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A Christmas Story: Tales of Woe and Joy from the Holiday Party
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
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?
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.
For information on upcoming sessions in the 2019 HR Training series, visit www.foulston.com/hrtraining.
A Friendly Notice About Two Weeks' Notice
By: Boyd Byers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In addition, upon providing      Continue Reading...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.                  Remove all ashtrays and matches.

3.                  Post a no smoking sign.

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

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

6.                  Ask any person violating the law to leave.

7. Continue Reading...

The $95,000,000 Sex Harassment Case
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?
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
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
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
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
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
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
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
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
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...

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