A Christmas Story: Tales of Woe and Joy from the Holiday Party
|
01/02/2020
|
By: Teresa Shulda
|
Now
that
the
holidays
are
over,
we
can
look
back
on
a
year
of
accomplishments
and
success.
Or,
for
some,
we
can
start
the
new
year
with
HR headaches
resulting
from
the
annual
holiday
party.
The
Naughty
List
Holiday
parties
are
ripe
for
mischief
and
mistakes.
The
following
are
true
stories
of
office
parties
that
went
horribly
awry.
- A
California
bank
branch
held
an
annual
holiday
party
at
a
local
restaurant.
There
were
only
about
15
people
in
attendance,
but
they
included
a
female
bank
teller,
the
teller’s
female
boss,
and
the
boss’
boyfriend
(a
manager
at
a
different
bank
branch).
The
entire
affair,
including
the
alcohol,
was
funded
by
the
bank’s
budget.
The
office
party
officially
ended,
but
the
party-goers
continued
their
revelries.
But
once
the
bank’s
party
ended,
the
bank
employees
had
to
fund
their
own
cocktails.
The
party
continued
into
the
restaurant
bar
area,
then
moved
to
another
bar
as
the
night
progressed,
and
finally
ended
up
at
the
boss’s
house.
You
can
probably
see
where
this
is
going.
The
teller
ultimately
accused
her
boss
and
the
boss’s
boyfriend
of
sexual
harassment,
and
brought
suit
against
the
bank,
alleging
that
the
bank
should
have
foreseen
the
harassment,
particularly
in
light
of
the
alcoholic
drinks
that
were
provided
at
the
holiday
party.
The
trial
court
ultimately
found
the
bank
wasn’t
liable,
largely
because
the
office
party
ended,
and
the
drinking
that
continued
wasn’t
on
Continue Reading...
|
|
Exorcise "Ghost Policies" from Your Employee Handbook
|
10/31/2019
|
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...
|
|
Have You Updated Your Employee Handbook Recently?
|
09/17/2019
|
By: Travis Hanson
|
As
a
part
of
the
2019
HR
Training
Series,
Foulston
recently
provided
a
session
on
employee
handbook
basics
to
a
group
of
HR
professionals.
Here’s
a
recap
of
some
of
the
highlights.
Employee
handbooks
should
be
updated
yearly.
It
is
also
important
to
have
employees
sign
an
acknowledgement
of
receipt
after
each
update.
This
is
because
the
acknowledgement
the
employee
signed
when
he
or
she
first
started
likely
applied
to
a
handbook
that
looked
different
than
the
current
version.
Updating
the
handbook
should
be
a
collaborative
effort
between
HR,
management,
and
legal
counsel.
If
the
handbook
says
one
thing,
but
your
managers
are
doing
something
else,
that
is
a
problem.
Management
buy-in
also
helps
ensure
that
your
policies
are
being
consistently
and
even-handedly
enforced.
Do
you
have
these
“must
have”
policies?
- At-will
employment
disclaimer
- Anti-harassment/productive
work
environment
- Equal
employment
opportunity
(EEO)
- Family
and
Medical
Leave
Act
(if
you
have
50
or
more
employees)
- Wage
deductions
- Smoke-free
workplace
Follow
your
handbook
unless
there’s
a
compelling
reason
to
make
an
exception.
Inconsistencies
between
the
policy
and
practice
could
come
back
to
bite
you.
|
|
A Friendly Notice About Two Weeks' Notice
|
03/26/2019
|
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...
|
|
A Kansas Employers’ Guide to the New Year
|
01/04/2019
|
By: Travis Hanson
|
The
start
of
the
new
year
is
a
perfect
time
for
Kansas
employers
to
address
employment
updates
from
2018
and
prepare
for
possible
changes
coming
in
2019.
In
this
article,
we’ve
summarized
a
few
changes
and
trends
from
2018,
as
well
as
a
few
changes
we
might
see
in
2019.
EEOC
&
Title
VII
Litigation
Trends.
2018
saw
another
increase
in
harassment
and
discrimination
lawsuits
being
filed
nationwide.
In
fact,
EEOC
litigation
filings
have
doubled
since
2016.
One
big
area
of
movement
is
sexual
harassment
cases
and
charges,
which
rose
significantly
in
2018
after
more
than
five
years
of
decreasing
numbers.
We
expect
this
trend
will
continue
into
2019.
Another
trend
is
the
EEOC’s
sustained
efforts
to
push
for
inclusion
of
sexual
orientation
and
gender
identity
as
protected
classes
under
Title
VII,
which
prohibits
discrimination,
“because
of
sex.”
The
Supreme
Court
has
long
held
that
Title
VII
protects
against
discrimination
for
employees
who
don’t
meet
typical
“gender
norms,”
such
as
a
woman
who
is
not
feminine
enough,
but
it
has
not
yet
addressed
head-on
the
questions
of
sexual
orientation
or
gender
identity.
Over
the
last
few
years,
the
EEOC
has
taken
a
clear
position
that
“sexual
orientation
is
inherently
a
‘sex-based
consideration’
and
an
allegation
of
discrimination
based
on
sexual
orientation
is
necessarily
an
allegation
of
sexual
discrimination
under
Title
VII.”
Currently,
Continue Reading...
|
|
FLSA 80 Years Old and Still Kicking
|
06/25/2018
|
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
|
03/14/2018
|
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...
|
|
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...
|
|
Dealing with Workplace Imposters
|
12/13/2013
|
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.
|
|
Holiday Party Fun
|
12/09/2013
|
By: Donald Berner
|
It
is
that
time
of
year
again.
Now
that
we
have
cleared
Thanksgiving,
we
are
into
the
homestretch
to
Christmas
and
the
New
Year.
As
they
say
-- "Tis
the
Season".
Well
it is
the
season for
the
annual
holiday
party
or
in
some
circles a
series
of parties
until
the
holidays
are
gone. Before
your company
holds
its
holiday
party,
take
a
quick
review
of
this
post
and
make
sure
you
are
all
set
in
the
HR office.
1.
Be
careful
with
the
alcohol.
If you
are
going
to
serve
alcohol do
your
best
to apply
some
sane
limits
upon
your
partygoers.
And
by
all
means
make
sure
that
before you
turn
off
the
lights
and
send
everyone
home
that
you
have
taken
care
of
providing
some
form of
transportation
to
those
that
failed
to
limit
themselves.
2.
It's
a
great
time
to shine
some
light
on
your
productive
work environment
policy
(anti-harassment). For
those
that
serve
alcohol
(see #1
above), harassment
concerns
may
rear
their
ugly
heads
at
the
holiday
party.
And
while
everyone
else
is
having
a
good
time,
keep
your
eye
out for problems
in
this
area
and step
in
before
it
gets
past
the
point
of
no return.
3.
If
you
have
employees
involved
in
any
of
the
setting
up
or
cleaning
up
beware
of
wage
and
hour
rules.
Remember,
employees
are
not
volunteers.
4.
Do
your
best
to
keep
the
various
religious
references
out
of
the
holiday
party.
Remember,
your
employee
group
is
diverse
and
what
might
be
acceptable
to
one
could
offend
another.
Keeping
an
eye
on
these
little
things
prior
to,
or
during,
the
holiday
party
can
help
avoid
Continue Reading...
|
|
Facebook Rants: Protected or Not?
|
11/18/2013
|
By: Donald Berner
|
On
a
number
of
instances
over
the
course
of
the
last
few
years,
the
National Labor
Relations
Board
(NLRB)
has
tackled
the
issue
of
when
to
protect
employee use
of
social media
outlets
in
the furtherance
of an
employee's
rights
under
the
National Labor
Relations
Act
(NLRA). The
early
learning
for
employers
was
to
beware
of
taking
action
if
the
employee
communicated
workplace
concerns
through social
media. As
the
NLRB
has
decided
social
media
cases, the
parameters
have
become a
bit
more
defined
for
employers.
In
a recent
decision
involving
a
series
of negative
and disparaging
types
of
employee
commments,
the
NLRB
found
the
actions
not
protected
by
the
NLRA.
The
learning
point
for
employers
is
that if
employees
cross
over the
line
with
their comments,
the
NLRB will
not
protect
those
employees
from
the
disciplinary
consequences.
Employers
should
be
mindful
that
deciding
when
the
employees
have
crossed
that
line
can
be
a
difficult
and
murky
task
and
any
decision
to
take
negative
action
can
be
risky.
To
gain
a
better
understanding
of
the
types
of
social
media
behavior
that
is
not
protected
you
can
click
here
and
then
select the
Administrative
Law
Judge's
Decision
from
November
5,
2013
to
read
the
entire
decision.
|
|
Exorcise "Ghost Policies" from Your Employee Handbook
|
10/24/2013
|
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...
|
|
Court Not Goo-Goo over Gaga—the FLSA Monster Revisited
|
10/03/2013
|
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...
|
|
Should You Let Employees Buy and Sell PTO?
|
06/12/2013
|
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
|
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...
|
|
NLRB Poster Rule Struck Down
|
05/09/2013
|
By: Donald Berner
|
In
a
decision
yesterday
out
of
the
Court
of
Appeals
for
the
D.C.
Circuit,
the
NLRB's
notice
posting
requirement
was
struck
down
as
invalid.
For
those
of
you
that
have
been
following
along
since
the
start,
the
NLRB
issued
the
poster
rule
in
August
of
2011
and
then
repeatedly
delayed
enforcement
of
the
rule
as
litigation
popped
up
in
several
federal
district
courts
as
to
the
validity
of
the
rule.
The
rule,
in
its
simplest
form,
required
employers
to
post
a
notice
containing
information
about
the
ability
of
employees
to
seek
union
representation.
Click
here
for
more
information
on
the
rule.
In
its
decision,
the
Court
held
that
the
rule
violated
an
employer's
right
to
free
speech.
The
Court
also
addressed
a
provision
in
the
rule
related
to
the
tolling
of
the
statute
of
limitations
for
filing
a
charge
based
on
a
violation
of
the
poster
rule.
This
provision
was
also
struck
down
as
invalid.
For
those
that
like
reading
court
decisions,
this
particular
portion
is
a
bit
convoluted,
but
interesting
for
reasons
beyond
the
NLRB poster.
The
tolling
arguments
touched
on
some
Title
VII and
ADEA
posting
issues
and
tolling
principles
used
by
the
EEOC.
The
Court
did
not
specifically
rule
on
the
tolling
issues
beyond
the
NLRB poster;
however,
it
did highlight
and
call
into
question
the
validity
of
tolling
in
that
context
as
well.
For
now
the
poster
rule
looks
to
be
on
its
death
bed,
but
one
never
knows
what
appeal
may
arise
or
what
another
Court
of
Appeals
might
have
Continue Reading...
|
|
States Continue to Weigh in on Social Media Access
|
04/26/2013
|
By: Donald Berner
|
State
legislatures
continue
to
debate
and
pass
laws
restricting
employer
behaviors
with
respect
to
the
access
to
employee/applicant
social
media
accounts.
At
the
present
time,
six
states
(CA, IL,
MI,
MD, NM,
and
UT) have
passed
legislation
on
this
topic
and
there
will
likely
be
others
in
time.
The
primary
focus
of
the
legislation
to
date
has
been
to
prohibit
employers
from
requiring
candidates/employees
to
provide
passwords
and
access
to
private
accounts.
Most
of
the
state
efforts
have
not
tried
to
prevent
employers
from
reviewing
publicly
available
items
published
via
social
media.
This
trend
is
likely
to
continue
and
employers
with
multi-state
operations
should
be
paying
attention
to
these
developing
statutory
enactments.
Furthermore,
even
if
you
are
in
a
state
that
doesn't
prohibit
you
from
requiring
employees
to
show
you
private
social
media
areas,
you
might
consider
whether
you
truly
want
to
engage
in
that
type
of
behavior.
There
is
a
pretty
strong
element
of
it
just
not
feeling
right.
Those
are
the
types
of
feelings
jurors
and
other
fact
finders
are
likely
to
have
as
well.
In
addition,
who
knows
what
those
private
pages/areas
are
going
to
teach
you.
There
are
plenty
of
facts
that
you
don't
really
want
to
know
when
considering
a
candidate/employee
and
their
future
with
your
company.
|
|
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...
|
|
Beware of Your Job Descriptions
|
03/28/2013
|
By: Donald Berner
|
Every
so
often
we
are
given
a
gentle
reminder
to
pay
close
attention
to
the
job
descriptions
in
place
at
our
companies.
In
a
recent
Americans
with
Disabilities
Act
(ADA) case
from
Maryland,
the
employer
failed
to
obtain
summary
judgment
because
of
the
essential
functions
listed
in
the
employee's
job
description.
This
means
the
plaintiff
gets
to
present
his
case
to
the
jury.
The
key
issue
revolved
around
whether
having
a
commercial
drivers
license
was
an
essential
function
of
the supervisory
position
held
by
the
plaintiff.
The
job
description
listed
the
commercial
drivers
license
as
a
preference
for
the
supervisor,
as
opposed
to
a
required
item
in
the
basic
driver
job
description.
This
small
difference
is
what
led
to
the
employer
ending
up
in
what
is
now
a
pretty
tough
spot.
So
make
sure
you
look
at
your
job
descriptions
and
carefully
weigh
the
use
of
"preferred"
versus
"required."
|
|
Get Back to Work: The Telecommuting Debate
|
03/18/2013
|
By: Donald Berner
|
Recently,
Melissa
Mayer
reignited
the
telecommuting
debate
when
an
internal
Yahoo!
memorandum
leaked.
Starting
in
June,
Yahoo!
employees
with
remote
working
arrangements
must
physically
report
to
company
offices.
But,
Yahoo!
isn’t
the
only
company
rolling
back
the
telecommuting
red
carpet.
Best
Buy
also
announced
the
end
of
its
ROWE
(Results-Only
Work
Environment)
program.
Most
corporate
Best
Buy
employees
will
now
have
to
report
to
the
company’s
headquarters
in
Richfield,
Minnesota.
Is
this
the
start
of
a
new
trend
or
merely
a
couple
companies
changing
course?
The
Wall
Street
Journal
reported
that
more
Americans
are
working
from
home
than
ever
before.
About
9.4%
of
U.S.
workers
worked
at
home
at
least
one
day
per
week
in
2010,
compared
with
7%
in
1997,
according
to
a
Census
Bureau
report.
So,
what
is
an
employer
to
do?
Before
changing
your
company’s
course,
here
are
a
few
considerations.
Offering
telecommuting
can
help
employers
attract
and
retain
talent.
Certain
segments
of
the
workforce
value
the
flexibility
provided
by
telecommuting
and
such
an
arrangement
can
be
a
valuable
recruiting
tool.
Before
wooing
employees
with
promises
of
work-life
balance
bliss,
carefully
consider
whether
you
have
the
tools
in
place
to
effectively
manage
performance
of
employees
who
work
remotely.
Evaluate
each
job
and
the
employee
on
an
individual
basis.
Telecommuting
is
not
the
answer
for
every
employee
or
every
employer.
|
|
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...
|
|
FMLA XX
|
02/05/2013
|
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...
|
|
Do You Know? Forfeiting Unused Vacation Time
|
01/23/2013
|
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...
|
|
"I Was Kidnapped" and Other Tall Tales
|
11/28/2012
|
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 “General” Reminder about E-mail
|
11/15/2012
|
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!
|
|
Employee Off-Duty Access: The NLRB's New Twist on the Open Door Policy
|
10/23/2012
|
By: Donald Berner
|
As
most
of
you
are
probably
aware,
the
National
Labor
Relations
Board
(NLRB) has
been
extremely
active
in
applying
the
National
Labor
Relations
Act
(NLRA)
in
ways
that
have
are
having
a
significant
impact
on
employers
without
labor
unions.
The
most
well-known
of
these
areas
is
in
the
context
of
social-media
policies
and
the
application
of
those
policies
in
disciplinary
matters.
In
a
recently
issued
decision,
the
NLRB
took
on
the
issue
of
employee
access
to
the
employer's
facility
during
off-duty
hours.
From
a
historical
standpoint,
the
NLRB
decisions
considered restrictions
for
off-duty
employee
access
acceptable,
so
long as
the
restriction
was
clearly
communicated
to
the
employees,
limited
to
the
interior/working
areas
of
the
employer,
and
applied
to
all
employees
seeking
access
and
not
just those
engaging
in
union-related
activity.
This
standard
allowed
employers
to generally
prohibit employee
off-duty
access
and
still
allow
for
limited
exceptions
as
they
might
arise.
For
example,
an
employer could
have
a
policy prohibiting
off-duty
access
that
allowed
for
exceptions
with
manager
approval.
This
would
allow
a
supervisory
employee to
make
a
limited
exception
in
those
circumstances
where off-duty
access
was
really
necessary.
Under
the
historical
approach,
these
limited
exceptions
would
allow
for enough
flexibility
to
handle
emergency
situations
and
still
not
run
afoul
of being
interpreted
in
a
way
that
was
targeting
employees
engaging
in union
activity.
The
historical
approach
followed
by
the
NLRB
dates
back
over
thirty-five
years
and
has
worked
sufficiently
well
to
balance
the
needs
of
employers
to
secure
their
facilities
while
still
allowing
some
flexibility
when
needed
by
employees.
The
current
NLRB,
however,
in
Continue Reading...
|
|
An Employer Wins A Battle in the Social Media War as NLRB Upholds Employee Facebook Posting Related Discharge
|
10/02/2012
|
By: Donald Berner
|
Earlier
this
week
the
National
Labor
Relations
Board
(NLRB)
upheld
a
car
dealership's
discharge
of
a
salesman
for
posting
photos
and
comments
to
his
Facebook
page.
The
NLRB's
decision
is
a
welcome
victory
for
employers
after
a
long
series
of
employer
unfriendly
pronouncements
from
the
NLRB.
Over
the
last
year
or
two,
the
NLRB
has
provided
employers
with
a
series of
memoranda
designed
to highlight
the
acceptable
parameters
for
employer
policies
and
employee
discipline
for
social
media
postings.
With
each
additional
bit
of
guidance, an
employer's
ability
to
deal
with
problem
social
media
postings appeared
to
become increasingly more
difficult.
While
the
NLRB should
(and
will)
ensure
that
employees
engaging
in
protected
and
concerted
activity
are
not
discriminated
against,
there
have
to be
some
boundaries
to
the
types
of comments
an
employee
can
post
for
the whole
world
to
read
that
concern
the
employer.
In
this
particular
case,
the
employee salesman
posted
two
different
sets
of
photos
and
comments
to
his
Facebook
page.
One
set
of
photos
and
comments
centered
around
a
dealership
event
related
to
the
roll
out
of
a
new
luxury
vehicle.
The
photos
and
comments
were
mocking
and
sarcastic
in
tone
and
focused
upon
the
employer's
decision
to
serve
hot
dogs,
chips,
and
water
at
the
event
as
opposed
to
something
more appropriate
for
a
luxury
event
like
"champagne
or
wine".
The
second
set
of
photos
and comments
were
related
to
an
accident
that
occurred
during
the test
drive
of
a
new
vehicle
and
were
also
sarcastic
and
mocking
in
tone.
Following
the
postings,
the salesman's
employment
with
the
dealership
was
terminated.
Continue Reading...
|
|
Do You Know? Wage and Benefit Notification
|
09/12/2012
|
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...
|
|
Honus Wagner and Employee-Privacy Rights
|
06/23/2012
|
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.
|
|
Applicants, Employers, and Social Media: The Plot Thickens
|
04/03/2012
|
By: Donald Berner
|
As
most
of
you
are
probably
aware,
social
media
policies
and
practices
established
by
employers
have
been
the
focus
of
the
National
Labor
Relations
Board
(NLRB).
It
seems,
though,
that
some
employer
interview
and
hiring
practices
have
drawn
quite
a
bit
of
negative
attention
as
of
late
from
the
mainstream
media
and
various
politicians
across
the
country.
At
the
end
of
March
a
series
of
news
media
stories
received
national attention
(and
some
news
talk
show
debate
airtime).
These
stories
were
focused
on
employers
requiring
applicants
to
provide
them
with
their
social
media
login/password
information
so
the
interviewer
could
review
the
applicant's
non-public
profile
information.
Another
twist
of
the
same
general
concept
is
for
the
applicant
to
be
required
to
log
in
and
allow
the
interviewer
the
opportunity
to
review
that
private
information
on
the
spot.
While
not
illegal
as
of
yet,
this
tactic
takes
the
review
of
an
applicant's
social
media
presence
to
a
whole
new
level.
There
are a
number
of
risks
associated
with
reviewing
social
media
sites
(even
if
the
information
is
public)
as
part
of
the
hiring
process.
Employers
may
uncover
information
as
part
of
the
social
media
inquiry
that
it
doesn't
really
want
to
know
or
consider
in
the
hiring
process.
Taking
this
inquiry
to
the
level
of
requiring
an applicant
to
open
up
private
information
to
the
interviewer
adds
on
a
layer
of
additional
risk.
Each
employer
has
to
balance
the
risks
of
reviewing
the
social
media
information
with
the
value
of
the
information
and
its
relevance
to
Continue Reading...
|
|
Automatic Termination Policies May Equal Automatic Trouble
|
02/28/2012
|
By: Donald Berner
|
As
most
of
you
have
probably
followed,
the
ADA was
amended
a
couple
of
years
ago
to
expand
the
definintion
of disability.
The
EEOC issued
regulations
in
the
spring
of
2011
designed
to
add
some
additional
clarity
regarding
the
ADA Amendments
Act.
One
of
the
items
we
flagged
at
that
time
was
the
EEOC's
anticipated
hostility
towards
employer
policy
materials
containing
an
automatic
termination
provision
for
employees
absent
a
specific
length
of
time.
As
predicted,
the
EEOC has
successfully
brought
actions
against
employers
with
policies
of
this
nature.
Employers
still
utilizing a
policy with
automatic
termination
provisions
would
be
wise
to
review
and
amend
those
policy
materials
in
light
of
the
EEOC's
stance.
The
key
for
employers
is
to
make
sure
the
policy
provides
for
an
interactive
accommodation
process
to
occur
rather
than
a
leave
of
absence
length
triggering
an
automatic
outcome.
As
long
as
an
employer
evaluates
each
employee
situation
on
a
case-by-case
basis,
the
risk
of
an
ADA violation
drops
dramatically
(assuming
the
employer
properly
accounts
for
the
ADA requirements).
Employers
with
an
automatic
termination
trigger can
expect that the
EEOC
is
likely
to
deem
any
termination
based
on
the
trigger as
a
violation
of
the
ADA.
|
|
The Next Wave of Social Media Disputes: Who Owns the Account
|
02/21/2012
|
By: Donald Berner
|
Over
the
last
year,
the
issue
of
social
media
usage
by
employees
and
responses
from
employers
has
been
fairly
heavily
discussed
and
debated. This
discussion
has
primarily
been
related
to
discipline/termination
matters.
For
one,
the
NLRB
has
put
employer
social
media
policies
under
the
microscope
and
issued
clarifying
information
about a variety
of policy
examples.
Employers
can
expect
those
policy
language
debates
and
its
impact
on
employee
discipline
to
continue
throughout
2012.
The
next
breaking
wave
of
social
media
disputes
may be
focusing
on
ownership
of
social
media
accounts
created
and
utilized
by
employees
in
the
course
of
conducting
an
employer's
business. Imagine
your
business
setting
up
a
Twitter
account
designed
to
communicate
with
your
customer
base
and
building
a
significant
following
over
a
period
of
a
year
or
two. What
happens
when
the
employee
responsible
for
the
company's
social
media
presence
resigns
and
takes
the
account
with
her
by
simply
changing
the
login
and
password
information?
One
can
imagine
the
employer
might
file
suit
to
recover
the
account
and
the
significant
base
of
followers.
How
these
disputes
play
out
remains
to
be
seen.
There
are
currently cases
pending
in
the
Northern
District
of
California
(Twitter)
and
the
Eastern District
of Pennsylvania
(LinkedIn) involving disputes
of
this
nature.
Employers
should
stay
tuned
as
those
cases
work
toward
resolution
in
2012
or
2013.
In
the
meantime,
employers
should
consider
adding
language
to
their
social
media
policies
or
employment
contracts
to
reflect
the
employer
as
the
owner
of
the
social
media
accounts
created
on
the
employer's
behalf
by
its
employees. This
will put
employers
in
the
best
position
Continue Reading...
|
|
Be My Valentine and Dump That I-9
|
02/14/2012
|
By: Donald Berner
|
So
first
off,
there
is almost
no
connection
between
the
love
we
might
express
on
Valentine's
Day
and
I-9
forms. If
any
of
you say I-9
form
and
love
in
the
same
breath,
your
sanity
will
surely
be
questioned;
however,
if
we
talk
about
throwing
out
old
I-9
forms,
we
might
be
able
to
insert
I-9
and
love
into
the
same
sentence.
If
you
are
not
destroying
I-9
forms
for
former
employees,
it
is
time
to
consider
your
I-9
retention
practices.
As
all
of
you
know,
employers
are
required
to
complete
and
maintain
I-9
forms
and
supporting
documents
for
each
employee.
In
conducting
audits
and
visiting
with HR teams,
the
issue
of
maintaining
(retaining
I-9
forms)
is
an
area
where
employers
tend
to
err.
It
seems
that
a
lot
of
employers
maintain
I-9
forms
forever
when
there
is
no
requirement
to
do
so. The
I-9
retention
rules
are
fairly
straight
forward.
An
employer
is
required
to
retain
an
I-9
form
for
any
current
employee.
Employers
are also
required to maintain
I-9
forms
for
a
minimum
of
three
years.
Once
the
employee
terminates
employment
with
the
company,
the
I-9
must
be
retained
for
at
least
one
year
following
termination.
While
a
little
convoluted,
the
rule
is
fairly
simple.
The
I-9
must
be
retained
for
at
least
three
years
and
for
at
least
one
year
following
an
employee's
termination
of
employment.
Here
are
a
couple
of
examples
to
help
clarify:
Employee
1
starts
work
on
August
1,
2007
and
remains
employed
today.
Since
the
employee
is
a
current
employee
we
continue
to
retain
the
Continue Reading...
|
|
Beware of Cupid in the Cubicles
|
02/07/2012
|
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...
|
|
Quick Call Could Equal Big Fine
|
1/17/2012
|
By: Donald Berner
|
Late
last
year,
the
Federal
Motor
Carrier
Safety
Administration
("FMCSA")
and
the
Pipeline
and
Hazardous
Materials
Safety
Administration
("PHMSA")
established
rules
related
to
cell
phone
usage
by
motor
carriers
on
interstate
highways
and
carriers
of
hazardous
materials
on
interstate
highways.
These
new
rules
went
into
effect
on
January
3,
2012. The
new
rules,
among
other
things,
restrict
the
use
of
hand-held
mobile
phones
by
drivers
of
commercial
motor
vehicles
and
make
employers
liable
if
they
encourage
or
allow
hand-held
mobile
phone
use. Employers
should
be
mindful
of
the
FMCSA's
and
PHMSA's
approach
making
employers
responsible
for
the
actions
of
their
drivers
in
those
cases
where
the
employees
use
a
hand-held
phone
while
performing
their
duties,
carrying
out
company
business,
or
otherwise
acting
on
the
employer's
behalf
when
the
violation
occurs.
The
fine
for
these
violations
can
be
as
high
as
$11,000
per
incident.
It
goes
without
saying
that
this
new
rule
will
be
difficult
for
employers
to
implement
and
enforce
due
to
the
high
number
of
employees
carrying
their
own
personal
mobile
phones.
Employers
can
protect
themselves
somewhat
by
following
a
few
basic
precautions.
First,
while
not
a
fail-safe
remedy,
employers
should
implement
a
written
policy
prohibiting
hand-held
mobile
phone
use. The
written
policy
should
clearly
spell
out
prohibited
behaviors,
list
the
consequences
for
engaging
in
the
behavior
(and
don't
forget
to
enforce
the
policy),
and
provide
employees
with
some
incentive
to
comply
with
the
policy.
As
part
of
the
implementation
of
the
policy,
employers
should
engage
in
a
series
of
communications
with
their
Continue Reading...
|
|
A Case of the Cyber Mondays
|
11/25/2011
|
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
|
11/18/2011
|
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?
|
|
A Salute to our Veterans
|
11/11/2011
|
By: Donald Berner
|
Happy
Veteran's
Day
to
all
those
who served.
For
employers,
Veteran's
Day
is a
great
time
to
reflect
on
your
employment
policies
and
practices
to
ensure
compliance
with
the
Uniformed
Services
Employment
and Reemployment
Rights
Act
(USERRA). The
basic
gist is
that
individuals
returning to
an
employer
after engaging
in
military service
are
entitled
to
reemployment
as
if
the
individual
had
never
left employment. In
addition,
USERRA
provides those
individuals
with
some
protection
of
their
benefits
and
compensation
levels
during
this
time
of
military
leave.
For
more
reading
on
the
topic
check
out
this
Department
of
Labor
Fact
Sheet
on
USERRA issues.
|
|
Bad Haircut Leads to Unfair Labor Practice
|
10/28/2011
|
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...
|
|
Cell Phones and SUV's
|
9/13/2011
|
By: Donald Berner
|
Cell
phones
and
driving
are
rumored
to
be
a
bad
combination.
As
you
may
recall,
last
fall
OSHA published
an
initiative
related
to
texting
and
driving.
See
our
blog
entry
here.
Today
served
as
a
reminder
to
me
of
why
OSHA has
undertaken
this
initiative. Nothing
like
an SUV
wandering
all
over
the
road
and
slightly
off
the
road
while
its
driver
operates
a
smart
phone
to
serve
as
such
a
reminder.
Thankfully, the
SUV
was driving
only about
25
mph
in
a
40
mph
zone
since the
driver's
foot
was
also
distracted
by
the
smart
phone
usage
and unable
to
maintain
speed.
For
those
of you
who
have
seen
exactly
this
scene
play
out
on
the
road,
remember
to
make
sure
your
organization
has
a
policy
in
place
regarding
the
usage
of
cell
phones while
driving (or
operating
heavy
machinery). And
if
you
have
a
policy
in
place,
think
about
how
you
might
enforce
such
a
policy.
A
policy
without
enforcement
is
like
having
no
policy
at
all.
The
life
you
save
just
might
be your
own
(or
mine).
|
|
Swimsuit Suit
|
08/26/2011
|
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.
|
|
In Your Facebook--NLRB Scrutinizes Employers' Social Media Policies
|
08/23/2011
|
By: Donald Berner
|
Over
the
past
year,
the
National
Labor
Relations
Board
(NLRB)
has
reviewed
a
number
of
cases
involving
employer
social
media
policies
and/or
employment
terminations
related
to
employee
misconduct
via
a
social
media
outlet.
While
the
NLRB
has decided
a
few
of
those
cases
in
favor
of
the
employer, the
overall
trend
has
not
been
positive
for
employers.
Based
on
the
NLRB's
decisions
to
date,
here
are
a
few
observations that
can
help
employers
stay
out
of
the
NLRB's
cross-hairs.
- Employee
termination
decisions
should
be
carefully
considered
to
ensure
the
employee
is
not
engaged
in
some
sort
of
activity
that
is
protected
by
the
National
Labor
Relations
Act
(NLRA).
The
NLRA protects
the
rights
of
employees
to
engage
in
concerted
activity
that
relates
to
the
terms
and
conditions
of
employment.
Given
the
NLRB's
current
expansive
reading
of
these
rights, if
your
employee
is
complaining
on
Facebook
about
something
that
happened
at
work,
and
the
discussion
involves
co-workers,
you
may
want
to
tread
lightly.
Considering
the
fine
lines
at
play
in
this
area,
employers
would
be
wise
to
consult
with
legal
counsel
before
moving
forward
with
an
employment
termination
related
to a
social
media
post.
- If
you
have
a
social
media
policy,
pull
it
out
and
think
about
it
some
more.
Odds
are
that
the
current
NLRB
will
find
something
wrong
with
it.
Look
carefully
to
make
sure
the
policy
is
not
overly
broad.
If
the policy
heavily
restricts employee
usage
of
social
media and
discourages
employees
from
engaging
in
concerted
activity,
it
probably
is
Continue Reading...
|
|
Old School
|
08/19/2011
|
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:
- Behave
in
a
safe
and
orderly
way.
- Respect
people
and
property.
- Follow
directions.
- 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.
|
|
Confucius Says: He Who Retaliates Digs His Own Grave
|
07/22/2011
|
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...
|
|
Vacation, Schmacation?
|
07/08/2011
|
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
|
07/01/2011
|
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 $95,000,000 Sex Harassment Case
|
06/14/2011
|
By: Donald Berner
|
Most
employers
understand
the
implications
of
sexual
harassment
in
the
workplace
and
have
policies
prohibiting
inappropriate
behavior.
Those
same
employers
usually
have
a
reporting
mechanism
embedded
within
those
anti-harassment
policies. Both
of
these
procedures
are
prudent.
So
what
should
an
employer
do
when
a
complaint
arrives
via
the
procedure
established?
The
answer
is
simple
- go
out
and
investigate
and
respond
to
the
complaint. Too
often
employers
enact
policies
and
procedures
and
then
fail
to
implement
them. The
cost
of
failure can
be
high in
terms
of
monetary value
and
the lost
time
and
energy
in
dealing
with
agency
complaints
and/or
lawsuits that
could
arise down
the
road. One
employer
recently
learned
the lesson
of
follow-up
the
hard
way.
The
allegations
made by
the
plaintiff
in
Alford
v.
Aaron
Rents,
Inc.
are
extreme
and
the
response
by
the
company to
the
intial
complaint appeared
to
be
non-existent.
The
takeaway
from
this
$95,000,000
verdict
against
the
employer
is
to
always
follow-up,
investigate,
and
take
action
on
complaints.
Otherwise
the
cost
could
be
as
extreme
as
the
facts
in
this
case.
For
the
details
click
here for
the
story
published
in
the
St.
Louis
Post
Dispatch.
|
|
Social Media and the NLRB: Where Are the Boundaries of Protected Activity?
|
05/20/2011
|
By: Donald Berner
|
Social
media
(Facebook,
Twitter,
MySpace,
etc.)
issues
have
made
for
interesting
news
so
far
this
year.
The
National
Labor
Relations
Board
(NLRB),
which
has
weighed
in
on
social
media handbook
policy
related
issues,
recently
issued
a
complaint
against
a non-profit
agency after
five
employees
were
discharged
from
their
employment.
The
trouble
started
when
an
employee
posted
a
message
on
her
personal
Facebook
page
related
to
the
agency's
shortcomings
in
serving
its
clients
and
naming
a
co-worker.
In
response
to
the
posting,
several
of
the
employee's
co-workers
engaged
in
a
discussion about
staffing
levels
and
workloads
at
the
agency
via
comments
to
the
initial
Facebook
posting.
When
the
employer discovered
the
discussion,
all five
employees
involved
were discharged for
the
comments.
The
employer
says the
postings harassed
the
named
employee.
As
you
might
guess,
the
NLRB
took
issue with
the discharges
since
the
group
discussion
related
to
working
conditions.
The
NLRB's
position
is
the
five
employees
were
engaged
in
concerted
activity
related
to
the
terms
and
conditions
of
their
employment,
and
such
activity
is
protected
from
interference
(read
discharge)
by
the
employer.
This
complaint
is
yet
another
attempt
by
the
NLRB
to
weigh
in
on
social
media
issues. The
NLRB is
aggressively
policing
employer
social
media
policies
to
ensure
they
are
not
overly
broad
and
restrictive.
This
complaint
furthers
that
effort
by
attempting
to
prohibit
employee
discipline/discharge
for
employees
discussing
workplace
concerns
via
social
media.
As
we
all
saw
throughout
the
Middle
East,
social
media
sites
can
provide
an
easy
means
for
individuals
to
spread
messages
to
a
widespread
and
mainly
anonymous
audience.
The
NLRB's
efforts
in
early
Continue Reading...
|
|
Don't Get Scorched by OSHA
|
05/03/2011
|
By: Donald Berner
|
Summer
is
right
around
the
corner.
For
most
of
us,
the
arrival
of
warmer
weather
presents
opportunities
for
fun
in
the
sun.
There
are,
however,
a
significant
number
of
workers
that
must
work
in
what
are
sure
to
be
extreme
heat
conditions.
For
those
employers
exposing
their
employees
to
these
conditions,
it
is
important
to
take
a
few
mintues
to
consider
workplace
safety
issues
presented
by
the
heat.
Now
is
the
time
to
make
sure
your
employees
are
properly
trained
and
properly
protected
from
this
hazard.
Employers
that
fail
to
address
this
concern
may
end
up
with
a
general
duty
clause
citation
from
OSHA should
a
heat
incident
occur.
For
more
information
check
out
OSHA's
heat
illness
prevent
page
here.
|
|
A Yogi's Guide to Human Resources
|
03/30/2011
|
By: Boyd Byers
|
Major
League
Baseball
opens
the
2011
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
by
watching.”
Effective
managers
and
HR
professionals
know
what’s
going
on
in
their
workplace. So
set
aside
Continue Reading...
|
|
Leave of Absence and the ADA
|
03/24/2011
|
By: Donald Berner
|
As
most
of
you
know,
the
ADA was
amended
a
couple
years
ago
making
it
easier
for
individuals
to
qualify
for
protection
due
to
the
expanded
definition
of
a
disability. One
danger
area
for
employers
is
dealing
with
individuals
needing
a
leave
of
absence
or additional
leave
as
it
relates
to a
situation
that
may
be defined
as
a
disability
under
the
ADA.
This
can
arise
after
FMLA leave
has
been
used
and
expires,
or
for
those
non-FMLA employers/situations
at
the
end
of a
standard leave
of
absence. It
is
at
this
juncture
that
employers
sometimes
find themselves
in
dangerous
waters. What
should
an
employer
do
at
the
end
of
an
approved
leave
of
absence
(FMLA or
otherwise)
when
the
employee
isn't
quite
ready
to
return
to work? Does
the
employee
have
some
expected
return
date
that
is
just
a
few
days
or
weeks
away?
Is
the
return
a
bit
more
uncertain?
How
employers
resolve
this
issue
can
be
the
difference
between
smooth
exit
and
an
EEOC
complaint/lawsuit.
While
just
how
much
leave
is
a
reasonable
accommodation
under
the
ADA can
be unclear,
it
is
clear
that
accommodating an
indefinite
or
uncertain
return
to
work
date
is
not required.
In
addition
to
having
sometimes
murky
factual
information,
some
employers
have
a
leave
policy
with an
automatic employment
termination
provision
that
triggers at
a
certain
point. For
example,
if
an
employee
has
been
on
leave for six
months,
his
or her employment
is
automatically
terminated. The EEOC is
focusing
some
negative
attention
on
this
type
of
leave
of
absence
policy
and
taking
the
position
that
such
a
clause
violates
the
ADA.
Given
this
scrutiny,
it's probably
a
good
idea
to review your
leave
of
absence
Continue Reading...
|
|
Employment References
|
03/15/2011
|
By: Donald Berner
|
What
do
you
do
when
your
former
employee
uses
your
company
as
an
employment reference?
Is
it
your
company
policy
to
say
nothing? Or
is
there
no
policy
in
existence?
It
isn't
very
helpful
for
your
former
employees
if
you
say
nothing.
And
in
most
cases,
you
would
like
to
provide
a
reference
to
help
them
along.
It
becomes
a
bit
more
problematic
when
the
reference
request
is
for
a
former
employee
that
had
issues.
If
you
provide
a
negative
reference,
you
might
find
yourself
the
target
of
a
defamation
or
retaliation
claim.
It
is
always
a
good
idea
to
have
a
consistent
approach
to
providing
references
and
to
assist
with
that
goal
--
having
a
policy
is
ideal.
In
Kansas,
there
is
a
statute
providing
immunity
to
employers
who
provide
references
within
the
scope
of
the
statute.
A
policy
centralizing
employment
references
to
the
HR group
and
tracking
the
terms
of
the
statute
is
one
of
the
better
ways
to
ensure
your
company
is
following
a
consistent
approach
as
well
as
avoiding
potential
litigation
traps.
The
provisions
of
the
reference statute
can
be
found
here.
|
|
Time for Spring Cleaning
|
2/22/2011
|
By: Donald Berner
|
Winter
is
fading. We
are
about
to turn
the calendar
to
March
and
spring
is
just
around
the
corner. And
with
the
arrival
of
spring
comes
spring
cleaning.
In
that
spirit,
take
a
few
minutes
to
think
about
your
record
retention
policies.
Are
you
keeping
things
too
long? Or
are
you
tossing
out
important
items
too
soon?
Every
business
has
different
issues
and
concerns
with
respect
to
record
retention.
If
you
have
a
record
retention
policy,
spend
some
time
making
sure
you
have
trimmed
back
your
collection
of
documents
to
comply
with
your
own
policies.
If
you
don't
have
a
policy,
think
about
what
your
policy
needs
to
be
and
get
started pulling
one together.
And,
if
you
have
a
policy
that
hasn't
been
updated
in
years,
you
probably
should
get
out
the
red
pen
and
see
if
any revisions
or
needed.
Finally,
if
you
have
pending
legal
matters
(charges,
complaints,
investigations,
and/or
lawsuits),
remember
to
comply
with
all
document
retention
requirements
applicable
to
those
matters.
|
|
Social Media and the National Labor Relations Act
|
2/08/11
|
By: Donald Berner
|
The
National
Labor
Relations
Act
(NLRA) is
the
federal
law
most
employers
relate
to
unionization
or
to
union-represented
employees.
On
occasion,
the
NLRA and
its
application
bleed
over
into
workplaces
without
union
representation
present.
For
example,
an
employer
policy
prohibiting
employees
from
discussing
pay
rates
violates
the
NLRA
regardless
of
whether
employees
in
the
workplace
are
union-represented.
In
a
recent
skirmish,
the
National
Labor
Relations
Board
(NLRB),
the
government
agency
responsible
for
enforcing
the
NLRA,
issued
a
complaint
against
an
employer
following
the
termination
of
an
employee
for
violation
of
an
internet/social
media
policy. The
employee
had
made
complaints
about
her
supervisor
and
responded
to
co-worker
questions/comments
on
Facebook.
The
NLRB's complaint was
set
for
hearing
before
an
administrative
law
judge,
but
yesterday the
NLRB and
employer
reached
a
settlement.
This
settlement
leaves
unanswered
the
question
of
how
the
NLRA
will
be
interpreted
and
enforced
in
the
future.
The
NLRB's
filing
of
the
complaint
clearly
signals
a
move
by
the
federal
government
to
extend
protections
to
employees
who
complain
via
Facebook
(or
other
social
media
outlets)
about
workplace
issues
and
concerns.
Employers
should
be
mindful
of
this
development
and
stay
tuned
for
further
action
on
the
part
of
the
NLRB
with
respect
to
employee
discipline
for
these
types
of
violations.
For
more
information
click
here
to
read
the
NLRB press
release.
|
|
NLRB Joins Fray on Facebook Posts
|
11/09/10
|
By: Donald Berner
|
Once
again
the
social
media
beast
rears
its
head
in
the
employment
arena.
Just
when
we
thought
controlling
employee
use
of
Facebook,
Twitter,
MySpace,
and other
blogs
during
working
time
was
the
worst
concern,
the
National
Labor
Relations
Board
(NLRB)
has
entered
the
fray.
In
a
recent
filing,
the
NLRB
took
issue
with
the
firing
of
an
employee
due
to
a
series
of
Facebook
postings
related
to
the
employee's
supervisor.
It
all
started
with
a
customer
complaint
about
the
employee.
The
employee's
supervisor
asked
the
employee
to
prepare
an
incident
report
regarding
the
complaint.
The
employee
requested
a
union
representative
be
present
for
the
meeting,
and the
supervisor allegedly
responded
by threatening the
employee
with
discipline.
The
employee
then
went home
that
afternoon
and
posted
a
series
of
negative
comments
about
the
supervisor
on
Facebook, triggering
a
series
of
co-worker
comments,
and
then
even
more
negative
comments
from
the
employee.
Not
surprisingly,
the
employee
was
discharged
a
few
weeks
later.
The
employee
turned
to
the
NLRB
and
filed
an
unfair
labor
practice
charge.
The
NLRB's
investigation found
the
Facebook
postings
to
be
protected
activity
under
the
National
Labor
Relations
Act
(NLRA).
The
NLRB
also
focused
its
inquiry
on
the
company
policies
prohibiting
employees
from
making
negative
comments
about
the
company
or
its
management
in
internet
postings.
The
NLRB
found
that
this
policy unlawfully
violated employees'
rights
under
the
NLRA.
This
complaint
is
set
for
hearing
in
early
2011.
All
employers
should
stay
tuned
to
this
matter.
Keep
in
mind
that all
employers
are
covered
by
the
NLRA regardless
of
whether
a
unionized
workforce
exists
at
Continue Reading...
|
|
The Great Kansas Smoke Out
|
06/25/2010
|
By: Boyd Byers
|
Don’t
forget
that
the
new
Kansas
smoking
law
becomes
effective
July
1,
2010. As
of
that
date
smoking
will
be
prohibited
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.
The
Kansas
Department
of
Health
and
Environment
has
created
a
special
website
to
provide
compliance
assistance: www.kssmokefree.org. The
website
includes
a
Business
Toolkit,
which
lists
the
following
steps
that
business
should
take
to
get
into
compliance:
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
Continue Reading...
|
|
|
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

|