tip credit), then the employer can establish required tip pools between all workers, including customarily and      Continue Reading...
Misclassifying Employees as Independent Contractors Under the NLRA

Merely misclassifying employees as independent contractors, by itself, does not violate the National Labor Relations Act, according to a new ruling by the National Labor Relations Board.

The issue in this case arose after a logistics company fired a driver after she complained about being misclassified as an independent contractor. The Board agreed that the act of firing the driver for complaining violated the NLRA, but disagreed that the initial act of misclassification itself violated federal law for interfering with workers’ rights to organize. The Board determined that the act of telling workers they are independent contractors is not considered a threat of reprisal unless there is more. For example, the Board has found in other cases that an employer violates the NLRA if it expressly prohibits workers from engaging in otherwise protected activities because they are independent contractors.

The Board agreed with employer advocates who argued that if misclassification alone violates the NLRA, then it would significantly curtail the use of independent contractors and penalize employers for honest mistakes. The Board recognized that whether a worker is legally considered an employee or an independent contractor is not always clear cut and depends on a variety of factors.

Labor law violations are one less thing for employers to worry about when classifying workers as independent contractors. However, misclassification still poses many other concerns for employers, such as tax law issues, workers’ compensation issues, employee benefit issues, and numerous wage-and-hour law issues.

Recap: Foulston's Discrimination Mock Trial at 2019 SHRM State Conference

HR Professionals are often called upon to make difficult decisions that are legally compliant. Occasionally, however, personnel decisions lead to charges and lawsuits that may go to trial, where a jury will scrutinize those decisions. 

On September 13, 2019, Foulston’s Employment Law Team presented a mock trial of an age discrimination lawsuit to a packed room at the Kansas Society of Human Resources Management (SHRM) State Conference in Overland Park.
During the first hour, attorneys for the employer and former employee presented their cases as they would in a real trial – but in a much-abbreviated fashion – including opening statements, direct and cross-examination of witnesses, and closing arguments.
In the second hour, audience members were divided into 10-member juries. The juries received instructions from the judge, selected a foreperson, and deliberated until they reached a verdict.
In case you’re wondering, 30% of the juries found for the employee, and 70% for the employer. The fact that so many juries, all consisting of HR professionals, reached different results underscores how difficult it is to predict how a particular jury might see things. And why it’s important to make and implement HR decisions in a way to lessen the possibility that they will be second-guessed by a jury.  
Participants reported that the mock trial provided a good reminder about the need for ongoing management training (especially for new managers), the importance of keeping personnel policies updated,      Continue Reading...
New Overtime Rule Increases Salary Level to $35,568

On September 24, the U.S. Department of Labor announced its new rule to increase the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime pay requirements. Here are the main points you need to know.

Effective January 1, 2020, the “standard salary level” will increase from the current level of $455 per week to $684 per week (equivalent to $35,568 per year). However, employers may use nondiscretionary bonuses and incentive payments, including commissions, if paid at least annually, to satisfy up to 10% of the standard salary level.

The U.S. DOL estimates that the new rule will affect 1.3 million American workers, who will either become eligible for overtime pay, or must receive a salary increase to the new level to remain exempt from overtime pay.

If your organization has overtime exempt employees who currently earn less than $684 per week, you need to be considering your options and strategy for complying with the new rule now, so you can formulate and implement a compliance plan before the end of the year. This may also be a good time to audit whether your salaried employees satisfy the “job duties test” to be exempt from overtime pay as bona fide executive, administrative, professional, and outside sales employees.

Have You Updated Your Employee Handbook Recently?

As a part of the 2019 HR Training Series, Foulston recently provided a session on employee handbook basics to a group of HR professionals. Here’s a recap of some of the highlights.

Employee handbooks should be updated yearly. It is also important to have employees sign an acknowledgement of receipt after each update. This is because the acknowledgement the employee signed when he or she first started likely applied to a handbook that looked different than the current version.  

Updating the handbook should be a collaborative effort between HR, management, and legal counsel. If the handbook says one thing, but your managers are doing something else, that is a problem. Management buy-in also helps ensure that your policies are being consistently and even-handedly enforced.
Do you have these “must have” policies?
  • At-will employment disclaimer
  • Anti-harassment/productive work environment
  • Equal employment opportunity (EEO)
  • Family and Medical Leave Act (if you have 50 or more employees)
  • Wage deductions
  • Smoke-free workplace
Follow your handbook unless there’s a compelling reason to make an exception. Inconsistencies between the policy and practice could come back to bite you.
For information on upcoming sessions in the 2019 HR Training series, visit www.foulston.com/hrtraining.
New Whistleblower Protections Under Taxpayer First Act

On July 1, President Trump signed the Taxpayer First Act, giving new protections to IRS whistleblowers. Before this act, the IRS could only protect whistleblowers by concealing their identity.

Even without protections against retaliation, the Whistleblower Office of the IRS has still been able to collect over $5 billion in unpaid taxes under the program. This may have something to do with the requirement that the IRS award the whistleblower a percentage of the unpaid taxes collected by the IRS. For 2018, the Whistleblower Office reported that it paid 217 awards to whistleblowers, totaling more than $300 million. The IRS pushed for additional protections for employers in an effort to incentivize more employees to come forward.
The Act creates a private right of action for whistleblowers to sue their employers for retaliation. Employers can no longer discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee for assisting the IRS without risk of liability. Not only does the private right of action apply to the employer, but it applies to individuals as well, such as officers, employees, contractors, subcontractors, or agents of the company. Employees are free to report a company, provide information, or assist a government agency in an investigation for tax underpayments and tax fraud. The employee is also protected from retaliation for reporting anything else the employee reasonably believes is a violation of the IRS tax laws.
Remedies for violations include: reinstatement; 200 percent of back pay and all lost benefits;      Continue Reading...
Teresa Shulda: Wonder Woman in Business

In case you missed it, our very own Teresa Shulda was recently recognized by the Wichita Business Journal as a 2019 Women in Business honoree. Teresa and 26 other commendable Wichita women were awarded for creating successful careers and working to improve their companies and their community. 

Not only is Teresa an active member of our employment and labor team, where she serves as Vice-Chair, she also supports many firm initiatives as a part of the firm’s Associates, Recruiting, Strategic Planning, and Diversity and Inclusion Committees. Outside of the office, she’s a wife, mother, and board member for the Boys and Girls Club of South Central Kansas. Wonder Woman or Teresa Shulda, you say? It’s difficult for us to tell the difference.

If you have attended our annual Employment Law Institute, HR Trainings, or other sessions, you may recognize Teresa as our employment discrimination, FMLA, and ADA guru. We are proud to recognize our lawyer and friend for her well-deserved achievement.

You can view Teresa’s honoree questionnaire and get to know more about her here.

Foulston Presents: Employment Discrimination Mock Trial at SHRM State Conference

Will we be seeing you at the 2019 Kansas SHRM State Conference in September? We’re excited to bring you an interactive, two-part breakout session the last morning of the conference: an Employment Discrimination Mock Trial.

As an HR professional, you are trusted by your employer to make difficult decisions that are legally compliant. However, sometimes personnel decisions can lead to messy lawsuits that may go to trial where a jury will scrutinize your actions. At this Mock Trial, you will get the unique chance to weigh in on a case, learn how the trial process unfolds, and view your actions from a different perspective.

With Foulston attorneys cast as the judge, the trial lawyers, and the witnesses, you will take on the role of the jurors — you will hear the witnesses’ testimony, evaluate the lawyers’ arguments, and then you will deliberate with other jurors to analyze the evidence and reach a verdict.

Hope to see you there! Be sure to arrive early, as seating is limited. You can also catch us in the Marketplace at booth 59. Register now and learn more at: https://2019.ksshrm.org/

What: 2019 KS SHRM State Conference | Employment Discrimination Mock Trial
When: Friday, September 13 | 8:00 – 9:00 AM and 9:15 – 10:15 AM
Where: Overland Park Convention Center | Courtyard 1

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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