Real Life Is Stranger Than Fiction
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12/28/2018
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By: Teresa Shulda
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Employment
attorneys
always
tell
their
colleagues
that
the
best
practice
area
is
undoubtedly
employment
law.
HR
professionals
probably
feel
much
the
same
way.
Every
personnel
situation
is
different,
it’s
never
boring,
and
just
when
you
think
you’ve
seen
it
all,
you
hear
about
another
wild
day
in
the
workplace.
2018
was
no
different,
and
the
following
real-life
cases
prove
it.
Georgia
man
gets
a
kick
in
the
butt(dial)
James
Stephens
worked
as
the
Fiscal
Officer
for
the
Georgia
Subsequent
Injury
Trust
Fund,
a
state
agency.
After
work
one
day,
Stephens’
boss,
Michael
Coan,
called
Stephens
at
home
on
his
cell
phone
and
they
talked
about
work
for
a
while.
Stephens
hung
up,
put
his
cell
phone
in
his
pocket,
and
went
on
a
rant
to
his
wife
for
12
minutes
about
Coan.
Unfortunately
for
Stephens,
he
had
inadvertently
“pocket-dialed”
Coan,
who
heard
the
whole
rant.
When
Stephens
went
to
work
in
the
morning,
Coan
gave
him
a
choice
–
resign
or
be
fired.
Stephens
resigned,
then
he
and
his
wife
sued
Coan
under
Georgia’s
eavesdropping
law
and
for
invading
the
Stephens’
right
to
privacy.
The
Stephens
claim
that
Coan
had
a
legal
obligation
to
hang
up
when
he
realized
the
call
was
inadvertent
rather
than
listen
in
to
the
Stephens’
private
conversation.
Coan
filed
a
motion
to
dismiss
the
lawsuit,
arguing
that
Coan
was
immune
from
the
suit
because
he
was
acting
in
his
official
capacity
as
a
state
supervisor
and
had
a
right
to
listen
to
the
conversation
of
a
subordinate
employee
Continue Reading...
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An Employee by Any Other Name: Nail Technicians Misclassified a Independent Contractors
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03/05/2018
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By: Travis Hanson
|
Recently,
the
Kansas
Court
of
Appeals
affirmed
the
district
court
and
the
Kansas
Department
of
Labor’s
(KDOL)
finding
that
nail
technicians
at
a
salon
were
employees
rather
than
independent
contractors
for
unemployment-tax
contribution
purposes.
This
case
has
important
tips
for
handling
classification
issues
in
any
industry.
Review
of
the
Record
In
2014,
Leander
and
Hongmin
(Amy)
Fisher
began
doing
business
as
Amy’s
Spa
Services,
LLC
(the
Spa).
The
Spa
classified
all
of
its
nail
technicians
as
independent
contractors.
The
KDOL
audited
the
business
to
determine
whether
the
Spa
properly
classified
the
technicians
for
unemployment-tax
withholdings.
For
unemployment-tax
contributions
in
Kansas,
an
individual
is
an
employee
if
the
employer
has
the
right
to
control
the
manner
and
means
of
the
work
performed;
whether
the
employer
exercises
that
right
is
inconsequential.
The
auditor
reviewed
the
Spa’s
independent
contractor
agreement,
interviewed
three
nail
technicians
and
Leander
Fisher,
and
reviewed
some
of
the
Spa’s
financial
documents.
The
auditor’s
review
of
the
independent
contractor
agreement
stated
that
the
parties
intended
to
form
an
independent
contractor
relationship.
Under
the
agreement,
the
Spa
purported
to
require
the
technicians
to
clean
their
workstations,
supply
the
tools
necessary
to
complete
their
jobs,
and
gave
the
technicians
discretion
to
set
their
own
prices,
as
long
as
they
did
not
undermine
the
Spa’s
prices.
The
agreement
also
provided
that
the
Spa
would
receive
all
payments
that
were
later
distributed
to
the
technicians,
and
that
Continue Reading...
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A Freaky Non-Compete Non-Sequitur
|
11/4/2014
|
By: Donald Berner
|
Recently,
a
restaurant
made
headlines
for
something
other
than
its
food. A
restaurant employee
leaked
a
version
of
the store's
non-compete
agreement
and
the
document
raised
some
eyebrows.
Specifically,
the
leaked
document
provided
that employees
would
not
work
at
any
restaurants
within
three
miles
of
a
store if
the
other
restaurant
"derives
more
than
10%
of
its
revenue
from
selling
submarine,
hero-type,
deli-style,
pita
and/or
wrapped
or
rolled
sandwiches.:
Although
there
was no
discussion
about
whether
the
store ever
tried
to
enforce
the
non-compete
agreement,
it
does
raise
some
interesting
questions
for
employers
to
consider
when
it
comes
to
restrictive
covenants
like
a
non-compete.
The
first
question
is
most
likely
whether
the
agreement
is
enforceable.
Like
most
legal
questions,
the
answer
is
"it
depends".
In
order
to
reach
a
more
definitive
answer
there
are
a
number
of
questions
to
ask. In
what
state
was
the
store
located?
In
what
state
is
the
dispute
arising?
Was
it
a
delivery
driver, food
preparation
staff,
hostess,
waitress, or
store
manager
that
signed
the
agreement?
The
answers
to
these
types
of
questions
can
make
a
big
difference
and
can
determine
whether
the
agreement
is
enforceable.
Another
common
question
related
to
a
non-compete
agreement
is
why? Employees
who
are
asked
to
sign
non-compete
agreements
frequenly
ask
employers
why
such
an
agreement
is
necessary. A
court considering
enforcement
of a
non-compete
is
likely
to wonder the
same
thing.
While employer
responses
may
vary,
typcially
the
goal
is
to
protect
confidential
information,
trade
secrets, customer
lists,
etc. The application
of
the
non-compete to
the
types
of
concerns
can
vary
dramatically
depending
on
the
employee
and
the
specific
position.
Employers
should
Continue Reading...
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Beware of the Devil in the Details—What Employers Should Do and Need to Know about the Kansas Wage Payment Act Amendment
|
05/21/2013
|
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:
- as
repayment
of
a
loan
or
advance
the
employer
made
to
the
employee
during
the
course
of
and
within
the
scope
of
employment;
- to
recover
a
payroll
overpayment;
and
- 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...
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|
Kansas Wage Payment Law Amended--No Foolin'
|
04/05/13
|
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:
- as
repayment
of
a
loan
or
advance
the
employer
made
to
the
employee
during
the
course
of
and
within
the
scope
of
employment;
- to
recover
a
payroll
overpayment;
and
- 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...
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|
Can You Make Your Employees Give More Notice Than the Pope?
|
03/13/2013
|
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...
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Possible Federal Relief for Employer Protection of Trade Secrets
|
08/13/2012
|
By: Donald Berner
|
Last
month
a
bill
was
introduced
in
the
U.S. Senate
to
provide
a
limited
federal
cause
of
action
for
employer
use
in
protecting
a
company's
trade
secrets
from
misappropriation.
The
Protecting
American
Trade
Secrets
and
Innovation
Act
of
2012
was
introduced
and
referred
to
the
Senate
Committee
on
the
Judiciary.
The
goal
of
the
bill
is
to
provide
a
federal
cause
of
action
to
employers
attempting
to
file
litigation
to
protect
a
company's
trade
secrets.
As
currently
structured,
the
new
legislation
would
provide
this
cause
of
action
under
a
limited
set
of
circumstances.
The
current
option
for
an
employer
is
to
bring
claims
in
state
courts
with
the
underlying
law
varying
significantly
from
state
to
state.
This
variance
in
state
law
can
create
complications
and
sometimes
make
it
difficult
for
companies
to
effectively
defend
their
confidential
information.
Stay
tuned
as
this
bill
makes
its
way
through
the
legislative
process.
To
track
the
legislation,
click
here.
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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