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Remembering Jay Rector
By: Boyd Byers

“Work hard, treat each day as a gift, be humble, and try to have some fun along the way.”

This was Jay Rector’s advice to new lawyers. And it was more than lip service; it was how he lived his life. Sadly, that life ended too soon on September 7, 2020, when Jay died unexpectedly of a heart attack at the age of 61. Many of our readers knew Jay, so we wanted to share this tribute to him in our Blog.
Growing up with six siblings in the small town of Vinton, Iowa, Jay learned to work hard at an early age. He attended Iowa State University, where he worked harder at having fun than in classes. After graduating with a degree in industrial administration, he entered the workforce and spent five years with Phillips Petroleum in Bartlesville, Oklahoma.


Seeking a new challenge, Jay went back to school and pursued a law degree at the University of Iowa, where he did work hard. He graduated near the top of his class in 1989. Through serendipity, Jay took a job at Foulston in Wichita, where he became a partner and practiced for his entire legal career.
Jay loved being a lawyer. It was not just a job; it was his identity.
As a labor and employment lawyer, Jay represented some of the largest employers in Kansas. He received numerous recognitions as a top attorney in his practice area. Jay particularly enjoyed working collaboratively      Continue Reading...
Employers Hit with FFCRA Lawsuits
By: Boyd Byers

Through the end of August there were at least 72 lawsuits filed against employers alleging violations of the Families First Coronavirus Response Act (FFCRA). In most of these cases, employees allege they were unlawfully fired after they contracted the virus or requested leave for one of the reasons protected by the FFCRA. In a few cases, employees say they were granted leave, but it was unpaid, and thus seek payment and other damages.

As a refresher, the FFCRA requires certain employers with fewer than 500 employees to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19, which are subject to a corresponding tax credit. Generally speaking, and subject to certain exceptions, employers covered under the Act must provide employees up to two weeks (80 hours or a part-time employee’s two-week equivalent) of paid sick leave, at full pay (up to a $511 per day) if they are subject to a quarantine order related to COVID-19, have been advised by a healthcare provider to self-quarantine related to COVID-19, or are experiencing symptoms related to COVID-19. The Act also provides for up to two weeks of paid sick leave at two-thirds pay (up to $200 per day) to employees if they are caring for an individual who is subject to a quarantine order or has been advised by a healthcare provider to self-quarantine, and up to 12 weeks of paid sick leave and expanded FMLA leave at two-thirds pay (up to      Continue Reading...

DOL Revises Paid Leave Requirements Under FFCRA
By: Boyd Byers

On Sept. 11, 2020, the U.S. Department of Labor issued revisions to its regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revised rule will take effect on Sept. 16, 2020, when it will be published in official form.

Revised Regulations Respond to Court Ruling

These revisions were made to clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions in light of a New York court’s order finding portions of the initial regulations invalid. Specifically, the court set aside four parts of the regulations: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee otherwise has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
In its revised regulations, DOL does the following:

  • Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirms and provides additional explanation for the requirement that an employee must obtain employer approval to take FFCRA leave intermittently.
  •      Continue Reading...
DOL Issues FFCRA Employee Notice Form
By: Boyd Byers

This afternoon the United States Department of Labor (DOL) issued its model notice of employee rights regarding paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The model notice describes information regarding the FFCRA’s paid leave entitlements, eligibility requirements, qualifying reasons for leave related to COVID-19, and the DOL’s enforcement authority. A copy of the notice is available here.

Employers are required to post this notice in conspicuous places on their premises where notices to employees are customarily posted. However, the posting requirement does not become effective until the FFCRA’s effective date, which the DOL says will be April 1. Prior to that date, the DOL will be issuing regulations that should help clarify some ambiguities and further explain employer obligations under the FFCRA. Accordingly, it may make sense for employers to hold off on posting the notice until then, because posting could generate questions about issues on which we are still waiting for DOL guidance. Employers should discuss this with their legal counsel.
You can read Foulston's issue alert about employers’ obligations under the FFCRA here. We’ll provide further information when the DOL issues its regulations. Stay tuned!
Exorcise "Ghost Policies" from Your Employee Handbook
By: Boyd Byers

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...

New Overtime Rule Increases Salary Level to $35,568
By: Boyd Byers

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.

Foulston Partner Assists in Kansas LLC Statute Revisions
By: Boyd Byers

Bill Matthews, partner at Foulston Siefkin LLP and subcommittee member of the Kansas Bar Association (KBA) Section on Corporation, Banking and Business Law, was the principal drafter on the team that prepared revisions to the Kansas Revised Limited Liability Company Act (KRLLCA) and the Business Entity Standard Treatment (BEST) Act that were recently made law. Other subcommittee members included Webb Hecker, Virginia Harper Ho, William Quick, and Garrett Roe.

“Updates to our business entity laws, like the recent updates to the Kansas Revised Limited Liability Company Act, are important because they provide access to the latest innovations in business law to Kansas businesses and help make Kansas an attractive jurisdiction to form and relocate businesses,” Matthews said. The new provisions include permitting the division of an LLC, establishing public benefit LLCs, and wholesale amendments for series LLCs, and modifications address consent/approval, blockchain technology, and default fiduciary duties, among others. Matthews testified in support of the proposed legislation on behalf of the KBA before the Kansas House and Senate Judiciary Committees this spring.

The KRLLCA, modeled after the Delaware Limited Liability Company Act (DLLCA), was adopted in 1999 and replaced Kansas’s original LLC act. The last significant revision to the KRLLCA occurred in 2014 with several amendments between 2014-16, including the adoption of the BEST Act. In 2017, a committee of the KBA’s Corporate, Banking and Business Law section considered amendments to the KRLLCA based on changes to the DLLCA that have occurred, and the resulting bill was introduced to the      Continue Reading...

A Friendly Notice About Two Weeks' Notice
By: Boyd Byers

Many employers have policies stating that employees must provide at least two weeks’ notice of resignation. The reason, of course, is to give the employer time to hire a replacement or otherwise staff the position. Even when not required by policy, two weeks’ notice often is taken for granted as a professional courtesy.

But more and more frequently, statistics say, employees are quitting their jobs without giving advance notice. Even worse, more workers are now “ghosting” their jobs—they just stop showing up without telling anyone.
What’s behind this trend? For starters, the job market has been white hot for a long time. And, the stigma once associated with resigning without two weeks’ notice is waning, particularly among younger workers.
So what can you do to keep employees from quitting without notice?
First, don’t overreact. Most employers practice employment at will, which means that either the employer or the employee can terminate the employment relationship at any time, without cause, and without notice. So, while you could enter into an agreement that requires the parties to provide each other with two weeks’ (or some other) advance notice of termination, most employers simply don’t want to impose such restrictions on themselves. Thus, you need to take the bad with the good.
But that doesn’t mean there aren’t ways—both carrots and sticks—to incentivize      Continue Reading...
Kansas Employment Law Institute - May 2, 2019
By: Boyd Byers

Reserve your spot now! This comprehensive, full-day seminar covers the latest employment law developments you need to know about to keep your organization compliant, as well as human resources best practices and strategies to make it an employer of choice. Sessions will be presented by Foulston’s experienced employment lawyers and a nationally known keynote speaker. Select from a variety of breakout sessions to customize your own schedule.

Featured Keynote Presentation:
Green Goldfish – Beyond Dollars to Drive Engagement and Reinforce Culture presented by Stan Phelps
Happy engaged employees create happy enthused customers. In this keynote, Stan Phelps will share the types of green goldfish – little extras for employees. Attendees will walk away with the knowledge of the key drivers of employee engagement.
Stan Phelps is a Forbes contributor, TEDx speaker, and IBM Futurist focusing on how customer experience and employee engagement can drive differentiation, increase loyalty, and create word of mouth in business.
Register now and learn more at www.foulston.com/employmentlawinstitute
 For more information call 316.291.9723. Be sure to register early! This seminar has sold out in previous years.
This program will be submitted for review of credit through the Society of Human Resource Management (SHRM), HR Certification Institute (HRCI), and Kansas and Missouri Continuing Legal Education Commissions.
FLSA 80 Years Old and Still Kicking
By: Boyd Byers

Eighty years ago today, President Franklin Delano Roosevelt signed the Fair Labor Standards Act (FLSA) into law. The New Deal legislation established minimum wage, overtime pay, recordkeeping, and child labor standards. In response to criticism that the law would overregulate private business, President Roosevelt stated during a “fireside chat” the night before the signing, "Do not let any calamity-howling executive with an income of $1,000 a day, ... tell you ... that a wage of $11 a week is going to have a disastrous effect on all American industry."

Other happenings in the summer of 1938? Joe Louis knocked out Max Schmeling in their rematch to retain his title, the first Superman comic book was issued, and Lou Gehrig retired from baseball and gave his “Luckiest Man on the Face of the Earth” speech. 
The 80 years since then have seen radical changes in technology and the workplace. But, the core principles of the FLSA—a mandatory minimum wage, and premium pay for overtime pay to nonexempt workers—remain in place.
Despite its long history, the FLSA did not become a hotbed for employment lawsuits until a decade ago. Today, lawyers representing employees are eager to bring FLSA claims for a variety of reasons:
  • The law is technical, and even employers with the best intentions can inadvertently violate its requirements.
  • It’s much easier to show a failure to comply with minimum wage or overtime pay requirements than it is to prove discrimination or retaliation.
  • Violations often      Continue Reading...
March Madness Comes to Kansas
By: Boyd Byers

The NCAA Men’s Basketball Championship, better known as “March Madness,” is just around the corner. Things will be extra crazy in Kansas this year, with KU, K-State, and Wichita State all qualifying for the tournament, and Wichita hosting first- and second-round games.

March Madness also means betting pools in which participants fill out brackets to predict the winners. While the practice is common, it may be illegal. And when done on company premises, it can create legal concerns for the employer and affect employee productivity.
Technical Fouls
Gambling is a class-B nonperson misdemeanor in Kansas. In other words, it’s against the law. The penalty can range from a fine to six months in jail.
Kansas law defines gambling as making a bet. A bet is a bargain in which the parties agree that dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet doesn’t include prizes paid to the contestants in any bona fide contest for the determination of skill.
Unauthorized lotteries are also specifically prohibited by the state’s gambling law. A lottery is "an enterprise wherein for consideration the participants are given an opportunity to win a prize, the award of which is determined by chance." Thus, the three elements of a lottery are consideration, chance, and a prize. “Consideration” is the payment of money or anything of value.
Basketball pools, in which contestants fill out a bracket to predict the winner of each      Continue Reading...
Foulston Siefkin Employment Law Institute - May 24, 2018
By: Boyd Byers

Foulston Siefkin LLP will host its annual full-day Employment Law Institute (formerly the Employment Law Seminar) on Thursday, May 24, 2018, in Wichita. Join us for this this informative, entertaining, and highly rated event, which will cover timely topics such as sexual harassment, wage-and-hour and FMLA compliance, the latest agency activity and court cases, and more. Sessions will be led by experienced Foulston Siefkin employment lawyers, guest speakers, and a very timely keynote speaker whose topic has been in the headlines. This seminar’s goal is to help business owners, HR professionals, and employee supervisors more fully understand the laws governing the employment relationship in order to avoid the liability and high costs of litigation that could result from uninformed decisions.

Register and learn more at www.foulston.com.

Christmas Vacation, Free Beer, and the FLSA
By: Boyd Byers

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...
Protect Your Employees, and Your Organization, From Harassment
By: Boyd Byers

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...
Bad Haircut Leads To Unfair Labor Practice
By: Boyd Byers

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...
Exorcise ‘Ghost Policies’ From Your Employee Handbook
By: Boyd Byers
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...
Christmas Vacation, Free Beer, and the FLSA
By: Boyd Byers

In the holiday classic Christmas Vacation, family patriarch Clark Griswold is distressed that he has not yet received his 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, not the bonus he is expecting, but a one-year membership in the Jelly of the Month Club. 

Naturally, Clark has an epic meltdown. Well-meaning but misguided Cousin Eddie then kidnaps Clark’s boss and drags him back to the house, so Clark can confront him about cancelling the 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 was just plain …”
“Sucks,” Clark’s son Rusty interrupts.
After looking around the room at the family’s long faces, Clark’s 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 Griswold home to rescue the kidnapped boss, and Uncle Lewis inadvertently triggers a sewer gas explosion.
Promises, Promises
While cancelling a bonus is a great set up for a comedy movie, year-end bonuses can give rise to legal snags that are no laughing matter for employers. Under state wage payment      Continue Reading...
Have Gun, Will Travel
By: Boyd Byers

This week Kansas lawmakers passed, and governor Brownback signed into law, a bill that says public employers, such as cities and counties, cannot forbid their employees from carrying concealed firearms while on duty. Public employees already have the right to carry concealed firearms while in the workplace, and the new law extends this right to when they travel into the community while on the job. Property owners would be able prevent municipal employees from carrying firearms onto their property only by posting the familiar “no gun” sign.

Supporters said that public employers should not be able to endanger their employees by restricting them from carrying a firearm for protection while on the job. Opponents warned that municipal employees, such as city inspectors and firefighters, can now come to your home carrying concealed weapons without any training. 
Taxi Job Applicant Drives Drunk to Interview
By: Boyd Byers

To say the job interview did not go well would be an understatement. This week Ryan Dickson arrived for his interview at Trans Iowa, a taxi and shuttle company, with the hope of landing a job. Instead, he landed in jail. 

While trying to park, Dickson backed into another car. He then pulled forward, crashing into the car in front of him. From there he staggered into the building for his interview. An employee on her smoke break saw it all and called the cops.
Dickson blew a .273 on his breath test, three times the legal limit, according to the police report. At first he said he hadn’t been drinking. But later he fessed up. He told police he had been drinking until 2 o’clock that morning, when he went to the hospital because of his alcohol intake. After being released at 8 a.m., he drank a fifth of vodka and then headed to the interview, he reported. Presumably he did not get the job.  
While this case is an extreme example, it’s a good reminder than you can learn a lot about a job candidate beyond what he or she says during the interview with the hiring manager. More and more, companies are making a point to solicit feedback from every employee who meets a potential new hire, including the receptionist and administrative support staff. You can learn a lot about a job seeker based on how he or she treats the receptionist. If the candidate is rude, condescending, or      Continue Reading...
EEOC Proposes Changes to EEO-1 Report to Collect Pay Data
By: Boyd Byers

Last week the U.S. Equal Employment Opportunity Commission announced a proposed revision to the Employer Information Report (EEO-1) to include collecting pay data from employers. EEOC says this new data will assist the agency in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces. Symbolically, the announcement came on the seventh anniversary of the Lilly Ledbetter Fair Pay Act.

The EEO-1 is a well-established, annual report. Every year by September 30, private employers with at least 100 employees (or 50 employees for covered government contractors) must tally and report their employee numbers by job category and then by sex, race, and ethnicity. There are ten job categories and seven race and ethnicity groups. The new proposal would build on the existing structure to also require employers to collect and report aggregate pay data, based on 12 specified pay bands, beginning with the September 2017 report. Thus, employers would have to tabulate and report on the number of employees whose W-2 wages for the prior 12 months fell within each of the 12 pay bands, within each of the 10 job categories, broken down by sex and race/ethnicity, as well as the total number of hours worked by the employees within each sex and race/ethnicity group within each pay band within each job group. That adds up to 3,600 data fields! And to make matters more complicated, the W-2 wages and total hours worked are not calendar year totals, but are for the 12 month-period prior to      Continue Reading...
KHRC on Twitter
By: Boyd Byers

The Kansas Human Rights Commission announced today that it has joined Twitter.  The Commission says it intends to provide helpful information, resources,  links, and tweets. You can follow KHRC at @KansasHRC. 

EEOC Issues Proposed Retaliation Guidance
By: Boyd Byers

The U.S. Equal Employment Opportunity Commission (EEOC) issued proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws yesterday. The EEOC’s enforcement guidance documents are not regulations, but are intended to inform the public about the EEOC’s interpretation of the law and promote voluntary compliance. 

The EEOC’s last updated its guidance on retaliation in 1998. Since then, the Supreme Court and lower courts have issued numerous significant rulings regarding retaliation under employment discrimination laws. The percentage of retaliation charges has doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all charges against non-government employers filed in fiscal year 2014 included retaliation claims.
Parts of the proposed guidance contradict pro-employer court rulings. The guidance concludes with a list of “best practices” for employers to utilize to try to minimize the likelihood of retaliation violations.
1.         Written Anti-Retaliation Policy
Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do. According to the EEOC, the policy should include:
·         Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment, but are actionable as retaliation because they would deter a reasonable person from engaging in protected activity.
·         Proactive steps for avoiding actual or perceived retaliation, including interactions by managers and supervisors with employees who have lodged discrimination allegations against them.
·         A reporting mechanism for employee concerns about      Continue Reading...
Christmas Vacation, Free Beer, and the FLSA
By: Boyd Byers

In the holiday classic Christmas Vacation, family patriarch Clark Griswold is distressed that he has not yet received his 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, not the bonus he is expecting, but a one year membership in the Jelly of the Month Club. 

Naturally, Clark has an epic meltdown. Well-meaning but misguided Cousin Eddie then kidnaps Clark’s boss and drags him back to the house, so Clark can confront him about cancelling the 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 was just plain …”
“Sucks,” Clark’s son Rusty interrupts.
After looking around the room at the family’s long faces, Clark’s 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 Griswold home to rescue the kidnapped boss, and Uncle Lewis inadvertently triggers a sewer gas explosion.
Promises, Promises
While cancelling a bonus is a great set up for a comedy movie, year-end bonuses can give rise to legal snags that are no laughing matter for employers. Under state      Continue Reading...
J-Law and the ‘Hustle’ for Equal Pay
By: Boyd Byers

The final installment of The Hunger Games movie franchise opened this past weekend. And star Jennifer Lawrence (affectionately known to her fans as J-Law) is saturating the media.

But last month J-Law made headlines for another reason: her essay about gender pay inequity. In her rant, J-Law addressed revelations from the Sony Pictures Entertainment data hack that she and Amy Adams were paid less than their male co-stars in American Hustle. When she found out about the pay difference she wasn’t mad at Sony, she was mad at herself, she wrote.
“I failed as a negotiator because I gave up early. I didn’t want to keep fighting over [the money].” A need “to be liked” and fear of appearing “difficult” kept her from demanding more money, she said. And, “based on the statistics, I don’t think I’m the only woman with this issue.”
Does J-Law know what she’s talking about? The data and the law seem to back her up.
Research studies suggest that on average women are less likely than men to negotiate for more pay; and, when they do, they are less likely to be successful and more likely to face backlash. Employers need to be aware of this dynamic, because it can unwittingly lead to pay disparities that expose them to low morale, talent flight, and legal challenges.  
The Equal Pay Act prohibits sex-based wage disparity for equal work at the same establishment. The jobs do not have to be identical, but they must be substantially equal in terms of skill, effort,      Continue Reading...
All I Really Need to Know About HR I Learned in Kindergarten?
By: Boyd Byers

Several human resources managers I work with sometimes refer to employees as their “children” and joke that at times (particularly when dealing with their “problem children”) they feel more like grade school teachers than HR managers. A recent study reaffirms the inherent truth in this analogy. 

Childish behavior is not confined to elementary school playgrounds, but is prevalent in today’s workplace, according to a new survey by Harris Poll on behalf of CareerBuilder. Over 75 percent of employees report that they have witnessed some type of childish behavior among colleagues in the workplace. Over half of those surveyed (55%) report whining by colleagues. (The only thing surprising here is that the number is not higher.) Just under half (46%) have witnessed co-workers pouting when something didn’t go their way. (That seems about right.) But what surprised me are the high rates of truly juvenile behavior, such as: making a face behind someone’s back (35%); forming a clique (32%); starting a rumor about a co-worker (30%); storming out of the room (29%); throwing a temper tantrum (27%); and refusing to share resources with others (23%). No wonder HR managers sometimes feel like elementary school teachers!
So how big is the problem? Dale Carnegie taught that when dealing with people, you need to remember you are not dealing with creatures of logic, but creatures of emotion. When humans are involved, emotions can trigger illogical, even childish, behavior. When such behavior is demeaning or distracting to others, it is unquestionably inappropriate. Childish behavior is bad      Continue Reading...
Remembering Yogi
By: Boyd Byers

America lost one of its most-loved  and iconic sports legends when Yogi Berra passed away at age 90 earlier this week. Yogi was truly one of a kind—as much of a character as he was a great catcher. Make no mistake about it, Yogi was one of the best baseball players ever: 15-time All Star; 10-time World Series winner; and three-time MVP. He went on to become a successful manager, leading both American and National League teams to the World Series. But Yogi became equally famous for his “Yogi-isms,” colloquial expressions that seem nonsensical but convey deeper  meaning—bits of wisdom and wit that get to the truth in a hurry. Here are some of the most memorable Yogi-isms and what human resources professionals and personnel managers can take away from these nuggets. 

  • “You’ve got to be careful if you don’t know where you’re going ‘cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).
  • “We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there. 
  • "It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices      Continue Reading...
Federal Contractors Will Have to Provide Paid Sick Leave
By: Boyd Byers

On Labor Day, President Obama issued an Executive Order (“EO”) directing the Secretary of Labor to issue regulations by September 30, 2016, implementing mandatory paid sick leave for employees of federal contractors and subcontractors. Assuming regulations are issued on schedule, the rules will apply to new federal contracts beginning January 1, 2017.

Covered Contractors
Subject to minimum thresholds, the EO applies to new contracts if employees’ wages under the contract are governed by the Davis-Bacon Act, the Service Contract Act, or the Fair Labor Standards Act, and if the contract fits into one of the following four categories:
  • procurement contracts for services or construction;
  • contracts for services covered by the Service Contract Act;
  • contracts for concessions; or
  • contracts entered into with the federal government in connection with federal property or ands and related to offering services for federal employees, their dependents, or the general public. 
Under the EO, employees must receive at least one hour of paid sick leave for every 30 hours worked, up to 56 hours each year. Contractors may adopt policies limiting the total number of hours each employee is able to accrue per year, so long as employees are entitled to the minimum 56 hours. Employees may use this sick leave to care for themselves or for a family member (including preventative care) and for absences resulting from domestic violence or sexual abuse.
Employees may request leave orally or in writing and must provide      Continue Reading...
Wrestling Over Equal Pay
By: Boyd Byers

After winning an Oscar for her role in Boyhood, Patricia Arquette concluded her acceptance speech with an impassioned demand for equal pay: "To every woman who gave birth to every taxpayer and citizen of this nation, we have fought for everybody else's equal rights. It's our time to have wage equality once and for all, and equal rights for women in the United States of America." The audience responded with wild cheers. Meryl Streep and Jennifer Lopez even got up out of their seats and waved their arms.

Not surprisingly, Hillary Clinton, Labor Secretary Tom Perez, and other Democrats praised Arquette's comments and used them to draw attention to the issue of equal pay. "I think we all cheered at Patricia Arquette's speech at the Oscars -- because she's right," Clinton told an audience of working women the next week.

Arquette's message also received support from an unexpected source: A.J. Lee, a three-time World Wrestling Entertainment (WWE) women's champion and one of the most-popular female wrestlers on the circuit. It started when Stephanie McMahon, one of WWE's owners, tweeted, "Thank You @PattyArquette for having the courage to fight for #WomensRights on such a grand platform." Lee then retweeted it, but added a haymaker directed toward McMahon: "Your female wrestlers have record selling merchandise and have starred in the highest-rated segment of the show several times, and yet they receive a faction of the wages and screen time of the majority of the male roster." Wrestling fans showered Lee with support.

Does Lee have      Continue Reading...

What's Going On Under the Green Dome?
By: Boyd Byers

Budget issues and school finance reform continue to dominate the 2015 Kansas legislative session. But two interesting employment-related bills have been introduced. The first would limit employers from obtaining and using criminal background information in making hiring and other employment decisions. The second proposed law would amend the Kansas Act Against Discrimination to expand the range of protected classifications to include sexual orientation and gender identity.

The Committee on Veterans, Military, and Homeland Security introduced House Bill 2343, titled "An Act relating to employment; concerning fair consideration for persons with a record of criminal convictions." The bill includes the following provisions:

  • An employer may not conduct background checks on applicants unless it has made a good faith determination that the relevant position is of such sensitivity that a background check is warranted or if a background check is required by any federal or state law.
  • All job announcements and position descriptions must contain the following information if the position requires a background check (unless otherwise required by law): "This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate."
  • Job applications may not inquire into an applicant's conviction history.
  • An employer may not use records of an arrest not followed by a valid conviction, or sealed, dismissed, or expunged convictions.
  • An employer may not inquire into or consider      Continue Reading...
Can Angry Birds Make Employees Happy (and Productive)?
By: Boyd Byers

Do you want employees to be more productive and happier during the workday? According to research from Kansas State University, allowing employees to take short breaks to text friends, play Angry Birds or Candy Crush, or check Facebook on their smartphones may help. Here's the story, written by K-State's Division of Communications and Marketing, reprinted with permission.

In his latest research, Sooyeol Kim, doctoral student in psychological sciences, found that allowing employees to take smartphone microbreaks may be a benefit — rather than a disruption — for businesses. Microbreaks are nonworking-related behaviors during working hours.

Through a study of 72 full-time workers from various industries, Kim discovered that employees only spend an average of 22 minutes out of an eight-hour workday playing on their smartphones. He also found that employees who take smartphone breaks throughout the day are happier at the end of the workday.  

"A smartphone microbreak can be beneficial for both the employee and the organization," Kim said. "For example, if I would play a game for an hour during my working hours, it would definitely hurt my work performance. But if I take short breaks of one or two minutes throughout the day, it could provide me with refreshment to do my job."
To study smartphone usage, Kim and collaborators developed an application that the 72 study participants installed on their smartphones. The app privately and securely measured the employees' smartphone usage during work hours. The app also divided the employees' smartphone usage into categories such as entertainment, which      Continue Reading...
Royals, Royals, Royals
By: Boyd Byers

Kansas City Royals baseball fever has spread like the plague. So I'm taking advantage of that to sucker you into reading this article with my headline. As a lifelong and long-suffering Royals fan, I have savored every pitch, every hit, and every catch of this year's magical playoff run to the World Series. It's been fun to see general manager Dayton Moore's vision for building a championship team come to fruition. That reminded me of an article I wrote a couple years ago about the lessons HR managers can learn from big league baseball and the Royals. (Who knew I was such a visionary?!) Here's an updated version of that article. 

As a faithful Kansas City Royals fan, I’ve closely followed general manager Dayton Moore’s efforts over the past several years to assemble a winning team with a limited budget. Watching “the process,” as some call it, I’ve come to realize that in many ways general managers are baseball’s version of human-resources managers.

Professional baseball is not just a game; it’s big business. And the general manager (GM) is the central figure in putting together coaches and players to create a successful team.
The GM is hired by and reports to the owners. Working together with ownership, the GM is responsible for all personnel decisions, such as which coaches and players to hire and fire. Gleaning information from scouts and coaches, the GM decides which players to draft, trade for, pursue in free agency, or re-sign. The GM then must negotiate salaries and contract terms. Once players are signed,      Continue Reading...
Drunk employee who fell through roof still gets workers’ comp
By: Boyd Byers

After throwing back a few beers on a Sunday morning, an employee was instructed to repair the roof of a building. While he was on the roof, a swarm of ants attacked him, and he fell through the roof as he tried to brush them off. Although the employee’s blood alcohol level was over .09 percent at the time of the accident and he tested positive for marijuana and cocaine, the Kansas Court of Appeals held that the Workers’ Compensation Board was justified in awarding him workers’ comp benefits. The employer failed to show the employee’s intoxication “contributed to” his injury (a defense to workers comp liability) because a sober person could just as easily have fallen through the roof in the same circumstances. The case is Gideon v. Yost Properties.

Kansas Legislature Sends Teachers’ Due Process Rights Out for Recess
By: Boyd Byers

The Kansas Legislature passed, and the governor signed, House Bill No. 2506, which eliminates due process rights for most Kansas public school teachers, including elementary, junior high, and high school teachers. The new law does this by narrowly defining “teacher” to include only teachers and instructors at community colleges and technical colleges.  Accordingly, the statutory due process procedures for challenging a proposed termination apply only to these types of public teachers.  

Teachers employed by school districts will continue to receive contracts on a yearly basis. Both the teacher and the school district must provide proper notice of the intent not to renew the teacher’s contract for the succeeding school year. Previously, upon receipt from the school district of a notice of its intent to not renew a contract, the teacher would have had an opportunity to challenge the non-renewal through a due process hearing. The new law takes effect on July 1, 2014. 
Municipalities Subject to New Employment Rules Relating to Handguns
By: Boyd Byers

A new Kansas law (House Bill No. 2578) addresses a variety of issues relating to the regulation and possession of firearms and knives.  Many of the changes relate to municipal ordinances, the disposition of firearms confiscated by courts, or criminal laws. Most notably, the law prevents municipalities from enacting or enforcing laws restricting the purchase, transfer, ownership, storage, carrying, or transporting of guns or ammunition. This law also includes a number of provisions pertaining to employees’ concealed carry rights that may require many municipalities to change their employment policies and practices.   

Here are some of the new provisions:    
  • Municipalities are prohibited from requiring employees to disclose whether they possess a valid license to carry a concealed handgun. 
  • Employees of municipalities may not be terminated, demoted, disciplined, or otherwise discriminated against because of a refusal to disclose whether the employee possess a valid license to carry a concealed handgun.  
  • Municipalities may not create or maintain records regarding an employee’s possession of a valid license to carry a concealed handgun or that the employee has disclosed whether he or she possesses such a license.  All records of such information must be destroyed by July 31, 2014.  
  • Municipalities may prohibit the unconcealed carrying of a firearm into municipal buildings, so long as the building is conspicuously posted in accordance with the rules and regulations issued by the attorney general.    
What A Short, Strange Trip It’s Been
By: Boyd Byers

Has it really only been a week since the Kansas House of Representatives passed House Bill 2453? Supporters said it simply protects religious liberty. Opponents countered that it sanctions discrimination against same-sex couples; allows police officers, fire fighters, and other government employees to refuse to provide basic or emergency services to tax payers; and imposes significant burdens on Kansas employers. A nationwide hullabaloo ensued.

House Bill No. 2453 is titled “an act concerning religious freedoms with respect to marriage.” Section 1 of the bill provides, “Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender: … Provide any services, accommodations, advantages, facilities, goods, or privileges … or provide employment or employment benefits, related to … any marriage, domestic partnership, civil union or similar arrangement.” The term “religious entity” is broadly defined to include: (1) any “religious corporation, association, educational institution or society;” (2) any entity “connected with” such a religious organization; or (3) “a privately-held business operating consistently with its sincerely held religious beliefs.”
Section 2 provides that individuals or religious entities that refuse to provide services, employment, or employment benefits “related to” any such relationship, because of their religious beliefs, are shielded from civil claims or government penal action. Section 2 also says that if an employee of any employer (even the government or a non-religious      Continue Reading...
Report from the Legislative Front
By: Boyd Byers

The 2014 Kansas legislative session is in full swing. Unlike the last two years, where well-supported bills to overhaul parts of the Kansas workers compensation, wage payment, and unemployment laws were on the agenda, this year there are no major employment law bills on the horizon. But there are bills that would have collateral impact on the employer-employee relationship if they become law. One such bill is House Bill 2473, which addresses a variety of issues relating to the possession of firearms. 

Many of the bill’s proposed changes relate to municipal ordinances, the disposition of firearms confiscated by courts, or criminal laws. Most notably, the bill would prevent municipalities from enacting or enforcing laws that restrict the open carrying of firearms.
The bill contains several provisions relevant to municipal employees, including the following: 
  • Municipalities are prohibited from requiring an employee to disclose whether the employee possesses a valid license to carry a concealed handgun. 
  • Municipalities may not terminate, demote, discipline, or otherwise discriminate against an employee due to the employee’s refusal to disclose the fact that the employee possesses a valid license to carry a concealed handgun. 
  • Municipalities cannot create or maintain any record of whether an employee possesses a valid license to carry a concealed handgun or that the employee has disclosed that he or she possesses such a license.   
  • Municipalities may not be held liable for any wrongful act or omission related to the actions of any      Continue Reading...
Hidden Bias Revisited
By: Boyd Byers

Earlier this month The Wall Street Journal ran an interesting article about hidden or unconscious biases and their influence on workplace decisions. Such blind spots can be based on height, tattoos, and gregariousness, as well as protected characteristics such as race and age. Aside from the obvious legal implications, the failure to overcome hidden biases can result in bad decisions, costing companies money. So, as the article reports, more U.S. companies are providing unconscious-bias training. Years ago I wrote an article about hidden bias in the workplace, and what employers can do to identify and address it. (Who knew back then that I was so cutting edge?) You can read it by clicking here: Freakonomics, the Weakest Link, and Implicit Bias.

Dealing with Workplace Imposters
By: Boyd Byers

You probably saw the video clips or at least heard about the fake sign language interpreter at Nelson Mandela’s memorial service. As President Obama and other dignitaries addressed the crowd, the interpreter, Thamsanqa Jantjie, stood on stage next to them and flapped his arms and hands around making meaningless gestures. “It was almost like he was doing baseball signs,” deaf actress Marlee Matlin said. “I was appalled.” Jantjie had faked his credentials and managed to get a security clearance pass, much to the embarrassment of South African officials. It was later discovered that he suffered from schizophrenia and had been accused of murder. While this was an extreme case, it is not uncommon for job applicants to lie about their credentials. Studies show that one-fourth to one-half of job seekers provide false information about their education, experience, or other background information to prospective employers. For steps you can take to detect and deal with workplace imposters, click on the following link to a prior post on this topic. (The Great Imposter (07/29/2011)) A little work on the front end can save you headaches and money in the long run.

'Fountain Lady' Saga Teaches Lesson in Unemployment Benefit Law
By: Boyd Byers

You may recall the young woman who became an Internet sensation last summer when video of her romp through a fountain at a Kansas City Royals game was posted on YouTube. Jessica McCoy, who is from Iowa, attended the game while on vacation. For reasons unknown (more on that below), she hopped in and sloshed through the waist-high pool—holding her drink up in the air—as the crowd cheered. 

But the security officers who chased after her, and then chased after her again after she escaped from handcuffs and jumped back into the fountain, did not cheer. McCoy was charged with trespassing, resisting arrest, and soliciting a police officer.
McCoy’s employer, First American Bank in Beaverdale (a Des Moines suburb), did not cheer either. By the time McCoy returned to work the next week, video and news stories about the “Fountain Lady” frolic had gone viral. The bank fired McCoy, a financial services representative, for violating a company policy that prohibits off-duty conduct that reflects poorly on the bank or causes management to lose faith in the employee.   
McCoy filed for unemployment benefits. During a hearing in October, the administrative law judge asked her why she was in the fountain. “I was under the influence of alcohol,” McCoy answered. Not satisfied with the response, the judge pressed on, “And you were in the fountain because . . . ?” “And I just honestly can’t answer that,” McCoy explained, “It just at the time seemed like a fun idea.”
The judge awarded McCoy unemployment benefits. The      Continue Reading...
Mandatory Flu Shots and Unintended Side Effects
By: Boyd Byers

Here's a great article by Foulston Siefkin lawyer Lindsey Smith that we wanted to share with you:

‘Tis the season to fill workplace hallways with the sounds of coughing and sneezing. While no one wants to come down with the flu, what’s an employer supposed to do? Rhymes aside, if your organization has a mandatory flu shot policy, here are some key considerations to help keep your employees healthy and happy.

Can you require all employees to get a flu shoot?
Kind of. Mandatory flu shots are particularly prevalent in the healthcare field, and generally employers can mandate flu shots for employees. But, while employer-sponsored flu shots should be a good thing, some employees don’t see it that way, and you may have to make some exceptions to your policy.
Religious Exceptions
Under Title VII, an employee whose religious beliefs prevent him or her from taking vaccinations must be provided a reasonable accommodation unless it would pose an undue hardship. Typically, an employee with a sincerely held religious belief opposing vaccination cannot be forced to get a flu shot or fired for refusing the shot.
Employers should also be wary of non-traditional religious assertions. For example, the Cincinnati Children's Hospital adopted a policy requiring all employees to get a flu shot. One employee refused on the basis that she      Continue Reading...
Exorcise "Ghost Policies" from Your Employee Handbook
By: Boyd Byers

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,      Continue Reading...
Gaga Case Goes Bye-Bye
By: Boyd Byers

Kansas Employment Law Blog's action news team brings you the hard-hitting stories and latest news from the world of employment law. Consistent with that mission, it is our duty to report that yesterday Lady Gaga has reached an out-of-court settlement with her former personal assistant, who claimed the pop diva owed her nearly $400,000 in unpaid overtime under the FLSA for work performed over a 13-month period.

We've been following the case for nearly a year. (Gaga over the FLSA Monster (01/27/2013); Court Not Goo-Goo over Gaga--the FLSA Monster Revisited (10/03/2013).) Jennifer O'Neill, Gaga's (now former) friend, served as her personal assistant during a world tour. O'Neil alleged she was paid a base annual salary of $75,000, but was cheated out of thousands of hours of overtime while she was on call 24/7 to attend to Gaga's every need. Last month the court ruled that O'Neill had enough evidence to take her FLSA claims to trial, where a jury would need to decide whether her on-call time was compensable. But rather than endure a trial, which was scheduled to start on November 4, Gaga decided to open up her purse and settle the case. The amount of the settlement was confidential. But whatever she has to pony up, Gaga should be able to cover it--she earned $80 million in the first six months of 2013, according to Forbes

In our original article about the case (link above), we identified seven lessons HR professionals can learn from this case. Here are four more takeaways: 

(1) Overtime wages can rack up quickly when you mistakenly treat an employee as exempt from the FLSA. So make sure any employees who are treated as salaried exempt, and thus not      Continue Reading...

New Affirmative Action Rules for Government Contractors
By: Boyd Byers
Federal contractors and subcontractors now must adopt quantifiable goals for the employment of individuals with disabilities and protected veterans, according to new regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs. The new Rehabilitation Act regulations require contractors to establish a “utilization goal” of having 7 percent of their workforce be comprised of persons with disabilities. Similarly, the new regulations under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) require contractors to establish a “benchmark” for hiring veterans. Contractors may either use the national percentage of veterans in the civilian labor force, which currently stands at 8 percent, or develop their own hiring benchmark based on factors listed in the regulations.
Both sets of new regulations point out that the respective utilization goals and benchmarks are neither rigid quotas, nor are they floors or ceilings on the hiring and employment of individuals with disabilities or protected veterans. A contractor’s failure to meet these metrics, however, will invite government scrutiny into the adequacy of its affirmative efforts to recruit and employ members of these protected classes.
In addition to these new metrics, the regulations impose additional data collection, self-identification, and other requirements on contractors. For example, contractors now must collect and retain data regarding the total number of job openings and jobs filled; the total number of job applicants and the number of applicants known to have disabilities or to be veterans;      Continue Reading...
Memorable Job Candidates
By: Boyd Byers

During a job interview, the HR manager asked the applicant, "What's your greatest weakness?" The applicant answered, "Honesty." The HR manager followed up, "I don't think honesty is a weakness." To which the applicant retorted, "I don't give a sh*t what you think."

That joke is a classic. But there are plenty of real-world interviews that are just as funny. In a recent survey by CareerBuilder, hiring managers and HR professionals were asked to share the most-memorable methods candidates used to stand out from the crowd, and whether their creativity backfired or got them hired.   

Here are some my favorite techniques that (not surprisingly) didn't work so well for the candidate:

  • Back-flipping into the room.
  • Dressing like a clown.
  • Doing a tarot card reading.
  • Giving the interviewer a lotto ticket.
  • Sending a fruit basket to the interviewer's home address . . . which the interviewer hadn't given her.

Some memorable interviews that resulted in job offers included the following:

  • Repairing a piece of company equipment during the interview.
  • Asking to be interviewed in Spanish to showcase his skills.
  • Volunteering to help make copies when he saw the interviewer's assistant was frazzled.

You can read the top 10 successful and unsuccessful methods here. Has an applicant you interviewed ever pulled a memorable stunt, and did it work? Tell      Continue Reading...

Court Not Goo-Goo over Gaga—the FLSA Monster Revisited
By: Boyd Byers

Earlier this year we reported on a lawsuit against pop diva Lady Gaga by a former personal assistant for unpaid overtime. (See Gaga over the FLSA Monster.) For those of you waiting on the edge of your seat to see how the case turned out, here's an update.

If you're late to the party, here's the back story. Stefani Germanotta (aka “Lady Gaga”) hired Jennifer O’Neil, a friend, as her assistant. O’Neil was told that she would receive $75,000 as an annual salary, but nothing was said about overtime. Things went bad, O’Neil was fired, and she now claims Gaga failed to pay her overtime wages when she was “working and/or on call every hour of every day” while on tour with Gaga.

O’Neil had various responsibilities, such as cleaning Gaga’s hotel room, ensuring Gaga was “hopefully” on time to places, making sure Gaga ate and drank when she needed, and handling Gaga’s extensive luggage—generally twenty bags. According to O’Neil, Gaga would wake her during the night to take out a DVD and replace it with another because Gaga was tired of the movie she was watching.
In September, a New York court denied Gaga's motion to dismiss O’Neil’s FLSA claim for unpaid wages for on-call time. The court explained that “on-call time can constitute work and is compensable under the FLSA where the employer restricts an employee’s ability to use the time freely for his or her own benefit.” This includes periods of inactivity that are unpredictable and usually of short duration, as the      Continue Reading...
‘Not so fast,’ Kansas AG tells EEOC
By: Boyd Byers

The college football season is upon us. Which means the return of the antics and banter of Lee Corso, Kirk Herbstreit, and Chris Fowler on ESPN’s College GameDay program. As part of their weekly shtick, Herbstreit makes a prediction about a game, to which Corso expresses wild disagreement, uttering his catchphrase, “Not so fast, my friend!”

Last year the Equal Employment Opportunity Commission issued controversial enforcement guidance regarding the use of arrest and conviction records in employment decisions. This summer the EEOC put its playbook into action by suing two employers, BMW and Dollar General, for their use of criminal background checks. In response, the Kansas Attorney General (along with the AGs from eight other states) said, “Not so fast!” Well, not literally. And, unlike Lee Corso, they did not say “my friend.” What the AGs actually said, in an open letter to the EEOC, is that the guidance and lawsuits are “misguided” and “a quintessential example of gross federal overreach.”  Boo Yah!
Things went from bad to worse for the EEOC two weeks later, when a federal court punted the commission’s lawsuit against another employer based on its use of criminal background checks. The EEOC alleged that the background checks caused a disparate number of African-American and male workers to be disqualified from jobs. But the court threw out the case, calling the EEOC’s analysis “flawed,” “rife with analytical errors,” “laughable,” and “an egregious example of scientific dishonesty." Read the play-by-play below.
EEOC game plan
In April of last year, the EEOC issued Enforcement Guidance      Continue Reading...
Miss Utah and the Equal Pay Act
By: Boyd Byers

She didn’t win the crown, but Miss Utah made the most news after the Miss USA pageant this summer. Her bungled response to a question about the gender pay gap went viral and was seen by millions on the Internet. But it also generated serious discussion about equal pay.   

'Create education better'

The question: “A recent report shows that in 40 percent of families with children, women are the primary earners, yet they continue to earn less than men. What does this say about society?”
Miss Utah’s answer: “I think we can relate this back to education and how we are continuing to try to strive to … [long pause] figure out how to create jobs right now—that is the biggest problem. And, I think, especially the men are, um, seen as the leaders of this and so we need to figure out how to create education better so that we can solve this problem.” Cringe.
Predictably, Miss Utah’s epic fail lit up the twitterverse and blogosphere. But she got a chance at Web redemption on the “Today” show a few days later. She told host Matt Lauer that the question was “confusing” to her. So he gave her a do-over. Her new (scripted and rehearsed) answer was far better: “So this is not okay, it needs to be equal pay for equal work, and it's hard enough already to earn a living and it shouldn't be harder just because you're a woman."
Miss Utah’s question was prompted by the 50th anniversary of the Equal      Continue Reading...
Talkin' Baseball and Unemployment
By: Boyd Byers

July 1 marks the midway point of the Major League Baseball season. July 1 is also the day significant changes to the Kansas unemployment law take effect. These amendments are mostly favorable to employers. Among other things, the changes make it more difficult for employees to qualify for benefits when they are fired for attendance, drug or alcohol use, or violating a workplace rule or policy. It’s also now harder for employees to obtain benefits when they voluntarily quit. Foulston Siefkin lawyer Forrest Rhodes wrote a great baseball-themed article about the unemployment law amendments and how they “level the playing field.” We are sharing it with our blog readers below.

Amendments Help to Level the Unemployment Playing Field

By Forrest Rhodes
Few situations drive an HR professional crazier than terminating an employee for legitimate policy violations and then seeing the employee get awarded unemployment benefits.  Whether driven by the volume of benefits paid out over the last several years or perhaps simply to level the playing field, in April 2013 the Kansas Legislature made numerous amendments to the employment security (more commonly known as unemployment) laws that should help to reduce how often benefits are paid in these situations. 
The amendments, which take effect on July 1, 2013, are largely favorable to employers.  In several situations the amendments ease the standard required to      Continue Reading...
EEOC Sues Employers Over Criminal Background Checks
By: Boyd Byers

Last year the EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decision Under Title VII of the Civil Rights Act of 1964. As explained in the Guidance, an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate prohibitions against employment discrimination, particularly with regard to race and national origin. This can occur when an employer's neutral policy disproportionately impacts persons of a particular race or national origin, and the policy is not job-related and consistent with business necessity. Last week the EEOC put its money where its mouth is by suing two employers, BMW and Dollar General, for their use of criminal background checks.     

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The EEOC alleges that after BMW ended its contract with UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at a manufacturing facility, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse.  As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the      Continue Reading...

Should You Let Employees Buy and Sell PTO?
By: Boyd Byers

School is out, summer is upon us, and many workers soon will be taking vacations. With visions of sandy beaches, national parks, and Wally World (Chevy Chase's destination in the movie Vacation) dancing in our heads, now is a good time to take stock of your vacation or paid time off (PTO) policy.

More employers are allowing workers to buy and sell vacation time, according to a Society for Human Resource Management study. The study shows that 52 percent of employers (up from 42 percent in 2009) now offer PTO plans that combine vacation time, sick leave, and personal days into one comprehensive plan, to give employees more flexibility in managing their time off. Of these, almost 20 percent offered a cash-out option. And five percent of all employers are taking the more-novel approach of letting workers buy more vacation time through a payroll deduction. 

Could such a policy provide a low-cost perk to help with employee recruitment and retention, and improve more morale and productivity, at your organization? Give it some thought. But be sure to work with an experienced employment lawyer to help develop such a program before you roll it out, to ensure you don’t run afoul of some tricky wage payment law and tax law issues these policies present (“constructive receipt” and “condition subsequent” anyone?).

Beware of the Devil in the Details—What Employers Should Do and Need to Know about the Kansas Wage Payment Act Amendment
By: Boyd Byers

Last month we told you about the amendment to the Kansas Wage Payment (KWPA), which goes into effect on July 1. In short, the changes greatly expand the circumstances under which employers may make payroll withholdings or deductions without violating the KWPA. To maximize your organization’s ability to avail itself to these new provisions, you should consider having employees (at least the non-exempt ones) sign agreements prospectively authorizing deductions to cover any past or future payroll overpayments, loans, advances, or failure to return or pay for employer-provided merchandise. But be careful in applying your new rights under the KWPA to exempt employees.  Even if making a certain deduction is allowed by Kansas law, doing so could present potential liability under the federal Fair Labor Standards Act (FLSA).  Read on to understand why.

Under the KWPA amendment, employers are now authorized to make the following deductions and withholdings.
First, upon a signed written agreement between the employer and employee, an employer may deduct or withhold an employee's wages for the following purposes:
  1. as repayment of a loan or advance the employer made to the employee during the course of and within the scope of employment;
  2. to recover a payroll overpayment; and
  3. to compensate the employer for the replacement cost or unpaid balance of the cost of the employer's merchandise or uniforms purchased by the employee. 
Second, upon providing written notice and explanation to the employee (even if there is no written agreement),      Continue Reading...
Changes to Unemployment Law Make It Harder to Get Benefits
By: Boyd Byers

Kansas employers are often frustrated about the seeming ease with which employees qualify for unemployment benefits, even when they are fired for bad behavior, or when they quit over what the employer perceives as a trifle. Substitute House Bill 2105, signed by Governor Brownback on April 16, amends numerous provisions of the employment security statutes, including definitional sections that determine disqualification for benefits.  The new law will go into effect on July 1, 2013.  Among the changes, the new legislation:  (1) increases the taxable wage base for contributions made by employers; (2) links to the state’s unemployment rate the number of weeks a person is eligible for unemployment benefits; (3) revises numerous definitions, including “good cause,” “misconduct,” and “gross misconduct”; and (4) strengthens existing provisions related to drug and alcohol testing and terminations resulting from positive tests.  

The definitional changes will make it more difficult for persons to qualify for unemployment benefits under certain circumstances.  Under existing law, an individual who voluntarily leaves employment without good cause is disqualified for benefits.  What is and what isn't good cause is often a subject of great dispute. The new law defines “good cause” to mean a cause of such gravity that a reasonable, non-supersensitive person, exercising ordinary common sense, would leave employment. Good cause also requires a showing of good faith of the individual leaving work. Twelve exceptions in the law prevent a person from being disqualified for benefits, however. The seventh exception, pertaining to harassment, specifies the harassment would impel the average worker      Continue Reading...
Kansas Wage Payment Law Amended--No Foolin'
By: Boyd Byers

On April 1, Governor Brownback signed into law a bill that gives employers more latitude to make payroll deductions to recoup overpayments, loans, and property provided to employees. Kansas employers have long pushed for this change. The bill, Senate Substitute for HB 2022, becomes effective on July 1. Read on to understand these revisions and what you can do to maximize their benefit to your organization.

Under current Kansas law, an employer may withhold wages in only limited circumstances, such as: (1) when specifically required by law (such withholdings for payroll taxes or garnishments); (2) for healthcare; (3) deposits into a retirement plan; and (4) when the employer has a signed authorization from the employee for a lawful purpose "accruing to the employee's benefit." Old Kansas Department of Labor regulations take a narrow view on what type of deductions accrue to the employee's benefit.

The revisions to the Kansas Wage Payment Act expand the circumstances under which employers may make payroll withholdings or deductions. Upon a signed written agreement between the employer and employee, an employer may deduct or withhold an employee's wages for the following purposes:
  1. as repayment of a loan or advance the employer made to the employee during the course of and within the scope of employment;
  2. to recover a payroll overpayment; and
  3. to compensate the employer for the replacement cost or unpaid balance of the cost of the employer's merchandise or uniforms purchased by the employee.

In addition, upon providing      Continue Reading...

Can You Make Your Employees Give More Notice Than the Pope?
By: Boyd Byers
Pope Benedict XVI recently did something no pontiff has done for 600 hundred years: He resigned. And when he did, he provided the Catholic Church with only two weeks’ notice of his departure.
Employees often leave their employer with little or no notice. This can leave the organization in a lurch, particularly if the employee holds a key position, has a unique skill set, or has institutional knowledge others lack.  
Employers sometimes ask whether they can require their employees to give advance notice before they quit. But perhaps the more-important question is: Do you really want to? 
Absent an agreement to the contrary, employment in Kansas is at will. This means that either the employer or the employee can end the employment relationship at any time, for any or no reason, with or without notice. Employers are typically happy about this arrangement. 
So think twice and get legal counsel before imposing a rule requiring employees to give two weeks or other advance notice of resignation, as this may trigger a reciprocal obligation to pay employees for the same notice period when you let them go, or otherwise alter the at-will nature of the relationship. If you do decide to enter into a contract with an executive or other key employee that requires advance notice of resignation, consider whether and how you will enforce the provision if the employee welches on the deal. Remember that the Kansas Wage Payment Act (KWPA) prohibits withholding an employee’s earned wages as a set off or credit toward other debts the employee      Continue Reading...
Lawmakers Propose Unemployment Changes
By: Boyd Byers

Kansas lawmakers continue to consider changes to the employment security ("unemployment") statutes. This week the House passed Substitute House Bill 2105 on a vote of 88-35. The bill would amend Kansas unemployment law in several ways:

  • Revises the definition of “part-time employment,” “good cause,” and “misconduct,” and includes further restrictions for alcohol and drug abuse on the job;
  • Authorizes the Secretary of Labor to hire special investigators relating to UI fraud, tax evasion, and identity theft;
  • Increases  the taxable wage base for contributions made by employers from $8,000 to $16,000 starting Jan. 1, 2015;
  • Reduces the contribution rate for certain employers when the UI (unemployment insurance) Trust Fund reaches an acceptable level;
  • Revises the surcharge rate for the 20 negative balance employer groups and requires the Secretary of Labor to notify employers by November 30 of their UI contribution rate for the coming year; and
  • Abolishes the State Employment Security Advisory Council.

After passing the House, the bill was referred to the Senate Committee on Commerce. 

Gaga over the FLSA Monster
By: Boyd Byers

Pop diva Lady Gaga affectionately refers to her fans as “little monsters.” But she recently became acquainted with a big monster—the Fair Labor Standards Act. 

Jennifer O’Neill, who worked as Gaga’s personal assistant, sued Gaga’s company, Mermaid Touring, Inc., for FLSA violations. She says she was continuously on the clock to attend to Gaga’s needs, at her beck and call, both at home and while traveling on tour. According to O’Neill’s math, during 56 weeks of employment she worked over 7,000 hours of uncompensated overtime, for which she is owed nearly $400,000 in back pay, an equal amount in liquidated damages, and the obligatory attorneys’ fees and costs.
Born this Way?
Gaga testified for six hours in the case. Excerpts from her deposition transcript were recently reported in the New York Post. Here are some highlights.
Gaga said that O’Neill “knew exactly what she was getting into, and she knew there was no overtime.” When grilled by O’Neill’s lawyer, Gaga admitted that her decision to not pay overtime wasn’t based on the law, but was “actually based on a bubbly, good heart.”
She also testified that O’Neill was “majorly unqualified” for the job, which was “essentially a favor.” And it was filled with perks: “she slept in Egyptian cotton sheets every night, in five-star hotels, on private planes, eating caviar, partying . . . all night, wearing my clothes . . .      Continue Reading...
Employers Must Give Job-protected Leave to Lawmakers under Proposed Law
By: Boyd Byers

A bill proposed last week would require Kansas employers to provide job-protected leave to employees while they serve in the state legislature.  House Bill 119 provides that an employee elected or appointed to the Kansas legislature must be reinstated to his or her former position--at the same or higher pay rate, without loss of seniority--after being ousted by the voters, retiring from the legislature, or returning from a legislative session. And that's not all. After being reinstated, the lawmaker/employee cannot be discharged without cause for one year.

The bill has not been well-received. An editorial in the Hutchinson News called it "one of the most absurd pieces of legislation to ever see the light of day." It added, "To think that [lawmakers] should enjoy a protection that's not afforded to Kansans at large borders on the narcissistic, and is an insult to working families across the state." A Kansas City Star editorial says the bill's proponent "appears to have caught a touch of 'capitolitis.'" 

By: Boyd Byers

What day of the year is FMLA leave accessed the most? The day after the Super Bowl. Seriously. 

This fact underscores how the FMLA is subject to employee misuse and creates burdens for employers. “It’s a ripple effect,” says Marc Freedman of the U.S. Chamber of Commerce. “Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace.”
Twenty years ago today, President Clinton signed the FMLA into law. Since then, employers have struggled to administer employee leave and comply with the law. FMLA consistently tops the list of HR’s legal questions, according to the Society for Human Resource Management.  
Today the U.S. Department of Labor is holding a party to celebrate the FMLA’s twentieth anniversary. Former President Clinton and other dignitaries will speak. And in honor of the occasion, DOL gave you a present—new regulations!   
The new rules implement and interpret two statutory amendments that expanded FMLA protections. The first expansion provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members, and it also enables more military families to take leave for activities that arise when a service member is deployed.  The second expansion modifies existing rules so that airline personnel and flight crews are better able to make use of the FMLA’s protections.   

For a summary guide to the new regulations in Q & A format, click here. If you have a couple of hours to kill and are a glutton for punishment, you can link to the new rule itself here

     Continue Reading...
Kansas Legislative Update
By: Boyd Byers

The 2013 Kansas legislative session is now in full swing. Lawmakers have introduced several employment-related bills.

House Bill 2022 -- Expands the number and types of deductions that employers may withhold from an employee's wages, contingent on a written agreement between the parties. Also expands an employer's ability to withhold wages when an employee leaves. However, such withholding cannot reduce the employee's wages below the federal or state minimum wage law.

Senate Bill 53 / House Bill 2092 -- Specifies what social media information an employer can and cannot ask an applicant or employee to divulge.

Senate Bill 48 -- Requires that, starting January 1, 2014, all governmental units and contractors involved in a public contract of $50,000 must use e-verify for verification of employment status of all employees whose employment begin on or after January 1, 2014. Grants the Secretary of Labor authority to establish rules and regulations and impose restrictions on violations of the act.

House Bill 2105 -- Incorporates numerous amendments to the employment security law, such as revising the circumstances when an individual can be disqualified for benefits; redefining "gross misconduct" involving the use of alcohol or controlled substances; and imposing penalties for unlawfully receiving benefits.

Kansas Employment Law Blog will keep you up to date on the progress of these bills and other significant legislative developments.

Do You Know? Forfeiting Unused Vacation Time
By: Boyd Byers

You may be familiar with Benihana, the Japanese-cuisine restaurants that feature knife-wielding, joke-cracking chefs who prepare your food. In 2011 a group of former managers filed a class action, alleging that Benihana’s vacation policy violated California law by requiring employees to forfeit accrued, unused vacation time when their employment ends. This month Benihana agreed to pay $600,000 to settle the case.  

Do you know that the Kansas Wage Payment Act similarly prohibits employers from imposing a forfeiture of earned but unused vacation time? But that does not necessarily mean employers are always obligated to let employees cash out their unused vacation time upon termination. Confused? You should be, as Kansas law on this issue is tricky. Read on and I’ll explain.
The KWPA provides that employers must pay all wages due, which includes vacation time and paid time off (PTO), provided the employee has met all the conditions required to be eligible for and earn that compensation. Kansas Department of Labor regulations prohibit employers from imposing a “condition subsequent” to an employee’s entitlement to compensation that results in a forfeiture or loss of earned wages. This is in contrast to a condition precedent, which is something that must happen before the agreement becomes effective.

Still confused? The key point to understand here      Continue Reading...

Kansas Lawmakers Propose New Employment Laws
By: Boyd Byers

Kansas lawmakers introduced several employment-law-related bills this week, the second of the 2012 legislative session.  Here’s a synopsis: 

Senate Bill 295 – Creates the Fair Consideration of the Unemployed Act, which prohibits discrimination based on employment status.  Specifically, it provides, “No employer . . . shall inquire into or shall use a job applicant’s unemployment status or gap in employment history as a basis to hire or to act with respect to recruitment, hiring, . . . or terms, privileges, or conditions of employment.”  (Referred to the Senate Committee on Commerce.)
Senate Bill 284 – Requires all governmental units to use E-Verify for all employees beginning work after January 1, 2013.  Also requires any bidder, contractor, or employer involved in a public works contract of at least $50,000 to use E-Verify and makes them responsible for E-Verify compliance by their sub-contractors.  (Referred to the Senate Committee on Federal and State Affairs.)
Senate Bill 285 – Increases the penalty for misclassification of employees as independent contractors from a Class C non-person misdemeanor to a felony. (Referred to the Senate Committee on Judiciary.)
Senate Bill 286 – Specifies circumstances under which an applicant or employee’s consumer report can be used. Allows a person to file a complaint with the Secretary of Labor if the person’s credit information has been obtained or used contrary to the provisions of the act.  (Referred to the Senate Committee on Financial Institutions and Insurance.)
House Bill 2463 – Requires any contractor involved in a public works contract      Continue Reading...
Biggest Job Interview Blunders
By: Boyd Byers

If you’ve ever interviewed job applicants, you’ve probably encountered some of the usual suspects. The improperly dressed candidate with bad hygiene. The guy who got in the door by “embellishing” his resume but obviously is unqualified. The gal who shows up 45 minutes late stressed out and disheveled. And, at the other end of the spectrum, the overenthusiastic applicant who interjects your first name into every single sentence during the interview. 

But these pale in comparison to the “most memorable interview blunders” published by CareerBuilder last week. Each year the company surveys thousands of hiring managers to identify the most-common and most-outlandish mistakes made by job candidates. Here are my favorites from this year’s study.
  • Candidate denied having a cell phone with him . . . even though it was ringing in his briefcase.
  • Candidate asked to be paid “under the table.”
  • Candidate called his wife during the interview to ask what they were having for dinner.
  • Candidate said he would do whatever it takes to get the job done, legal or not.
  • Candidate said he didn’t want the job if he had to work a lot.
  • And, at the top of my list, the candidate who called in sick to her current employer, faking an illness, during the interview.
 You can read the full list here.
"I Was Kidnapped" and Other Tall Tales
By: Boyd Byers

Last week Sheila Eubank of San Antonio, Texas was found tied up in the back seat of her car. She told police that as she approached an ATM machine she was kidnapped at knifepoint and forced to chauffeur her assailant around the city to do drug deals. 

But security cameras told a different story. Surveillance video showed that she was alone while withdrawing cash from the ATM and that she was purchasing lottery tickets from a convenience store while she was supposedly abducted. When confronted with this evidence, Eubank confessed that she made up the story because she wanted a day off from work and wanted attention.

Human resources veterans know there’s no shortage of inventive excuses employees will come up with to skip work. This story reminds me of another ill-fated attempt to cover up work absences, which I wrote about several years ago. That article, originally published in the Kansas Employment Law Letter, is reprinted below.
Lies and the Liars Who Tell Them
What do Elvis, Jesus, and Jesse James have in common? All of them, according to various conspiracy theorists and crackpots, faked their deaths.

Many less-well-known people have in fact played dead to collect on insurance claims, avoid debts, or escape the law. But would anyone stoop so low as to lie about the death of her child just to get out of work for a few days? If you've been in HR for a      Continue Reading...
A Million Dollars a Day Helps Keep Discrimination Away
By: Boyd Byers
There are 365 days in a year. In fiscal year 2012 the EEOC collected $365 million for private-sector discrimination claimants. Coincidence? (Cue eerie music.)
In its 2012 Performance and Accountability Report, released last week, the EEOC touts not only its record-high $365.4 million recovery, but also its 10 percent reduction in charge backload for two years running. In short, the agency is processing claims faster and extracting more settlement money from employers.
Other EEOC statistics you might want to know:
  • The total number of charges filed with the EEOC has been in the 100,000 range for three years in a row.
  • The average processing time to resolve charges dropped by 17 days, from 305 days to 288 days.
  • Twenty percent of the cases on the docket involve allegations of systemic discrimination, the largest proportion of such cases since the EEOC has tracked this statistic. This met the agency’s newly established baseline of having at least 20 percent of the active case docket consist of “systemic cases,” which are defined as pattern-or-practice, policy, or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area. 
The EEOC Report is available at http://www.eeoc.gov/eeoc/plan/upload/2012par.pdf.
A “General” Reminder about E-mail
By: Boyd Byers

“Don’t put anything in writing that you wouldn’t want to see published on the front page of the newspaper,” the old saying goes. Apparently our top military leaders didn’t get the memo. 

Unless you’ve been hiding in a cave in Afghanistan, you probably know the story. Retired General David Petraeus quit as CIA director last week when an investigation turned up e-mails exposing his affair with his biographer, Paula Broadwell. Now Marine General John Allen, the top American military commander in Afghanistan, is under scrutiny for a voluminous e-mail exchange with Jill Kelley, a Florida socialite and “volunteer social liaison” to an Air Force base in Tampa. (When I say “voluminous,” I mean 20,000 to 30,000 pages.) The e-mails “go beyond flirtatious and can probably be described safely as suggestive,” according to an anonymous Defense Department official.
The discovery of these e-mails was triggered by a prior set of e-mails. Last summer Kelley received several e-mails from an anonymous sender that she perceived as harassing or threatening. So she went to a friend at the FBI and asked him to look into it. While the facts remain murky, the FBI’s investigation apparently revealed that Broadwell had sent anonymous e-mails to Allen, warning him about Kelley, and that Allen had forwarded these to Kelley. And in the course of investigating Broadwell’s and Kelley’s e-mail accounts, the FBI stumbled upon the Petraeus-Broadwell and Allen-Kelley e-mail exchanges. What a tangled Web!
Why, you ask, am I re-hashing this      Continue Reading...
DOL Creates 100-Year Anniversary Video
By: Boyd Byers

In honor of America's centennial, France gave us a gift: the Statue of Liberty. In recognition of its own centennial, the United States Department of Labor has given all of you a gift: a YouTube video chronicling its history. The six-minute-long video describes DOL's creation, introduces the labor secretaries, summarizes its legislative history, and promotes the things it does for workers. But be forewarned: the video is a slide slow, not a live-action film, and DOL tells the story to serve its own interests.  Watch the Video

Gay Rights Ordinances Fail
By: Boyd Byers

Before the election, I posted that voters in Hutchinson and Salina would be giving the thumbs-up or thumbs-down to city ordinances to prohibit employment discrimination based on sexual orientation. In case you missed it, the results are in: both measures were rejected. Lawrence thus remains the only city in Kansas with a civil-rights ordinance that covers sexual orientation. Neither the United States nor Kansas has gay anti-discrimination laws that apply to private employers.   

Do You Know? Job Protection for Employees Who Experience Domestic Violence
By: Boyd Byers

On October 12, the EEOC issued guidance titled “Questions and Answers: The Application of Title VII and the Americans with Disabilities Act to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.” The guidance recognizes that federal EEO laws do not prohibit discrimination on these bases, per se, but explains how these laws may apply to such situations.  Examples include:

  • A manager fires a female employee after learning she was subjected to domestic violence because he fears the "potential drama battered women bring to the workplace.”
  • An employer refuses to allow an employee extra time off work for treatment of anxiety or depression resulting from domestic violence.       
But do you know that Kansas law specifically allows employees to take time off work to deal with the effects of domestic violence or sexual assault?  Kansas employers are required to allow employees time off from work:
  • To obtain restraining orders or other injunctive relief in domestic violence or sexual assault situations;
  • To seek medical attention for injuries caused by domestic violence or sexual assault; or
  • To obtain services from a domestic violence or sexual assault center shelter.

An employee should give the employer reasonable advance notice of the intention      Continue Reading...

A Tale of Two Kansas Cities: Voters Will Decide Whether to Ban Employment Discrimination Based on Sexual Orientation
By: Boyd Byers

On election day, voters in Hutchinson and Salina will decide whether to prohibit employment discrimination based on sexual orientation. Neither federal law nor Kansas law provides such protection. However, 21 states and 400 cities have enacted similar laws. Lawrence passed an ordinance banning discrimination based on sexual orientation in 1995. In 2007, Governor Sebelius issued an executive order that protects Kansas state employees from workplace discrimination based on sexual orientation and gender identity.    

The Salina City Commission passed an ordinance that prohibits discrimination based on sexual orientation in employment, housing, and public accommodation in May. After that decision, a petition was presented to put the issue to a public vote.
In Hutchinson, the City Council added sexual orientation and gender identity as protected classes under the city’s civil rights code in June. But in September, faced with a petition challenging the ordinance, the Council voted to repeal it and instead let the public decide the question in the November election.
The Missing Link: Stupid Cat Videos and Workplace Productivity
By: Boyd Byers

What do cats and Justin Bieber have in common?  Probably a lot of things, but the answer I’m looking for here is “most-viewed videos on YouTube.” But you certainly don’t want your employees wasting time and company resources watching stupid cat videos at work. Or do you?  

According to a new study from Japan (of course, the birthplace of Hello Kitty), spending a little time at work looking at cute animal videos can actually improve productivity. Researchers had college students perform tasks requiring concentration, like finding a number in a matrix or playing the game Operation. And—you guessed it—those who were shown pictures of adorable baby animals before starting the task performed substantially better than those who were given pictures of other things, like adult animals or good food. The working hypothesis here is that looking at cute things triggers impulses that not only make humans happier and friendlier, but also improves focus and carefulness. Kind of like the way people act around babies.


 Data from the Graduate School of Integrated Arts and Sciences, Hiroshima University   
So if you want to invest 17 seconds to sharpen your focus and boost your productivity today, here’s a link to the original Surprised Kitty video (click here). 65 million viewers can’t be wrong! 
Legal Disclaimer: Consult your organization’s electronic communications policy (you have one, right?) or human resources representative first. Follow all rules and      Continue Reading...
On the Docket
By: Boyd Byers

The U.S. Supreme Court is scheduled to decide several employment-related cases in the 2012-2013 term, which began earlier this month.  I can't promise you’ll find this as riveting as the World Series, college football, or even watching paint dry, but here’s a quick overview of what’s on the Court’s docket. 

  • The Court will decide whether the definition of “supervisor,” for purposes of Title VII harassment, includes an employee who oversees and directs other workers’ daily tasks, but has no authority over their formal employment status.  Now, some courts say that employers can be liable only for the actions of harassers who have the power to hire, fire, promote, demote, or transfer; while other courts say that liability in harassment cases extends to those with the authority to direct and oversee the victim’s daily work.  Vance v. Ball State University. 
  • The Court will also rule whether a collective action under the FLSA is rendered moot if the defense makes an offer to let the plaintiff take a judgment in the full amount of the plaintiff’s individual claims, or whether the plaintiff can continue to prosecute the case on behalf of potential future opt-in plaintiffs.  Genesis HealthCare Corp. v. Symczyk
  • In a third case, the Court will decide if an ERISA plan administrator is entitled to reimbursement for payments made to a plan participant, who was injured in an accident, after the participant sued and recovered damages from a third party.  US Airways, Inc.      Continue Reading...
Supreme Court Begins New Term
By: Boyd Byers

Yesterday the Supreme Court officially opened its 2012-2013 term. The justices denied review of 304 cases, including 48 employment-related decisions. One of these cases is particularly significant for Kansas employers. 

In that case, the Court let stand a ruling by the U.S. Court of Appeals for the Tenth Circuit in favor of a Kansas school district. The appeals court had held that the Lilly Ledbetter Fair Pay Act applies only to claims that employees did not receive equal pay for equal work, and that this does not encompass demotion claims, even if the demotion results in a pay cut. (The Ledbetter law, as you may recall, amended Title VII, the ADEA, and the ADA to provide that the time for filing a pay discrimination claim is triggered with each paycheck that reflects a past discriminatory compensation decision or practice.)  Accordingly, the Ledbetter Act did not excuse two school custodians’ failure to file a timely age discrimination claim within 300 days of learning of their demotions. The case is titled Almond v. Unified Sch. Dist. 501.
Do You Know? Right-to-Work vs. Employment-at-Will
By: Boyd Byers

My fifteen-year-old daughter is an avid reader. She also has an offbeat sense of humor (which she must get from her mother). So perhaps I should not have been surprised to find a book titled Zombies vs. Unicorns lying around the house. "It's a question as old as time itself: Which is better, the zombie or the unicorn?" the book jacket teases.

Such weighty conflicts and comparisons have existed throughout history, of course. Good vs. Evil. Cats vs. Dogs. Yankees vs. Red Sox. King Kong vs. Godzilla. VHS vs. Betamax. And, most recently, Alien vs. Predator. In this spirit, let's examine two separate and distinct legal concepts that are sometimes misunderstood or confused with one another: Right-to-Work vs. Employment-at-Will.

Right-to-work has nothing to do with employers' ability to hire or fire. Nor does it refer to employees' right to unionize. Rather, a right-to-work law prohibits unions and employers from entering into contracts that require workers to join the union or pay union dues as a condition of employment.  

Kansas is one of 23 states with a right-to-work law. Kansas adopted a right-to-work amendment to its constitution in 1958. It provides, "No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall [any employer] enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization." (Kan. Const. Article 15, Section 12). 

However, even in states without right-to-work laws, union membership cannot lawfully be required. The U.S. Supreme Court ruled in 1985 that union members have the right to resign their union membership at any      Continue Reading...

Do You Know? Wage and Benefit Notification
By: Boyd Byers

Regular readers of this blog may have noticed that there has not been a lot of Kansas-specific content lately. No, we haven't forgotten that this is the Kansas Employment Law Blog. But when the legislature is not in session, and the Kansas Supreme Court and Kansas Court of Appeals are not cranking out decisions in employment-related cases, there simply are not a lot of state-specific new developments to talk about. And most employment law and employee benefits issues are, by their nature, federal in scope. So we've been feeding you a steady diet of federal law developments, practical advice based on general employment law principles, and my musings on pop culture, statistics, and wacky cases (all with an employment law nexus, however strained). 

To provide more Kansas content, we are starting a new, semi-regular feature called Do You Know? These articles will discuss various contours of Kansas employment law that are often overlooked or misunderstood.  We'll start with the Kansas Wage Payment Act's notification requirements. 

Do you know that upon an employee's request, a Kansas employer must furnish the following information in writing:

  • Rate of pay and date and place of payment;
  • Any changes in rate of pay or date and place of payment prior to the date of such changes;
  • Employment practices and policies regarding vacation pay, sick pay, and any other benefits to which the employee is entitled and that have a direct bearing upon wages payable; and
  • An itemized statement of deductions made from the employee's wages for each pay period deductions are made?

In      Continue Reading...

Half Past the Point of No Return
By: Boyd Byers

I’m a sucker for great song lyrics. A clever or poignant turn of phrase set to music can stick with you for a lifetime. Here are some of my all-time favorites:

  •  How many roads must a man walk down / Before you call him a man? (Bob Dylan, “Blowin’ In the Wind”);
  • There are places I'll remember / All my life, though some have changed.  (John Lennon, “In My Life”);
  • Then I fumbled through my closet for my clothes / And found my cleanest dirty shirt. (Kris Kristofferson, “Sunday Morning Coming Down”);
  • People talking without speaking / People hearing without listening. (Paul Simon, “The Sound of Silence”).
And, of course, the greatest lyrics ever written: 
  • Freedom's just another word for nothin’ left to lose / Nothin’ ain’t worth nothin’ but it's free.  (Kris Kristofferson, “Me and Bobby McGee”).
I recently heard a newer song on the radio with a refrain I couldn’t get out of my head. It went, “It’s only half past the point of no return.” (The song is “Glitter in the Air” by Pink.)
I kept thinking about that line all day. It brought to mind the words of writer Pearl Buck: “Every great mistake has a halfway moment, a split second when it can be recalled and perhaps remedied.” And I reflected that it is the decisions made at these crucial moments—at half past the point of no return—that define us as people and organizations.   
Fluoride, Freakonomics, and Employment Discrimination
By: Boyd Byers

Wichita is one of the few large cities in the U.S. that does not fluoridate its water. The battle over fluoridating the city’s water supply has waged, on and off, for over half a century. This week the City Council declined to decide the issue, leaving it up to public vote. Proponents argue that water fluoridation is a proven safe and effective way to prevent tooth decay that would save Wichitans millions of dollars a year in costs for preventable dental reconstruction. But can fluoridation also improve wage-earning potential for women?

Women who grow up in communities with fluoridated water earn about four percent more than women who do not (after accounting for all other variables). This is according to a study featured in the book SuperFreakonomics (follow-up to Freakonomics, the best-seller that applies economic analysis to everyday issues). The effect is mostly concentrated among women from families of low socioeconomic status (who are less likely to prevent or fix dental problems that stem from lack of fluoride). Employer and consumer discrimination are the likely factors that cause oral health to impact earnings, according to the research. This could be based not only on less attractive physical appearance, especially for positions that involve customer interaction, but also on a perception that bad teeth equate to poor health or poor personal hygiene. Access to fluoridated water during childhood did not have a negative effect on men’s incomes, however. (See The Economic Value of Teeth.) 

The existence of a labor market penalty for bad teeth is not surprising. Economists have long-recognized that physical appearance affects wages—the so-called “beauty      Continue Reading...

Cost to Comply with Proposed Affirmative Action Regulations May Be Billions (Yes, That’s Billions with a B)
By: Boyd Byers

Federal government contractors’ costs to comply with proposed affirmative action regulations for individuals with disabilities could total $5.9 billion dollars in the first year, with recurring annual costs of $2.6 billion, according to a new study by Applied Economic Strategies.  These projected first-year costs are 200 times higher than the government’s estimate of $29.5 million.  (We all know the federal government has never underestimated the cost of anything before!) 

The AES report criticizes OFCCP’s estimates for missing and underestimating numerous costs to contractors.  For example, OFCCP failed to account for time that contractors would have to spend to read and understand the new regulations.  Assuming four hours of work per contractor (and, boy, will those four hours be fun), AES estimated that cost alone at $69.7 million—more than double the OFCCP's entire estimate.  The AES projections also accounted for contractors’ costs to modify existing processes, forms, and information systems to comply with proposed data collection rules.  The full report, available here, monetizes the costs of many other aspects of the proposed regulations, including the self-identification, written rejection letter, annual job qualification review, annual disability survey, and various outreach requirements.
Federal Contractors Still Waiting for OFCCP’s Proposed Rules for Employing Individuals with Disabilities
By: Boyd Byers

Back in December 2011, the Office of Federal Contract Compliance Programs (OFCCP) proposed rules that would impose new requirements on all federal contractors regarding employment opportunities for individuals with disabilities. Its most dramatic proposal would establish a seven percent nationwide utilization goal for employees with disabilities. In other words, OFCCP would expect seven percent of all employees within any job group—regardless of industry, location, or availability—to be individuals with a disability. OFCCP also solicited feedback on additional proposals, including use of utilization “ranges” in lieu of a fixed 7 percent target and “sub-goals,” which would establish a two percent utilization target for individuals with particularly severe or targeted disabilities. Under the current rules, federal contractors are not required to meet any particular numerical utilization goal. 

The majority of the remaining proposed changes relate to additional data collection and record-keeping requirements, such as (1) requirements to invite applicants and (on an annual basis) employees to self-identify as an individual with a disability, and (2) requirements to maintain records related to the number of individuals with a disability applying for and hired into positions. Other proposals in the new rules would impose specific outreach obligations on contractors, such as a requirement that contractors engage in at least three specific types of outreach efforts to recruit individuals with disabilities.

The period for public comment on the OFCCP’s proposed rules closed in February, and final regulations, implementing the OFCCP’s proposals, perhaps with some modification, are widely expected to be published by the end of 2012. Additional information regarding the proposed rules is      Continue Reading...

A Tribute to Our National Pastime
By: Boyd Byers

The Major League Baseball All-Star Game will be played in Kansas City in less than two weeks. Inspired by the occasion, this edition of the Kansas Employment Law Bog Email Update features several baseball-themed articles.

Being A Big League HR Manager
By: Boyd Byers

As a faithful Kansas City Royals fan, I’ve closely followed general manager Dayton Moore’s efforts over the past several years to assemble a winning team with a limited budget. Watching “the process,” as some call it, I’ve come to realize that in many ways general managers are baseball’s version of human-resources managers.

Professional baseball is not just a game; it’s big business. And the general manager (GM) is the central figure in putting together coaches and players to create a successful team.
The GM is hired by and reports to the owners. Working together with ownership, the GM is responsible for all personnel decisions, such as which coaches and players to hire and fire. Gleaning information from scouts and coaches, the GM decides which players to draft, trade for, pursue in free agency, or re-sign. The GM then must negotiate salaries and contract terms. Once players are signed, the GM is ultimately in charge of overseeing their development. And, on the back side, the GM decides when to cut or trade under-performing or overpriced players. All of this, of course, must be done within salary constraints (unless you work for the Yankees). That sounds a lot like what most high-level HR managers do, doesn’t it? 
Netflix is a company that embraces the concept of managing its personnel like big-league ballplayers. Netflix tells employees, “We’re a team, not a family.” But not just any team. “We’re like a pro sports team, not a kid’s recreational team.” Accordingly,      Continue Reading...
A Yogi's Guide to HR
By: Boyd Byers

This post originally appeared in March 2011.

Major League Baseball opens the season this week, and I have baseball on my mind. Which makes me think about the great baseball philosopher, Yogi Berra. Here are some of the most-memorable "Yogi-isms," and what human resources professionals and personnel managers can take away from these pearls of wisdom.

“You’ve got to be careful if you don’t know where you’re going 'cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).
We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there.
“It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices and take advantage of what others have already figured out. Join a professional organization, go to seminars, and talk to contemporaries at other companies. If you need help deciding how to deal with a dilemma or improve your policies and procedures, confer with an experienced employment lawyer or HR consultant—chances are they’ve seen it and done it all before.
“You can observe a lot      Continue Reading...
Avoid the "Joyless March to the Inevitable"
By: Boyd Byers
Ken Burns’s documentary The Tenth Inning artfully chronicles the history of Major League Baseball from 1994 (picking up where his original Baseball left off) to 2010. One segment of the film covers baseball’s “steroid era,” including fans’ mixture of ambivalence and cynicism as a chemically enhanced Barry Bonds chased and surpassed Hank Aaron’s all-time home run record in 2006. “The whole thing was a joyless march to the inevitable,” as Bob Costas put it.
Costas’s colorful turn of phrase – “joyless march to the inevitable” – stuck in my head. The expression reminds me of a phenomenon I see all too often: employers needlessly putting off the termination of an employee who needs to go. I understand why employers do this—avoiding unpleasantness, procrastination, unfounded hope the employee will “turn it around,” slack managers who neglect to pave the way for a clean discharge, etc. Yet I still ask myself, why do employers do this?   
Let’s move on from baseball to another Ken Burns documentary topic, the Civil War. Union General George McClellan was much-maligned for his failure to take action. His critics, including President Lincoln, believed he was too cautious and made excuses for not engaging the enemy when the time was right. McClellan had the chance to capture Confederate General Robert E. Lee’s army and end the war in 1862, but he delayed and let Lee escape, resulting in three more years of bloody conflict. Lincoln famously said that      Continue Reading...
The Power of Apology: An Umpire's Story
By: Boyd Byers

Jim Joyce became a Major League Baseball umpire in 1987. During his career he had been selected to umpire a Division Series six times, a League Championship Series three times, the World Series twice, and the All-Star Game twice. 

In short, he was very good. But on June 2, 2010, he wasn’t.   
That night Joyce was the first-base umpire in a game between the Detroit Tigers and Cleveland Indians. Tigers pitcher Armando Galarraga had a perfect game (no base runners allowed) going with two outs in the ninth inning. The batter hit a weak grounder and was thrown out at first, completing the perfect game.
Except that Joyce called the batter safe. Replays showed he was clearly out. The mistake prevented Galarraga from becoming only the 21st pitcher in Major League history, and the first Detroit player in the team’s 110-year history, to throw a perfect game.
The initial reaction to Joyce’s blown call was expectedly vitriolic. But what followed was decidedly unexpected and wonderful.   
Rather than run from the situation or defiantly defend his error, Joyce met with Galarraga and the media after the game. With tears in his eyes, he earnestly admitted his mistake and apologized. “I just cost the kid a perfect game,” he said. Galarraga was forgiving and told reporters, “Nobody’s perfect.”   
In the days that followed, Joyce was praised throughout the sports world for showing accountability and regret. Other players came forward to defend Joyce, and two weeks later he was voted best umpire in Major League Baseball in an ESPN player poll. Joyce and Galarraga later wrote a book      Continue Reading...
Honus Wagner and Employee-Privacy Rights
By: Boyd Byers

The T206 Honus Wagner is considered the Holy Grail of baseball cards. The card is so rare and coveted by collectors that one in mint condition fetched $2.8 million in 2007.

The American Tobacco Company (ATC) issued the cards in cigarette packs in 1909. But Wagner, one of the best players at the time, had refused to give ATC permission to use his image on the cards. (Most likely it was because he was anti-tobacco, but it might have been because he wanted more money--the exact reason is lost to history.) So Wagner threatened to sue and forced ATC to recall the cards. ATC thus ended production of the Wagner card, but only after 60 to 100 of the cards got out to the public. About 50 of them are known to still exist. That scarcity is the reason for the mind-boggling value of the card.
What does a 103-year-old baseball card have to do with employment law? Kansas has long recognized a common-law action for invasion of privacy. The right of privacy actually consists of several distinct rights, one of which is protection from “appropriation.” The Honus Wagner card is a perfect example of appropriation: one person or entity uses another person’s name or image, without permission, to advertise its business or product. Appropriation claims can arise from the employment relationship if the employer uses pictures of an employee in advertising or promotional materials without consent.  
The Kansas Supreme Court first recognized a cause of action      Continue Reading...
Summer Sizzles with HR Box Lunch Workshop Series
By: Boyd Byers

Employers in the Wichita area may want to check out the lunch time workshops for human resources professionals being presented by the law firm Foulston Siefkin LLP. Each session will address HR issues you may find important and relevant to your business. Topics to be covered include:

  • The Nuts and Bolts of Kansas Unemployment Laws: How They Work and How Best to Position Your Company to Contest an Award — July 17, 2012, Speaker: Forrest Rhodes - As most HR professionals know, the only constant is change. Even as the economy appears to be rebounding, circumstances will always arise that bring the unemployment benefits process into play. This session will explain how the unemployment process works, from funding your employer’s account through the claims and appeals process. A number of practical tips to help you position yourself as much as possible to (hopefully) avoid benefit awards will also be discussed.
  • Health Care Reform Update — August 7, 2012, Speaker: Jason Lacey - This session will provide an overview of current topics in health care reform, including analysis of the impact, or potential impact, of the Supreme Court’s decision, and guidance on implementation of mandates such as the summary of benefits and coverage (SBC), W-2 reporting, and the cap on health FSA accounts.
Employee Sues, Alleges Boss Fired Her After Donating Kidney
By: Boyd Byers

Have you ever heard someone say they’d give their left arm to get that big promotion? Well, what about a kidney?

A New York woman claims she was set up by her boss, who got her to donate a kidney to save the boss's life, and then turned around and fired her. “I decided to become a kidney donor to my boss, and she took my heart,” she said. Read the full story here.


FMLA Master Class to be Held on June 7 in Wichita
By: Boyd Byers

The FMLA has been part of the workplace for nearly 20 years . . . and it hasn't gotten any easier for employers to administer.  For those looking to gain a deeper knowledge of the FMLA, Foulston Siefkin LLP lawyers will be presenting an FMLA Master Class on June 7 in Wichita.  This full-day event will address everything FMLA -- from basic to complex issues.  Sessions will include recent FMLA developments, what constitutes a serious health condition and how to collect appropriate medical information, military family leave, curbing FMLA abuse, and coordinating the FMLA with the ADA and Workers' Compensation laws.  For more information or to sign up, click here.  Be sure to enter the special "Friends of Foulston Siefkin" code to get a 20% discount on your registration (Offer Code: R500).

Bill to Amend Wage Payment Act Dies
By: Boyd Byers

You may remember Schoolhouse Rock, the series of educational cartoon shorts that ran on ABC on Saturday mornings in the 1970s.  One of the most-popular episodes, titled "I'm Just a Bill," teaches kids about the legislative process through the adventures of Bill, a bill hoping to become a law.

At one point Bill and a young boy have the following exchange:

Bill:  "I hope they decide to report on me favorably; otherwise I may die."

Boy:  "Die?"

Bill:  "Yeah, die in committee."

Such was the fate of a bill to amend the Kansas Wage Payment Act.

Kansas lawmakers closed a marathon 99-day session yesterday afternoon.  When the gavel slammed for the final time, one of the bills left in the dust was House Bill 2627.  This bill would have allowed employers to withhold money from an employee's final paycheck, upon providing written notice and an explanation, for the following reasons:  (1) to recover a computer, phone, and other property provided to the employee; (2) to recoup a loan or advance made to the employee; (3) to recover a payroll overpayment; and (4) to compensate the employer for the cost or unpaid balance of the employer's uniforms, equipment, tools, or other property purchased by the employee. 

The House of Representatives passed the bill 93-31 on February 23.  On March 1 it was referred to the Senate Committee on Commerce.  The Committee made some changes, and on March 13 recommended that it be passed by the entire Senate.  But that was the end of the line for the bill, at least for the 2012 legislative      Continue Reading...

Kansas Legislature Passes PEO ACT
By: Boyd Byers

The Kansas Professional Employer Organization (PEO) Act was presented to Governor Brownback for his signature on May 18, 2012. The Act requires a person on business entering into a co-employment relationship with an employer/client to be designated as a PEO and register with the insurance commissioner. PEOs already doing business in the state must register within 60 days after the Act becomes effective on July 1, 2012. The insurance department is required to keep a public list of registered PEOs and develop rules and regulations for enforcement of the Act. The Senate passed this bill 40-0 on May 8, and the House adopted the final version by a vote of 91-33 on May 10.

What Employers Need to Know about the Kansas "Conscience Act"
By: Boyd Byers

On May 14 Governor Brownback signed into law the Health Care Rights of Conscience Act.  So why report about a new health care law in an employment law blog?  Because the law gives new employment protection to persons who work at medical care facilities.

Particularly, the law says that no person (regardless of whether he or she works at a medical care facility) can be required to "perform, refer for, or participate in medical procedures or in the prescription or administration of any device or drug which result [sic] in the termination of a pregnancy or an effect which the person reasonably believes may result in the termination of a pregnancy."  The law then provides that it is unlawful for any "medical care facility" to "terminate the employment of, prevent or impair the practice or occupation of or impose any other sanction on any person because of such person's exercise of rights protected by this section."  The law becomes effective July 1, 2012.

Employer Fires Entire Workforce Due to Email Gaffe
By: Boyd Byers

You know that firing an employee by email is not best practices.  You also know you should carefully proofread your emails, including the distribution list--particularly the distribution list--before hitting send.  Here's a cautionary tale of what can happen when such errors are compounded.

Employees of the U.K. insurance company Aviva--all 1,300 of them--recently received an email from HR notifying them of their termination.  But, you guessed it, the email was really intended for only one person.  Somebody in HR hit "send to all" by mistake.

That's embarrassing.  But, even more embarrassing, the email said that the reason the employees were being terminated was because they failed to properly secure the company's confidential information.  In other words, the poor chap being fired for not keeping things confidential was fired via an email about a confidential personnel matter sent to every employee in the company.

So let's review.  Firing someone by email rather than in person.  Strike one.  Not  carefully reviewing the distribution list of a sensitive email.  Strike two.  Violating confidentiality rules while firing someone for failing to protect confidential information.  Strike three.

It took only 20 minutes for HR to recognize the error and send an apology.  The errant email was the result of a "clerical error," the company said.  No word on what happened to the employee who made the mistake.  But you can bet that person is nervous everytime he or she gets an email from HR.


Kansas Court Expands Scope of Retaliatory Discharge
By: Boyd Byers

It is unlawful to fire an employee in retaliation for making internal oral complaints involving rights protected by the Kansas Wage Payment Act, the Kansas Court of Appeals ruled on May 4.  Less than a year ago the Kansas Supreme Court held that is is unlawful to discharge an employee for exercising rights under the Wage Payment Act, such as by filing a claim for wages with the Kansas Department of Labor.  The new decision clarifies that this anti-retaliation rule is not limited to situations where the employee has filed a formal claim, but also covers oral complaints to company management. 

However, to be protected, the complaint, whether written or oral, must be "clear enough that the employer would understand that the employee is asserting rights protected by the statute."  The Wage Payment Act requires, among other things, that employers must pay employees all wages when due.  But in this case, the court said, the employee's complaints were "too equivocal" to put the employer on notice that he was making some claim under the Wage Payment Act.  So the court upheld the district court's ruling to dismiss the claim.

KDOL Seeks Employer Input on Work Comp Report
By: Boyd Byers

The Kansas Department of Labor wants employers to let the agency know which sections of the Workers Compensation Annual Statistical Report they find most helpful.  The Report contains basic information about the Workers Compensation Division, workplace injury data, and claims statistics.  An interesting trend is that while the number of workplace injuries has been steadily decreasing (down 40% since 1998), the average cost per claim has been rising rapidly (over 70% increase from 2004 to 2010).  Click here to see the KDOL 2011 Workers Compensation Annual Statistical Report (1.7 MB).

The survey takes only a few minutes to complete.  Responses are due by May 11, 2012.  Click here to take the survey.

The "Best" of Bad Bosses
By: Boyd Byers

Today is Administrative Professionals Day (formerly and sometimes still known as Secretaries Day).  In honor of this day, we refer you to "The Best of Bad Bosses" feature by HR Strange But True.  Highlights (or is it "lowlights"?) include:

  • The Company President who took the office staff to lunch for Administrative Professionals Day.  Well, not the entire staff--just the blonde women.  The receptionist and his own executive assistant, both of whom had dark hair, did not get invited.
  • The boss who told an employee, after she returned to work following breast cancer surgery:  "Well, I don't have to worry about you going anywhere else. No one else will hire you now that you've had cancer.  I can pretty much do what I want now."
  • The boss who hit an employee with an aluminum baseball bat over a dispute about the employee's performance.  And you thought your boss was tough!

Read the full stories, and more tales of bad bosses, here

A Rose by Any Other Name?
By: Boyd Byers

Having a simple, easy-to-pronounce name is more likely to win you friends and favor in the workplace, according to a new study published in the Journal of Experimental Social Psychology.  Researchers, conducting studies using a range of names from Anglo, Asian, and European backgrounds, found that people with easy-to-pronounce names are evaluated more positively and more likely to receive job promotions.  

"Research findings revealed that the effect is not due merely to the length of a name or how foreign-sounding or unusual it is, but rather how easy it is to pronounce," according to lead author, Simon Laham from the University of Melbourne in Australia.  Subtle biases that we are not aware of affect our decisions and choices, he says.  This could have important implications for the management of bias and discrimination in the workplace and society.  "It's important to appreciate the subtle biases that shape our choices and judgments about others. Such an appreciation may help us de-bias our thinking, leading to fairer, more objective treatment of others," Laham says. 

EEOC Says High School Diploma Requirement May Violate ADA
By: Boyd Byers

About a month from now high school seniors will be donning funny looking caps and gowns and parading across stages to receive their hard-earned diplomas.  But employers who require a high school diploma or GED as a condition of employment need to make sure this requirement is job-related and consistent with business necessity, and that it doesn't screen out individuals who cannot obtain a diploma because of a learning disability.         

The Equal Employment Opportunity Commission recently published new guidance on whether an employer's requirement that a job applicant have a high school diploma may violate the Americans with Disabilities Act.  The guidance is in response to an informal discussion letter issued by the EEOC last November that created significant commentary and conjecture. 

The guidance explains that requiring a high school diploma for a position is not illegal.  Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, according to the EEOC, if an applicant tells an employer she cannot meet this requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.

The guidance clarifies that the ADA only protects someone whose disability makes it impossible for him to get a diploma. It would not protect someone who simply decided not to get a high school diploma.  The employer can require      Continue Reading...

EEOC Issues Final ADEA Regs
By: Boyd Byers

On March 29 The U.S. Equal Employment Opportunity Commission (EEOC) issued the "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).  The final rule clarifies the EEOC's position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. 

The rule responds to two Supreme Court decisions in which the Court criticized one part of the EEOC's existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.  However, it disagreed with the part of the regulations that said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”  The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

In issuing the new rule, the EEOC tried to make its regulations consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.  For a more-detailed      Continue Reading...

Holy Act of Congress! Batgirl Demands Equal Pay
By: Boyd Byers

Here’s a unique footnote in employment law and superhero history.  In 1972 the U.S. Department of Labor developed a public service announcement to promote the Equal Pay Act featuring characters from the campy Batman TV show.  In the PSA Batman and Robin are tied up next to a ticking bomb in an abandoned warehouse.  Batgirl swoops in just in the nick of time.  But she leaves the Dynamic Duo hanging, questioning Batman why she’s paid less than Robin.  “Holy discontent!” exclaims Robin.  To which Batgirl retorts, “Same job, same employer, means equal pay for men and women.”  Is it curtains for the Caped Crusaders?  Will Batgirl get equal pay?  Click here to watch the video.  

Employee Blog: “Screw You Guys, I’m Going Home”
By: Boyd Byers

Perspective is good.  To make good decisions, it’s helpful to see things not only from your vantage point, but from the vantage point of others.  As the old saying goes, “Don't judge a man until you've walked a mile in his shoes.” 

With that thought in mind, you might want to occasionally take a peek at a blog imaginatively titled “Screw You Guys, I’m Going Home:  What You Need To Know Before You Scream ‘I Quit,’ Get Fired, Or Decide To Sue The Bastards.”  (Wow, that makes “Kansas Employment Law Blog” sound so mundane.) 
“Screw You Guys” is written by Donna Ballman, a Florida lawyer who represents employees in employment law cases.  Her blog provides information to inform employees of their workplace rights and responsibilities.  While tailored to the employee’s point of view, it also provides perspective to those of us on the other side who own a business, work in HR or management, or represent companies in employment disputes.  Here’s the link:  http://employeeatty.blogspot.com/?m=0
Let's Get Crazy
By: Boyd Byers

Of course your organization’s lawyer drives you crazy.  But does your organization also do things that make your lawyer crazy?

A sure-to-be popular breakout session at the upcoming employment law seminar sponsored by Foulston Siefkin LLP will answer that very question.  During this presentation, a panel of experienced employment lawyers will discuss some of the most-common missteps they see employers make that can lead to lawsuits and liability awards.  The session, titled Ten Things Employers Do That Drive Their Lawyers Crazy, promises to be lively, interactive, and entertaining.
This comprehensive, full-day employment law seminar—the seventeenth annual—will be held on Thursday, May 3 in Overland Park, and Tuesday, May 8 in Wichita.  Over 600 people attended this seminar last year.  For more information, or to register, click on http://www.foulston.com/Seminars/Employment/
Other sessions at the seminar include:
  • Employment Law Update;
  • The New Activist National Labor Relations Board—Believe Us, You Care;
  • Sexual Harassment in the Technology Era;
  • The Latest FMLA Cases;
  • An FLSA Audit Is Coming—Be Prepared before DOL Arrives;
  • Things HR Can Do Now to Take Advantage of the New Kansas Workers Comp Law;
  • Authorized or Not?  Current Trends Related to Work Authorization and Immigration Issues; and
  • Genetic Information Non-Discrimination      Continue Reading...
Kanas Senate Approves Bills
By: Boyd Byers
The Kansas Senate passed two bills last week that should be of interest to employers. 
Senate Bill 413 would create the Professional Employer Organization (PEO) Act.  The proposed law would regulate PEOs—defined as entities providing a broad range of human resource management services to other employers—and require them to register with the Secretary of Labor.  The bill passed the Senate on a vote of 38-2 and awaits further action by the House.
Senate Bill 438 would require all employers and labor organizations doing business in Kansas to submit specified information concerning each “newly hired employee” to the Secretary of the Department of Labor within 20 days. The Senate passed the bill on a vote of 40-0, and it awaits further action by the House.
Kansas House Approves Wage Payment Act Amendments
By: Boyd Byers

A few weeks ago we told you about Kansas House Bill 2627, which would amend the Kansas Wage Payment Act to expand the scope of authorized pay deductions.  Since then, the bill, with a few changes along the way, was passed by the House on a vote of 93-31.  It was introduced in the Senate, and last week was referred to the Senate Committee on Commerce.  We'll keep you informed as we continue to track the bill's progress. 

EEOC Issues Guidance to Employers about Disabled Veterans
By: Boyd Byers

Three million veterans have returned from military service over the past decade, and another one million are expected to return to civilian life during the next five years because of the anticipated drawdown of operations in the Middle East.  In recent years, the percentage of veterans who report having service-connected disabilities has risen.  About twenty-five percent of recent veterans report having a service-connected disability, as compared to about thirteen percent of all veterans, according to the EEOC.                                                 

The EEOC recently released new guidance explaining how the 2008 changes to the Americans with Disabilities Act affect employment of veterans with disabilities.  One of the guides is for employers; the other is for veterans.  “Veterans and the Americans with Disabilities Act: A Guide for Employers” explains how protections for veterans with disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities.  You can link to this guidance by clicking here
Employment Law Seminar
By: Boyd Byers

Foulston Siefkin LLP will host its seventeenth annual full-day employment law seminar on May 3 in Overland Park, and May 8 in Wichita. This entertaining and economical seminar provides the latest information you need to help your organization comply with the ever-changing employment and labor law landscape. 

The keynote speaker is David K. Fram, Director of ADA and EEO Services for the National Employment Law Institute. Mr. Fram previously served as Policy Attorney at the EEOC, where he helped formulate the federal guidelines implementing the ADA.
Over 600 people attended last year's seminar. Space is limited. For more information or to register, go to www.foulston.com/employmentseminar.
Proposal Would Clarify and Expand Kansas Wage Deductions
By: Boyd Byers

The Kansas Wage Payment Act controls many aspects of wage payment and deductions.  The KWPA's frequently unknown and often-misunderstood restrictions on wage deductions can cause problems for employers.  

Kansas House Bill 2627, introduced on February 3, would amend the KWPA to clarify the law and expand the scope of authorized pay deductions. The proposed changes to the KWPA would expressly allow Kansas employers to withhold, deduct, or divert any portion of an employee's wages for the following purposes:

(1)  To allow the employee to repay a loan or advance which the employer made to the employee during the course of and within the scope of employment.  The KWPA presently is silent about such deductions, although Kansas Department of Labor regulations do say that employers can make deductions for cash advances the employee requested in writing. 

(2)  To allow for recovery of payroll overpayment.  Here again, the KWPA today does not address such deductions, but KDOL regulations permit deductions to correct wage overpayment that resulted from the employer's error, although the deduction rate cannot exceed the overpayment rate unless the employee signs an authorization.

(3)  To compensate the employer for the value of the employer's merchandise or uniforms purchased by the employee. The regulations today say that even with the employee's consent, an employer cannot make deductions for uniforms that are not necessary to the job and that are customarily supplied by the employer.  

(4)  To compensate the employer for breakage, loss or return of merchandise, inventory shortage, or cash shortage caused by the employee where the employee was the sole party responsible for the case or items damaged or      Continue Reading...

Beware of Cupid in the Cubicles
By: Boyd Byers

Valentine's Day is just around the corner.  It's estimated that 190 million Valentine cards and 15 million e-Valentines were sent in the U.S. last year. But when a love-sick employee sends a written expression of love to an unrequitting co-worker, trouble often follows. Here are a few real-world examples from published court cases.    

  • An employee sued after her co-worker harassed her, including sending her a card that said, “On Valentine’s Day, remember – candy is dandy . . . but sex won’t rot your teeth!  So what do you say!”
  • A male employee made a harassment claim over his female supervisor’s conduct, which included an incident on February 12 where the supervisor held a bottle of pink lotion, saying she was “going to have a great time on Valentine’s Day,” and asking the employee if he would like to try some of the lotion.
  • An employee claimed harassment regarding her supervisor’s conduct, which included giving her a Valentine’s Day card with a $50 bill in it. 
  • An employee sued after her supervisor posted a Valentine’s Day message to her in the town newspaper, which stated in part, “Dear Sgt., Spring is right around the corner, just like me. Look outside, see a Robin by the tree. Love Azalea.” 
  • A female employee claimed a male co-worker harassed her, starting when he gave her a Valentine’s Day card. The male co-worker told the female employee that he stayed up until 2:00 a.m. trying to decide what to write on      Continue Reading...
Take Time To Make Good Decisions
By: Boyd Byers

People are five times more likely to do the right thing when given time to think it over than they are when they have to make an instant decision.  The research behind this statistic, conducted by a professor at the Kellogg School of Management at Northwestern University, is described in an article in the February/March issue of the Academy of Management Journal.  The study concludes that organizations should "consciously design moral decision-making processes, integrating them into training and enforcing them institutionally via policies, rewards, and sanctions. Policies mandating a 'cooling-off period' or multiple levels of approval for consequential decisions, for example, might provide institutional analogs for contemplation, and ethics hotlines might act as institutional conversations. Opportunities for instituting and improving these kinds of procedures abound."  In short, think before you leap.

So what does this have to do with employment law?  The obvious application is retaliation. 

After staying steady for nearly a decade, the number of retaliation claims filed with the EEOC has shot up every year since 2007.  What happened in 2007?  The U.S. Supreme Court decided Burlington Northern v. White.  In that case the Court expanded the scope of actionable retaliation claims to include actions viewed by a reasonable person in the employee's position as materially adverse, even if they did not result in an ultimate employment action like discharge or demotion.  

The steady rise in the number of retaliation claims filed with the EEOC is depicted on the chart below:

Now back to the Northwestern study.  When an employee makes a bogus accusation of discrimination or asserts workplace rights in an opportunistic way, the supervisor's immediate instinct may be      Continue Reading...

HR Resolutions for 2012
By: Boyd Byers

It’s not too late for human resources professionals to make a few resolutions for 2012.  If you need help getting started with your list, check out this article from HR Hero Line, featuring ideas from several employment lawyers across the country, including Kansas Employment Law Blog author Boyd Byers.  (HR Employment Law Resolutions for 2012)  Suggestions include: updating your sexual harassment policy, creating a social media policy, reexamining your FLSA classifications, and ensuring ADA and Genetic Information Nondiscrimination Act (GINA) compliance.

New Immigration Laws Likely On Legislative Agenda
By: Boyd Byers

There are an estimated 65,000 illegal immigrants in Kansas. As we previously reported, Kansas lawmakers are expected to debate tougher laws targeting these immigrants when the 2012 legislative session opens on Monday, January 9. One proposal likely to receive serious consideration is a requirement that companies doing business with the state use the federal E-Verify system to check workers’ status. Business groups have expressed concern about the cost of compliance with such potential new hiring and employment requirements. We’ll keep you posted on these and other legislative developments that affect employers in Kansas.

NLRB Postpones Posting Deadline
By: Boyd Byers

On December 23 the National Labor Relations Board agreed to postpone the effective date of its new employee rights notice-posting rule. The extension moves the implementation date from January 31 to April 30, 2012. Under the new rule, most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date. The notice and additional information on posting requirements are available on the NLRB's website, www.nlrb.gov. The NLRB took this action, at the request of the federal court in Washington, D.C., to facilitate resolution of legal challenges to the rule.

Top 10 'Strange' HR Stories of 2011
By: Boyd Byers

An applicant who said she had to work in an office by herself because she smelled like fish. Faking a robbery as a workplace prank. An applicant who listed his dog as a reference on his résumé.

What do the above have in common? All made the top 10 'HR Strange but True!' stories of 2011. To see the complete list and read the stories, click here

2012 Kansas Legislative Insights
By: Boyd Byers

2012 is poised to be a milestone Kansas legislative session.  Some of the items on the agenda, such as immigration reform and changes to KPERS funding, would directly affect certain Kansas employers.  Jim Maag, Governmental Affairs Consultant to Foulston Siefkin LLP's Public Policy Law and Governmental Relations Practice Group, previews the 2012 session in the new issue of Kansas Legislative Insights.  Click here.

Supreme Court News
By: Boyd Byers

One perk of being on the U.S. Supreme Court is that you get to decide which cases you want to hear and which ones you don’t. Most cases cannot be appealed to the Supreme Court as a matter of right. So a losing party seeking Supreme Court review must file a petition for writ of certiorari, which must be granted by at least four of the nine Justices. (In case you're wondering, which you probably aren't, "certiorari" is a Latin word meaning "to be more fully informed.") The Court “grants cert.” to only about one percent of the petitions.

Today the Supreme Court agreed to review one employment-law case and declined to review another. The High Court agreed to review the high-profile case involving the 2010 Arizona immigration law that has been copied by several other states. The Court will decide whether federal immigration law preempts a state immigration law that, among other things, makes it a crime for an undocumented alien to seek employment. However, the Supreme Court declined to review a Tenth Circuit Court of Appeals ruling that federal sector Age Discrmination in Employment Act (ADEA) claims are subject to the same "but for" causation standard as private sector ADEA claims. 

Watch Out For HR Ninjas
By: Boyd Byers

Are Rockstars and Ninjas running rampant in your workplace? More and more companies are dumping their mundane old job titles for creative new monikers like these, according to an analysis of business card trends.    

The most-popular new names include Ninja, Rockstar, Geek, Guru, and Wrangler. These and other inventive job titles, like Czar, Kahuna, and Mad Scientist, let workers bring some personality and fun to their jobs.  The trend started with technology companies and is gaining traction in a wide range of industries. But don't expect the demise of traditional job titles at most companies.

From the perspective of an Employment Law Guru (hey, that sounds kind of cool), there's nothing inherently wrong with colorful job titles, if that approach is compatible with your company culture and customer base. It might even give you a leg up in recruiting for competitive creative or technology jobs. 

But use common sense and don't get carried away. Job titles (formal or informal) that convey sexist, racist, or religious overtones should be avoided. So no Wenches, Popes, or Nazis (remember the Soup Nazi from Seinfeld?). Even titles like Ninja or Kahuna could be problematic if directed at specific employees because of their race, ancestry, or national origin. Also stay clear of offensive business cards, such as the ones ordered by Facebook founder Mark Zuckerberg early in his career, which read, "I'm CEO, bitch." As any HR Rockstar knows, what some employees find clever or funny can be offensive to others.

Texas A&M Fumbles Football Coach Firing
By: Boyd Byers

Coaching college football is a tough job. The hours are long, the pressure is intense, and if you don’t win—and win soon—you’re gone.     

That’s not news to sports fans in Kansas. Last week KU fired football coach Turner Gill following two lackluster seasons. “There’s only two things in athletics, results and hope,” former KU coach Glen Mason said. “There’s a lot more hope out there than results because results are too hard to get.” But without results or hope, the coach’s days are numbered.  
So it was no surprise that Texas A&M fired coach Mike Sherman yesterday. The talent-loaded Aggies started the season with great promise, but skidded to a 6-6 record as a result of several late-game collapses. But the way Texas A&M handled Sherman’s discharge should make any human resources professional cringe.
Here’s how it went down, as described by Sherman himself: “I was on a recruiting trip … we were almost in the driveway when I got a call from our athletic director informing me of termination. It was disappointing to me because my family found out before I did, because it was released before I was told. I think we’re better than that.”
In Texas A&M’s defense, perhaps there were extenuating circumstances that are not known to the public. But it sure seems that with a little planning the university could have been handled things better that it did. 
As any good manager or HR pro knows, discharge meetings should be conducted discreetly and professionally. Deliver the news personally—not over the phone or by email. Choose a time and location      Continue Reading...
A Case of the Cyber Mondays
By: Boyd Byers

Today is Black Friday, typically the busiest shopping day of the year. This is followed by Cyber Monday, one of the busiest online shopping days of the year. Many online shoppers make their purchases from the office. In fact, half of U.S. workers plan to shop online while at work this holiday season, according to a survey by CareerBuilder. 

Employers need to think about how to deal with employees who use company time and equipment for non-work purposes, including online shopping. The survey shows that twenty-two percent of employers have fired an employee for non-work-related Internet usage, and seven percent have fired an employee specifically for online holiday shopping. 
Some employers have a no-tolerance standard for personal internet use on company computers and smart phones. Others employers allow employees to use their work computers for shopping and other personal use, as long as it’s done off the clock. Still others allow reasonable personal use, even during work time. 
Every employer needs to decide which approach is best for its workplace. But whatever the rules, they should be clearly written and communicated to employees. These rules then need to be evenly and uniformly enforced. So this holiday season, take time to assess your company’s electronic communication policy, the way it’s communicated to employees, and the way it’s enforced. Reminding employees about the rules--before one of them gets into trouble for buying a Chia Pet for Aunt LuLu when she was supposed to be working--is a great holiday gift. 
Lessons from Penn State
By: Boyd Byers

The sordid, surreal revelations at Penn State University over the past few weeks should serve as a wake-up call to employers. While the issues are not exactly the same, and without minimizing the tragedy of the alleged child sex victims, every employer in America should be doing some serious self-reflection about the way it thinks about and deals with sexual harassment in the wake of the Penn State fiasco. 

Does your company have an appropriate written anti-harassment policy? Does it specify how and to whom reports of sexual harassment should be reported? Further, does it mandate reporting by any employee who experiences or observes workplace harassment? A policy that imposes an affirmative obligation on employees to report any witnessed harassment is likely to help deter and increase detection of improper conduct.
A policy alone is not enough, of course. Do you regularly (at least annually) communicate the policy and provide training to all employees? Do you provide professional training to managers on how to recognize harassment and handle employee complaints?  Are you confident that every last manager in your organization would do the right thing if confronted with evidence or allegations of harassment?  Are your human resources professionals well-versed in how to investigate and follow-up on harassment reports, and the right way to document all of this? Does your organization, starting at the top level of management, foster a culture of zero-tolerance of sexual harassment?     
If your answer to any of these questions      Continue Reading...
State Tech Chief Resigns After Getting Third Degree About His Degree
By: Boyd Byers

Jim Mann, recently hired as chief information technology officer for the Kansas executive branch, resigned earlier this week.  Mann stepped down a day after questions arose about his academic degree, and hours after Governor Brownback acknowledged that his staff had not thoroughly vetted Mann's educational background.  Mann's on-line resume says he holds a bachelor's of business administration degree from the University of Devonshire.  But this institution is not accredited and in fact has no degree-granting authority.  In other words, it's what some might call a "diploma mill."

High-profile cases like this are old hat.  It's been ten years since Notre Dame hired George O'Leary to be its new head football coach--and then fired him five days later when a reporter discovered he had lied on his resume about obtaining a master's degree from a non-existent university and earning football letters at a school where he was never even on the team.  Six years ago Radio Shack CEO David Edmondson resigned after a newspaper reported that he had not actually earned degrees he claimed on his resume.  (But he still cashed in on $1 million in severance pay on his way out the door.) 

Stories like this should give you pause to think about your applicant screening and background checking processes. To review steps you can take to detect misrepresentations before applicants are hired, and minimize liability when you fire an employee if you later discover he or she was dishonest or not forthcoming during the application process, check out this prior post:  The Great Imposter 

Bad Haircut Leads to Unfair Labor Practice
By: Boyd Byers

What’s the difference between a good haircut and a bad haircut?  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 it violated the National Labor Relations Act by firing the employee for engaging in protected concerted activity.  
So how did a bad haircut lead to an unfair labor practice charge and a federal lawsuit? 
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility.  Embarrassed by a “terrible haircut” and unable to “do anything” with her heir, Wright-Gore began wearing a hat to work.  After a week, she was told the hat violated the dress code, so she needed to remove the hat or go home.  Wright-Gore 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.  She dressed as a “race-car fan,” and her costume included—you guessed it—a hat.  She was told to remove the hat, which she did, but she was written up for insubordination.
Over the next few days, Wright-Gore observed that other employees were wearing hats and displaying tattoos, in violation of the dress code, without consequence.  So she began talking to      Continue Reading...
Hey Kids, No Texting While Driving the Combine
By: Boyd Byers

Kansas has a strong agricultural tradition.  Kansas farmers lead the nation in wheat production.  Almost 20 percent of all U.S. beef comes from Kansas.  Our state ranks high in many other crop and livestock statistics as well.  Agriculture and agribusiness are crucial to the Kansas economy.  In fact, one in five Kansans work in agriculture-related jobs.

In rural areas, teenagers often work part-time performing agricultural work.  I grew up in a small town, and from the time I was twelve years old until I left for college I spent large parts of my summers in the fields baling hay, detasseling corn, and walking beans for pay.  Some farm operations and other agricultural businesses depend heavily on part-time youth workers.  
Earlier this fall, the U.S. Department of Labor proposed, in its own words, a “dramatic updating” to its child labor regulations directed toward agriculture-related jobs.  The proposed changes include:
·       Preventing youth under 18 years of age from working in grain elevators, grain bins, silos, feed lots, stockyards, livestock exchanges, and livestock auctions, or otherwise being employed in the storing, marketing, and transporting of raw farm products.
·       Prohibiting hired farm workers under age 16 from operating almost all power-driven equipment, except for some “student-learners” under specified conditions.
·       Prohibiting youth from using electronic devices, including communication devices, while operating power-driven equipment. (In other      Continue Reading...
Don't Let XXX Mark Your Spot
By: Boyd Byers

This posting departs from the subject of employment law.  But we think it's important that your company is aware of the new .xxx domain registry being introduced for adult entertainment websites.  More particularly, we think it's important that you are aware that if you want to stop your trademark from being available as a "yourbrand.xxx" domain name, you only have until October 28, 2011 to submit a "Sunrise B" application.  If approved, no one will be able to register “yourbrand.xxx" as a pornography site.  To learn more about how you can protect your brand from being associated with an .xxx domain name, click here.

Beware of Black Swans
By: Boyd Byers

Europeans in the Middle Ages came up with the colloquialism “rare as a black swan” to describe impossibility, because they knew good and well that all swans are white.  Then Dutch explorer Willem de Vlamingh discovered black swans in Australia in 1697.  Oops.  After that the term “black swan” was used to describe a perceived impossibility that might later be proved possible.             

Philosopher Nassim Nicholas Taleb expanded on this idea and developed it into a theory, which he described in his 2007 bestselling book, The Black Swan: The Impact of the Highly Improbable.  A black swan, as described by Taleb, is an unexpected, high-impact event that comes as a surprise to the observer, but which the observer rationalizes afterwards as if it could have been expected.  World War I, the Internet, and the September 11 terrorist attacks are classic examples of black swan events, according to Taleb.
Taleb cautions that businesses need to be prepared for black swan events.  He wrote in 2007 that banks and trading firms had exposed themselves to massive losses beyond the predictions of their limited, and thus defective, models.  The events of 2008 seem to have proven him right.  
“Black Swan,” the movie, is a 2010 psychological thriller starring Natalie Portman as a ballet dancer in a production of “Swan Lake.”  The film received critical praise, including several Academy Award nominations, and Portman won the Best Actress Oscar      Continue Reading...
Court Is Now In Session
By: Boyd Byers

October is my favorite month of the year.  Warm, sunny days, followed by cool, crisp nights.  Colorful foliage.  Fall festivals.  College football.  Playoff baseball.  And, of course, the start of another U.S. Supreme Court session.

The Supreme Court reconvened today, the first Monday in October.  There are several employment-law-related cases on the docket.  Perhaps the most-anticipated case before the Justices is the legal challenge to the Affordable Care Act (health care reform law).  Another closely watched case will address whether Arizona’s tough immigration law is preempted by federal law.  The High Court will also decide whether the “ministerial exemption” to the ADA applies to a religious teacher at a church school, and whether states can be sued under the FMLA’s “self-care” provision for failing to provide employees with 12 weeks of unpaid leave for their own serious health condition.  Kansas Employment Law Blog will keep you up to date as these and other cases affecting employers are decided.     
The Worst Boss Ever?
By: Boyd Byers

You’ve heard stories about bad bosses. And you’ve heard stories about workplace wagers.  But have you heard the one about the boss who held a contest in which all employees were asked to predict which of them would be the next one fired, with a cash prize awarded to the winner?

The boss, who owns a convenience store chain, outlined the rules of the game in a memo sent to all employees. It said:

New Contest – Guess The Next Cashier Who Will Be Fired!!! 
To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Write their name [the person who will be fired], today’s date, today’s time, and your name.  Seal it in an envelope and give it to the manager to put in my envelope.
Here’s how the game will work:  We are doubling our secret-shopper efforts, and your store will be visited during the day and at night several times a week.  Secret shoppers will be looking for cashiers wearing a hat, talking on a cell phone, not wearing a QC Mart shirt, having someone hanging around/behind the counter, and/or a personal car parked by the pumps after 7 p.m., among other things.
If the name in your envelope has the right answer, you will win $10 CASH.  Only one winner per firing      Continue Reading...
Application Mistakes Revisited
By: Boyd Byers

A couple of weeks ago I wrote about humorous application mistakes reported by human resources professionals.  After seeing my blog post, one reader shared a story that's too good to keep to myself. 

It reminded me of when I was in college and I worked at a bar.  The application asked for an emergency contact number.  One lady wrote “911.”

Thanks for sharing.  It makes me wonder, however, what this applicant wrote in the line titled "sex."

IRS Calls 'Olly Olly Oxen Free' to Employers Who Voluntarily Reclassify Contractors as Employees
By: Boyd Byers

Olly olly oxen free!

Do you remember this chant as the “all clear” signal when playing tag, hide-and-seek, and similar childhood games?  (In case you’re wondering, linguists think the phrase probably evolved from “all ye, all ye, ‘outs’ in free” as it was passed down over generations of schoolchildren.)

On September 21, the Internal Revenue Service announced the Voluntary Classification Settlement Program (VCSP). It’s sort of like an “olly olly oxen free” for employers who have misclassified employees as independent contractors.  Sort of. It’s not entirely free, of course.  But the program does offer employers substantial relief from past federal employment tax liability if they agree to get into compliance going forward. 

The VCSP is available to employers who are currently treating a class or group of workers as independent contractors, but want to treat the workers as employees prospectively.  In exchange for agreeing to treat the workers as employees for future tax periods, employers participating in the VCSP get the following relief: 
  • pay only 10 percent of the employment tax liability that may have been due on compensation paid to the workers for the most recent tax year;
  • no liability for any interest and penalties on the amount; and
  • not subject to an employment tax audit with respect      Continue Reading...
Business Groups Sue NLRB Over Union Poster Rule
By: Boyd Byers

As we previously reported, last month the National Labor Relations Board issued new regulations that require employers to post notices informing workers of their rights under the National Labor Relations Act. (See NLRB Issues New Posting Rule.) This week the U.S. Chamber of Commerce sued the NLRB to block the rule. It alleges that the NLRB does not have authority to force employers to post the notifications or impose penalties for failing to do so, and that the notification rule violates employers’ First Amendment rights. Two other business groups, the National Association of Manufacturers and the National Federation of Independent Businesses, previously sued the NLRB over the union poster rule. We’ll let you know how it all shakes out. Until the courts rule on this issue, employers are well-advised to comply with the posting requirements, which become effective on November 14, 2011. 

Listing Your Dog as A Reference, and Other Common Résumé Mistakes
By: Boyd Byers

Nearly half of human resources managers spend an average of less than one minute reviewing a job application, according to a recent survey by CareerBuilder.com.  So it's not surprising that job seekers include information in their applications and résumés to attract a potential employer's attention.  But many of these attempts to create a positive impression fall flat.  Here are some of the most unusual application gaffes reported by human resources and hiring managers responding to the survey:

- Listed her dog as a reference. 

- Gave contact email address of "shakinmybootie." 

- Listed the ability to do the "moonwalk" as a special skill. 

- Husband and wife, who were looking to share the job, submitted a co-written poem. 

- Stated he would be a "good asset to the company" ... but failed to include the "et" in the word "asset."

- Shipped a lemon with resume, saying "I am not a lemon."

- Insisted the company pay him to interview with them, because his time was valuable.

To see the entire list and read more about the survey, click here.

Do you have an unusual application story you'd like to share?  If so, contact Boyd 

Feds Find Fault with Firm's Facebook Firings
By: Boyd Byers

A non-profit organization violated the National Labor Relations Act by firing five employees who trash-talked a co-worker on Facebook, a National Labor Relations Board administrative law judge found. The employer argued that it fired the employees--who posted angry and defensive comments about the co-worker on one of their Facebook pages--for bullying and harassing the co-worker in violation of its zero-tolerance policy against harassment. But these Facebook rants constituted "concerted activity" protected by the NLRA, the ALJ ruled, so the organization must reinstate them with full back pay.

Employers have legitimate business reasons to protect their good will and to foster a harmoneous workplace. They also have a legal obligation to protect employees from harassment. So the NLRB's stance on social media policies and practices obviously puts employers in a difficult position.

The case is Hispanics United of Buffalo Inc., NLRB No. 3-CA-27872 (Sept. 2. 2011, released Sept. 6, 2011). You can read the full opinion here.

For more on this subject, click on the links below to our prior blog posts:

In Your Facebook--NLRB Scrutinizes Employers' Social Media Policies (08/23/2011)

Social Media and the NLRB: Where Are the Boundaries of Protected Activity? (05/20/2011)

Social Media and the National Labor Relations Act (02/08/2011)

NLRB Joins Fray on Facebook Posts (11/09/1010)

NLRB Issues New Posting Rule
By: Boyd Byers

Last Friday the NLRB published its Final Rule requiring all employers covered by the National Labor Relations Act to post a notice detailing employees’ rights under the Act.  The Rule goes into effect on November 14, 2011.  All employers covered by the Act must have their notice posted by that date, regardless of whether their employees are currently represented by a union.  Click here to read about the required posting and the pentalites for non-compliance.

Dealing with Jane and Johnny Drama
By: Boyd Byers

Do you have drama queens and kings in your workplace?  To learn why they act the way they do, the challenges they present for management, and strategies for dealing with them, check out this article in HR Hero Line

Swimsuit Suit
By: Boyd Byers

I've heard of employees being fired for revealing too much skin.  But being squeezed out of a job for refusing to squeeze into a Speedo?  That's a new one.

Roy Lester, a 61-year-old lifeguard, is suing his former employer for age discrimination.  He alleges he was fired when he declined to don a snug-fitting Speedo, and that this dress code policy was a ruse "to get rid of the older guys." 

"I wore a Speedo when I was in my 20s.  But come on. There should be a law prohibiting anyone over the age of 50 from wearing a Speedo," Lester said. 

Read the full story here.

Health Care Reform 102
By: Boyd Byers

Jason Lacey, a Foulston Siefkin LLP partner who advises employers in the area of employee benefits, presented a seminar titled “Health Care Reform 102” to HR professionals and business managers on August 18 and August 23 in Wichita.  The workshop explored in detail two of the more-troubling aspects of health care reform law for employers:  (1) the new rules prohibiting discrimination in insured health plans, and (2) the new play-or-pay penalties that will impact many employers beginning in 2014. 

The nondiscrimination rules prohibit employers with insured health plans from discriminating in favor of highly compensated employees as to either eligibility or benefits.  These rules require employers that offer an insured health plan to make it broadly available to employees and to provide all covered employees with the same benefits.  “Every organization will have at least one highly compensated employee for purposes of these rules,” Lacey said, "so employers cannot assume they are exempt from the rules just because they are small or do not have highly paid employees."  The rules are technically effective now, although the IRS is not enforcing the requirements until further guidance is provided.  That guidance could be issued any time and is expected no later than 2014.  Once enforcement begins, employers that fail to comply will risk exposure to a steep penalty of $100 per day for each individual who is discriminated against.
The play-or-pay penalties that begin in 2014 are the primary mechanism in the health care reform law that prod      Continue Reading...
Old School
By: Boyd Byers

My kids went back back to school this week.  The start of a new school year got me thinking about my dad, who was an elementary school principal for many years.

Dad used to keep in his office an old laminated sign titled “School Rules.”  There are only four: 
  1. Behave in a safe and orderly way.
  2. Respect people and property.
  3. Follow directions.
  4. Accept correction or a consequence.
How simple, yet comprehensive. 
I have that sign, of unknown age and origin, hanging in my office today.  If only today’s workplace discipline policies could be so succinct and straightforward.  But, alas, the grown-up world is a complicated place.
KDOL To Hold Workers Comp Seminar
By: Boyd Byers

The original Kansas Workers' Compensation Act was enacted in 1911.  The Act's centennial saw many changes, as it underwent a major overhaul this year.  (Click here)

These amendments and other new happenings in the world of Kansas workers comp will be the focus of the Kansas Department of Labor's 37th Annual Workers' Compensation Seminar.  The two-day seminar will be held on October 4 and 5, 2011, at the Overland Park Convention Center.  For complete details and registration, go to http://www.dol.ks.gov/seminar/seminar.aspx.

¿Es Legal Tener Reglas Que Requieren Hablar Solo Ingles en el Trabajo?
By: Boyd Byers

Earlier this year the U.S. Census Bureau released detailed 2010 Census population totals and demographics.  The data reveal that six percent of Kansans were born in a foreign country, and ten percent of Kansans speak a language other than English at home.

Given these numbers, it’s not surprising that Kansas employers are more-frequently facing workplace language issues.  Problems may arise when two or more workers communicate in a language other than English, and customers or other employees can overhear but cannot understand these conversations.  In response, some employers have implemented English-only rules to ensure that customers do not feel uncomfortable and/or to avoid feelings of alienation or hostility among co-workers.  
But, to pass legal muster, English-only rules must be job-related and consistent with business necessity.  The EEOC takes a restrictive view on English-only rules.  Generally, employees’ concern that other employees are talking about them behind their back is not enough to justify such a rule. In addition, employers may not rely on coworker, customer, or client discomfort or preference as a justification or defense to discrimination based on race or national origin. 
According to the EEOC, an English-only rule is justified by business necessity if it is needed for an employer to operate safely or efficiently.  Below are some situations in which the EEOC says business necessity would justify an English-only rule:
The Great Imposter
By: Boyd Byers
Barry Bremen, known to sports fans as The Great Imposter, died on June 30. While the name may not be familiar, you may remember his gate-crashing pranks during the late 1970s and 1980s.
Bremen first made headlines in 1979 when he donned a Kansas City Kings uniform, snuck onto the floor, and participated in pre-game warm-ups at the NBA All-Star Game. Later that year, clad in a New York Yankees uniform, he got on the field and shagged flies for half an hour at the Major League Baseball All-Star game. He nearly made it into the American League team photo before he was caught. 
Bremen gained even more notoriety when he posed as a Dallas Cowboys cheerleader. But perhaps his most-famous stunt was crashing the 1985 Emmy Awards and going on stage to accept the Best Supporting Actress award for Hill Street Blues’ Betty Thomas, who was late getting out of her seat.
Bremen’s other famous exploits included: sneaking on the course and playing practice rounds at three U.S. Open golf tournaments; dressing as an umpire and participating in the pre-game umpire meeting at the 1980 World Series; and posing as a referee at the 1980 Super Bowl. His fun-loving stunts garnered him an appearance on “The Tonight Show” and a profile in People magazine. 
It was obvious Bremen just wanted to have some      Continue Reading...
Confucius Says: He Who Retaliates Digs His Own Grave
By: Boyd Byers

The thirst for revenge is among the strongest of human emotions.  In fact, the innate human desire to “get even” has driven much of the history of the world.  But acting on feelings of revenge can have dire consequences, not only in the world at large, but particularly in the world of employment law.

Most employment-protection laws contain anti-retaliation provisions.  And courts are broadly interpreting and applying these provisions.
The U.S. Supreme Court has recognized and expanded the right to bring retaliation claims in a series of cases over the past several years.  In January, the Court ruled that Title VII’s anti-retaliation provision covered an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim.  (Supreme Court Finds in Favor of Fired Fiance 01/25/2011)
In March, the Court held that the FLSA’s anti-retaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints. 
These cases follow prior decisions in the last five years in which the Court ruled that: 
·       Title VII’s anti-retaliation clause, which refers to “opposition,” does not require active opposition, but encompasses involuntary participation, such as making statements during an employer’s internal investigation;
·       Employees can bring retaliation claims under the ADEA;
·       Employees can bring retaliation claims under Section 1981 of Chapter 42 of the      Continue Reading...
Workers Comp Reform Redux
By: Boyd Byers

We previously published a summary of the most-significant changes in the law brought about by the Kansas Workers Compensation Reform Act.  For those of you who want to know more details, but are not depraved enough to attempt to read the Act itself (don't be ashamed--I repeatedly tried to read War and Peace but never made it past page six), we offer a more-comprehensive summary prepared by the Kansas Legislative Research Department.  Click here.         

Vacation, Schmacation?
By: Boyd Byers

We are now in the heart of vacation season.  American workers get 13 annual paid vacation days, on average, according to 2010 data.  This is near the bottom of the list of industrialized countries, far behind France (37 days), Germany (35), the United Kingdom (28), Canada (26), and Japan (25).  Further, only 57 percent of Americans even use all of their time off.   

Why the disparity?  Cultural differences play a large role.  In addition, because of the poor U.S. economy over the past several years, American workers may not want to risk losing their jobs by being away from work for too long. 
What can employers do to manage their vacation policies, and employees’ use of vacation time, for the benefit of the organization?  Read on.  
Smoke-free for One Year
By: Boyd Byers

Today marks the one-year anniversary of the Kansas Indoor Clean Air Act.  This law prohibits smoking in most indoor public places and employment places, including within 10 feet of any doorway, open window, or air intake of a building where smoking is prohibited.  If you were in a coma last summer when the law went into effect, or just haven't made the time to get your company into compliance yet, here are the steps you need to take now, according to the Kansas Department of Health and Environment:

1.                  Adopt a written smoking policy to prohibit smoking in all areas of employment and communicate this policy to all current employees and all new employees upon hiring.

2.                  Remove all ashtrays and matches.

3.                  Post a no smoking sign.

4.                  Ask any person violating the law to stop smoking. Remind customers of the law and politely explain they must step outside to smoke. Train your staff regarding what to say to customers, for example: “We’re now smoke-free, you’ll have to put out your cigarette,” or “The new law prohibits smoking indoors.  Thanks for your cooperation.”

5.                  Refuse service to any person who continues to violate the law.

6.                  Ask any person violating the law to leave.

7. Continue Reading...

The Supreme Court, Congress, and Isaac Newton
By: Boyd Byers

Newton's third law of motion states that for every action there is an equal and opposite reaction.  Great, you say, a lawyer who fancies himself as a physicist.  And what the heck do physics