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Termination Case Goes South
01/20/2015
By: Donald Berner

A recent decision in a Texas federal court case highlights for employers the dangers of a sloppy termination process.  The basic story is an employer terminated the employment of a 55 year old employee for having a poor attitude and poor work performance.  The employee's story differed in that he claims he met all requirements and his supervisor harassed him.  The parties ended up in litigation and through the discovery process the employer's termination process began to unravel.  The employer's basis for the termination came into doubt when the supervisory team could not identify who made the decision to terminate the employee.  Multiple supervisors pointed in different directions as to the identity of the person making the decision.  In addition, the employer failed to follow its own progressive discipline policy with respect to the employee.  These flaws in the termination process resulted in the court providing the employee the opportunity to present his case to the jury at a trial.  This outcome is a significant loss for the employer and will likely result in the employer choosing to settle the case with the employee rather than go forward to a trial.

Looking back at the facts of the Texas case, there are a couple simple and obvious lessons for other employers.  First, ensure in any termination of employment that you follow your own company policies/procedures.  If you fail to follow your own policies/procedures a court or agency will doubt the truthfulness of story you tell regarding the termination.  Second, make sure your management team is on the same page with the decision-making process.  If      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.

 
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:
 
  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...
 
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:
  1. as repayment of a loan or advance the employer made to the employee during the course of and within the scope of employment;
  2. to recover a payroll overpayment; and
  3. to compensate the employer for the replacement cost or unpaid balance of the cost of the employer's merchandise or uniforms purchased by the employee.

In addition, upon providing      Continue Reading...

 
Can You Make Your Employees Give More Notice Than the Pope?
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...
 
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...

 
Avoid the "Joyless March to the Inevitable"
06/25/2012
By: Boyd Byers
Ken Burns’s documentary The Tenth Inning artfully chronicles the history of Major League Baseball from 1994 (picking up where his original Baseball left off) to 2010. One segment of the film covers baseball’s “steroid era,” including fans’ mixture of ambivalence and cynicism as a chemically enhanced Barry Bonds chased and surpassed Hank Aaron’s all-time home run record in 2006. “The whole thing was a joyless march to the inevitable,” as Bob Costas put it.
 
Costas’s colorful turn of phrase – “joyless march to the inevitable” – stuck in my head. The expression reminds me of a phenomenon I see all too often: employers needlessly putting off the termination of an employee who needs to go. I understand why employers do this—avoiding unpleasantness, procrastination, unfounded hope the employee will “turn it around,” slack managers who neglect to pave the way for a clean discharge, etc. Yet I still ask myself, why do employers do this?   
 
Let’s move on from baseball to another Ken Burns documentary topic, the Civil War. Union General George McClellan was much-maligned for his failure to take action. His critics, including President Lincoln, believed he was too cautious and made excuses for not engaging the enemy when the time was right. McClellan had the chance to capture Confederate General Robert E. Lee’s army and end the war in 1862, but he delayed and let Lee escape, resulting in three more years of bloody conflict. Lincoln famously said that      Continue Reading...
 
What Employers Need to Know about the Kansas "Conscience Act"
05/16/2012
By: Boyd Byers

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

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

 
Employer Fires Entire Workforce Due to Email Gaffe
05/11/2012
By: Boyd Byers

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

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

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

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

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

 

 
Kansas Court Expands Scope of Retaliatory Discharge
05/09/2012
By: Boyd Byers

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

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

 
Texas A&M Fumbles Football Coach Firing
12/02/2011
By: Boyd Byers

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

That’s not news to sports fans in Kansas. Last week KU fired football coach Turner Gill following two lackluster seasons. “There’s only two things in athletics, results and hope,” former KU coach Glen Mason said. “There’s a lot more hope out there than results because results are too hard to get.” But without results or hope, the coach’s days are numbered.  
 
So it was no surprise that Texas A&M fired coach Mike Sherman yesterday. The talent-loaded Aggies started the season with great promise, but skidded to a 6-6 record as a result of several late-game collapses. But the way Texas A&M handled Sherman’s discharge should make any human resources professional cringe.
 
Here’s how it went down, as described by Sherman himself: “I was on a recruiting trip … we were almost in the driveway when I got a call from our athletic director informing me of termination. It was disappointing to me because my family found out before I did, because it was released before I was told. I think we’re better than that.”
 
In Texas A&M’s defense, perhaps there were extenuating circumstances that are not known to the public. But it sure seems that with a little planning the university could have been handled things better that it did. 
 
As any good manager or HR pro knows, discharge meetings should be conducted discreetly and professionally. Deliver the news personally—not over the phone or by email. Choose a time and location      Continue Reading...
 
Feds Find Fault with Firm's Facebook Firings
09/09/2011
By: Boyd Byers

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

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

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

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

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

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

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

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

 
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...

 
Employee In Hog Heaven Over Kansas Supreme Court Ruling
05/20/2011
By: Boyd Byers

Today the Kansas Supreme Court expanded the recognized exceptions to employment at will by ruling that a claim for retaliatory discharge exists when an employee is fired for filing a wage claim under the Kansas Wage Payment Act (KWPA).  The employee, who worked for a pig-farming company in Long Island, Kansas, alleged he was fired for trying to bring home more bacon by filing a complaint with the Kansas Department of Labor (KDOL) claiming the company was not paying him as required by the KWPA.  The company said the allegation was hogwash and asked the court to dismiss the case.  The district court agreed with the company and hamstrung the employee's lawsuit, ruling that even assuming he was fired because he filed a KWPA wage claim, this was not a recognized exception to the employment-at-will rule. 

The employee, perhaps feeling he had been casting pearls before swine in the district court, appealed.  The Kansas Supreme Court explained that Kansas courts permit the common-law tort of retaliatory discharge as a limited exception to the at-will employment doctrine when it is necessary to protect a strongly held state public policy from being undermined.  The Kansas Supreme Court has previously endorsed public policy exceptions in four circumstances: (1) exercising rights under the Kansas Workers’ Compensation Act; (2) filing a claim under the Federal Employers Liability Act; (3) whistleblowing (good-faith reporting of an employer’s or coworker’s violation of the law pertaining to public health, safety, or welfare); and (4) exercising a public employee's First Amendment right to free speech on an issue of public concern.  The Court reasoned that the KWPA—which      Continue Reading...

 
So You've Been Sued -- Now What?
05/12/2011
By: Donald Berner

Earlier this week at the Foulston Siefkin LLP employment law seminar, David Rogers and Teresa Shulda provided employers with an overview of the entire litigation process from demand letter through the administrative process and into a jury trial.  The presentation highlighted how HR professionals are typically involved at each stage of the process.  The session concluded with a discussion of a scenario demonstrating some pitfalls for HR.  Some lessons learned include:

  • The things HR professionals do and say early on in a case can make a huge difference in the outcome;
  • Following the company's policies is key to defending an employment-related claim;
  • Taining HR and Management on the company's policies is critical;
  • Employers need to develop a document preservation process ("litigation hold") and implement the process when a claim is made; and
  • Be cautious when responding to EEOC or state agency inquiries--providing inconsistent or invalid reasons for an employment decision can make it next to impossible to get the case dismissed without a trial. 
 
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...

 
The Monkey, the Cat, and the Army Reservist
03/02/2011
By: Boyd Byers

Yesterday the U.S. Supreme Court ruled that an employer can be liable for employment discrimination based on evidence that a biased supervisor influenced, but did not actually make, an employment decision. The Court, pulling words and phrases from a legalese lexicon that only a lawyer could love, said, “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable ....” Leaving the legal jargon aside, this is sometimes called the “cat’s paw” theory of liability.

The term "cat's paw" theory derives from Aesop's fable about a clever monkey who persuades a gullible cat to retrieve roasting chestnuts from a fire. The monkey gets the chestnuts, and the cat gets nothing but burned paws. The analogy to employment discrimination is when a biased supervisor dupes an unbiased decisionmaker into taking an adverse job action against an employee based on inaccurate, incomplete, or misleading information.     

In this case, Vincent Staub alleged he was fired because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub presented evidence that his two immediate supervisors had an anti-military bias, and that they in turn had convinced the human resources manager to fire him. Staub argued that even though the HR manager, who actually made the decision, was not herself biased, the company could still be held liable for discrimination because she fired Staub based on information the supervisors reported to HR and put in Staub’s personnel file.  

The      Continue Reading...

 
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.

 
Supreme Court Finds in Favor of Fired Fiancee
01/25/2011
By: Boyd Byers

Yesterday the U.S. Supreme Court ruled that a male employee, who alleges he was fired because his fiancee filed a sex discrimination claim against the company that employed them both, may pursue a retaliation claim under Title VII of the Civil Rights Act of 1964. The Court, applying the standard it established in the 2006 case Burlington Northern v. White, said there is no dispute that an employee considering filing a discrimination charge might well be dissuaded if she knew her employer would react by firing her fiancee. (In Burlington, the Court ruled that Title VII retaliation is not limited to actions that affect the terms and conditions of employment, but also covers any actions that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.")  So the female employee who filed the original sex bias claim would have an action for retaliation. The more difficult question, according to the Court, was whether the male employee is a “person aggrieved” within the meaning of Title VII and thus entitled to sue.

The man, Eric Thompson, alleged that his employer, North American Stainless, fired him three weeks after it received notice that Miriam Regalado, his fiancee (now his wife), filed a sex discrimination claim against the company. Both the district court and appeals court ruled against Thompson, reasoning that while Regalado could state a retaliation claim based on Thompson’s firing, Thompson himself could not make a claim under Title VII because he had not engaged in protected activity. 

The Supreme Court      Continue Reading...

 
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...

 


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