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Happy Veteran's Day
11/11/2015
By: Donald Berner

Happy Veteran's Day and a thank you to all who have served or are currently serving!

For employers looking to support veterans, check out the Department of Labor Veterans' Employment and Training Service (VETS) site.  To see more click here.

 
All I Really Need to Know About HR I Learned in Kindergarten?
10/08/2015
By: Boyd Byers

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

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

 
The Lessons of the Recent Ebola Outbreak
11/12/2014
By: Donald Berner

Now that the U.S. has been officially declared Ebola-free, it's a good time to review some key takeaways from the treatment and quarantine of Ebola.  These lessons can be applied in just about any context.  Whether facing a deadly disease like Ebola or a major workplace change that feels like an Ebola outbreak.

1.  Educate and Inform:  Many employee fears can be addressed with timely education and information.  Ebola news coverage was unavoidable and as a result, there seemed to be a disproportionate fear of contracting and transmitting the disease in the U.S.  News coverage aside, statistics don't lie.  The CDC considers the risk of a U.S. outbreak to be very low.  There appear to have been ony two cases of Ebola acquired in the U.S. (both were healthcare workers in Dallas).  Both recovered and have been declared Ebola-free.  The other Ebola cases were individuals that acquired Ebola outside the U.S. 

2.  Identify and Focus on Real Risks:  Nothing incites fear and panic more than misinformation.  The Ebola outbreak gives employers an opportunity to remind employees of more realistic workplace concerns.  Ebola is not easily contracted and infection requires direct contact wtih an Ebola patient while the person is exhibiting symptons.  While the spread of Ebola in the workplace is unlikely, the characteristics of Ebola mimic a much more common plague in the U.S.  The symptoms include fever, headache, muscle pain, weakness, fatigue, diarrhea, vomiting, and stomach pain.  These sound very familiar.  When I hear these symptoms I think flu bug.  Take this as an      Continue Reading...

 
The Impact of Election Day 2014
11/06/2014
By: Donald Berner

The elections of 2014 have come and gone in most jurisdictions (there are some runoff elections still pending).  The results for Washington will be a divided government with Republicans holding the House and Senate and Democrats holding the White House.  How this will play out in the next two years is anyone's guess.  The most likely obvious impact will be the need for both sides to compromise to move legislation forward.  This should hold the pace of dramatic change down quite a bit.  Here are a few things to keep an eye on:

1.  Immigration reform efforts might be one of the first testing grounds for this new relationship.  President Obama has vowed to take action via Executive Order while Congress seems to bristle at the idea.  Both sides seem to be preparing to "visit" about the issues.  This might be the year we see comprehensive immigration reform move forward.  Remember several years ago the Senate passed a comprehensive reform bill. 

2.  Administrative agencies continuing to push forward.  Over the last several years the Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration and the Equal Employment Opportunity Commission have all pushed forward with a strong regulatory agenda.  These agencies are able to change the course and direction of labor and employment law as they manage enforcement of existing laws and regulations. 

3. With the likey continuation of agency activity expect to see Congress increase its "oversight" of these agencies.  The push back against the agencies will come via budgetary actions and/or increased hearings and scrutiny of actions.

From a legislative      Continue Reading...

 
A Freaky Non-Compete Non-Sequitur
11/4/2014
By: Donald Berner

Recently, a restaurant made headlines for something other than its food.  A restaurant employee leaked a version of the store's non-compete agreement and the document raised some eyebrows.  Specifically, the leaked document provided that employees would not work at any restaurants within three miles of a store if the other restaurant "derives more than 10% of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches.:  Although there was no discussion about whether the store ever tried to enforce the non-compete agreement, it does raise some interesting questions for employers to consider when it comes to restrictive covenants like a non-compete.

The first question is most likely whether the agreement is enforceable.  Like most legal questions, the answer is "it depends".  In order to reach a more definitive answer there are a number of questions to ask.  In what state was the store located?  In what state is the dispute arising?  Was it a delivery driver, food preparation staff, hostess, waitress, or store manager that signed the agreement?  The answers to these types of questions can make a big difference and can determine whether the agreement is enforceable.

Another common question related to a non-compete agreement is why?  Employees who are asked to sign non-compete agreements frequenly ask employers why such an agreement is necessary.  A court considering enforcement of a non-compete is likely to wonder the same thing.  While employer responses may vary, typcially the goal is to protect confidential information, trade secrets, customer lists, etc.  The application of the non-compete to the types of concerns can vary dramatically depending on the employee and the specific position.  Employers should      Continue Reading...

 
Royals, Royals, Royals
10/16/2014
By: Boyd Byers

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

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

Professional baseball is not just a game; it’s big business. And the general manager (GM) is the central figure in putting together coaches and players to create a successful team.
                                                           
The GM is hired by and reports to the owners. Working together with ownership, the GM is responsible for all personnel decisions, such as which coaches and players to hire and fire. Gleaning information from scouts and coaches, the GM decides which players to draft, trade for, pursue in free agency, or re-sign. The GM then must negotiate salaries and contract terms. Once players are signed,      Continue Reading...
 
What's in a Color???
02/12/2014
By: Donald Berner

A pink hard hat.  Completely harmless on its own, but let's put the pink hat in context.  A pink hard hat is provided to a female field service representative.  The field rep frequently visits work sites and needs to wear PPE, including a hard hat.  She works in a heavily male industry and is one of the few females working in the field.  The pink hard hat is said to be a sign of "inclusion" making the field rep "part of the team" since it symbolizes her acceptance by the male employees in the field.  She's told that only a few of the office staff (also female) have pink hard hats and she is lucky to have one.

So what's in a color?  The color of this hard hat is not just coincidence.  It is gender stereotyping in action.  Stereotyping is nothing new; it is an age-old way for people to categorize information.  Stereotypes are not inherently negative or illegal -- in fact, there are positive associations that can be made.  With that said, employers should be extremely wary of any sort of mass generalizations.  Stereotypes can cover the entire spectrum ranging from gender, age, race, religion, marital status, sexual orientation, national origin and these sort of biases can be especially costly in the workplace. 

Stereotyping can lead to a variety of harms including poor morale, retention difficulty, lost productivity and even litigation.  At its core, stereotyping leads to the creating of factions with the workplace thus undermining a cohesive work environment.  As      Continue Reading...

 
Hidden Bias Revisited
01/31/2014
By: Boyd Byers

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

 
Motivating Your Workforce
01/22/2014
By: Donald Berner

One role of the human resources staff is to assist the leadership team with all things related to employees.  A lot of times you are called upon to take part in unpleasant situations or tasks.  As a result, the human resources team is often looked upon as a negative force.  There are other areas in which HR can provide the leadership team with some coaching.  One of these areas is employee motivation.  I read an interesting story related to employee motivation and approaches of various business executives.  When you have a few minutes it is a good read.  Click here for the story. 

 
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.

 
Exorcise "Ghost Policies" from Your Employee Handbook
10/24/2013
By: Boyd Byers

Is your employee handbook or policy manual haunted by shadowy policies and provisions that are treated as if they aren’t even there? Such “ghost policies” can creep into a handbook in any number of ways. They may be relics of the past that once lived useful lives—the legacy of long-ago-departed HR managers—their original purpose now unknown. They may be more-recent additions that never caught on. Or they may simply be the result of error (not yours, of course).

You should be afraid—be very afraid—of ghost policies. Left floating in your handbook, they can give rise to legal claims or liability.        
 
‘Dord’: A Ghost Word
 
What is dord? According to the second edition of Webster’s New International Dictionary, it’s a noun that means density, as used in physics and chemistry. But it was never a real word. Dord is what lexicographers call a “ghost word”—a word that comes into use or gets published because of misinterpretation, misreading, typographical or linguistic confusion, or other error.
 
So how did the non-existent word dord end up in the dictionary? In the first edition of Webster’s, entries for abbreviations and words were intermingled. But in the second edition, abbreviations were moved to a separate section at the back of the book. An editor created a card with the notation “D or d,      Continue Reading...
 
Gaga Case Goes Bye-Bye
10/22/2013
By: Boyd Byers

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

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

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

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

 
New Affirmative Action Rules for Government Contractors
10/16/2013
By: Boyd Byers
Federal contractors and subcontractors now must adopt quantifiable goals for the employment of individuals with disabilities and protected veterans, according to new regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs. The new Rehabilitation Act regulations require contractors to establish a “utilization goal” of having 7 percent of their workforce be comprised of persons with disabilities. Similarly, the new regulations under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) require contractors to establish a “benchmark” for hiring veterans. Contractors may either use the national percentage of veterans in the civilian labor force, which currently stands at 8 percent, or develop their own hiring benchmark based on factors listed in the regulations.
Both sets of new regulations point out that the respective utilization goals and benchmarks are neither rigid quotas, nor are they floors or ceilings on the hiring and employment of individuals with disabilities or protected veterans. A contractor’s failure to meet these metrics, however, will invite government scrutiny into the adequacy of its affirmative efforts to recruit and employ members of these protected classes.
In addition to these new metrics, the regulations impose additional data collection, self-identification, and other requirements on contractors. For example, contractors now must collect and retain data regarding the total number of job openings and jobs filled; the total number of job applicants and the number of applicants known to have disabilities or to be veterans;      Continue Reading...
 
Undocumented Workers and Criminal Indictments
10/14/2013
By: Donald Berner

It is never good when the federal government seeks to criminally indict your company or one of your management team in the context of hiring undocumented workers.  In my experience, this privilege is reserved for those that have gone above and beyond in their efforts to ignore the law.  In a recent case from northeast Kansas a restaurant owner was indicted for his efforts to employ undocumented workers.  His troubles began when the Department of Homeland Security (DHS) sought to review his I-9 forms and found a number of employees without completed I-9 forms.  When DHS instructed him to correct the problem and issued a fine, he ignored the requirement.  Making matters worse, DHS found that the restaurant owner was paying workers in cash and providing them with housing.  These abuses led to the eventual criminal indictment.  While this isn't the only set of circumstances that can lead to a criminal indictment, it isn't an uncommon fact pattern that leads to that consequence.  Most employers work hard to ensure they are in compliance with federal immigration law.  For those employers, the likelihood of a criminal indictment for minor errors is limited to none.  The key lesson for employers is to ensure you complete I-9 forms for all your employees as a baseline starting point.  Once those forms are completed, periodically audit your I-9 file to ensure you have not made errors on those documents. 

 
Memorable Job Candidates
10/09/2013
By: Boyd Byers

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

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

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

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

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

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

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

 
Court Not Goo-Goo over Gaga—the FLSA Monster Revisited
10/03/2013
By: Boyd Byers

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

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

O’Neil had various responsibilities, such as cleaning Gaga’s hotel room, ensuring Gaga was “hopefully” on time to places, making sure Gaga ate and drank when she needed, and handling Gaga’s extensive luggage—generally twenty bags. According to O’Neil, Gaga would wake her during the night to take out a DVD and replace it with another because Gaga was tired of the movie she was watching.
 
In September, a New York court denied Gaga's motion to dismiss O’Neil’s FLSA claim for unpaid wages for on-call time. The court explained that “on-call time can constitute work and is compensable under the FLSA where the employer restricts an employee’s ability to use the time freely for his or her own benefit.” This includes periods of inactivity that are unpredictable and usually of short duration, as the      Continue Reading...
 
‘Not so fast,’ Kansas AG tells EEOC
08/28/2013
By: Boyd Byers

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

Last year the Equal Employment Opportunity Commission issued controversial enforcement guidance regarding the use of arrest and conviction records in employment decisions. This summer the EEOC put its playbook into action by suing two employers, BMW and Dollar General, for their use of criminal background checks. In response, the Kansas Attorney General (along with the AGs from eight other states) said, “Not so fast!” Well, not literally. And, unlike Lee Corso, they did not say “my friend.” What the AGs actually said, in an open letter to the EEOC, is that the guidance and lawsuits are “misguided” and “a quintessential example of gross federal overreach.”  Boo Yah!
 
Things went from bad to worse for the EEOC two weeks later, when a federal court punted the commission’s lawsuit against another employer based on its use of criminal background checks. The EEOC alleged that the background checks caused a disparate number of African-American and male workers to be disqualified from jobs. But the court threw out the case, calling the EEOC’s analysis “flawed,” “rife with analytical errors,” “laughable,” and “an egregious example of scientific dishonesty." Read the play-by-play below.
 
EEOC game plan
 
In April of last year, the EEOC issued Enforcement Guidance      Continue Reading...
 
Miss Utah and the Equal Pay Act
08/21/2013
By: Boyd Byers

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

'Create education better'

The question: “A recent report shows that in 40 percent of families with children, women are the primary earners, yet they continue to earn less than men. What does this say about society?”
 
Miss Utah’s answer: “I think we can relate this back to education and how we are continuing to try to strive to … [long pause] figure out how to create jobs right now—that is the biggest problem. And, I think, especially the men are, um, seen as the leaders of this and so we need to figure out how to create education better so that we can solve this problem.” Cringe.
 
Predictably, Miss Utah’s epic fail lit up the twitterverse and blogosphere. But she got a chance at Web redemption on the “Today” show a few days later. She told host Matt Lauer that the question was “confusing” to her. So he gave her a do-over. Her new (scripted and rehearsed) answer was far better: “So this is not okay, it needs to be equal pay for equal work, and it's hard enough already to earn a living and it shouldn't be harder just because you're a woman."
 
Miss Utah’s question was prompted by the 50th anniversary of the Equal      Continue Reading...
 
Should You Let Employees Buy and Sell PTO?
06/12/2013
By: Boyd Byers

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

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

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

 
Beware of the Devil in the Details—What Employers Should Do and Need to Know about the Kansas Wage Payment Act Amendment
05/21/2013
By: Boyd Byers

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

Under the KWPA amendment, employers are now authorized to make the following deductions and withholdings.
 
First, upon a signed written agreement between the employer and employee, an employer may deduct or withhold an employee's wages for the following purposes:
 
  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
05/09/2013
By: Donald Berner

In a decision yesterday out of the Court of Appeals for the D.C. Circuit, the NLRB's notice posting requirement was struck down as invalid. For those of you that have been following along since the start, the NLRB issued the poster rule in August of 2011 and then repeatedly delayed enforcement of the rule as litigation popped up in several federal district courts as to the validity of the rule. The rule, in its simplest form, required employers to post a notice containing information about the ability of employees to seek union representation. Click here for more information on the rule. 

In its decision, the Court held that the rule violated an employer's right to free speech. The Court also addressed a provision in the rule related to the tolling of the statute of limitations for filing a charge based on a violation of the poster rule. This provision was also struck down as invalid. For those that like reading court decisions, this particular portion is a bit convoluted, but interesting for reasons beyond the NLRB poster. The tolling arguments touched on some Title VII and ADEA posting issues and tolling principles used by the EEOC. The Court did not specifically rule on the tolling issues beyond the NLRB poster; however, it did highlight and call into question the validity of tolling in that context as well. 

For now the poster rule looks to be on its death bed, but one never knows what appeal may arise or what another Court of Appeals might have      Continue Reading...

 
States Continue to Weigh in on Social Media Access
04/26/2013
By: Donald Berner

State legislatures continue to debate and pass laws restricting employer behaviors with respect to the access to employee/applicant social media accounts. 

At the present time, six states (CA, IL, MI, MD, NM, and UT)  have passed legislation on this topic and there will likely be others in time. The primary focus of the legislation to date has been to prohibit employers from requiring candidates/employees to provide passwords and access to private accounts. Most of the state efforts have not tried to prevent employers from reviewing publicly available items published via social media. 

This trend is likely to continue and employers with multi-state operations should be paying attention to these developing statutory enactments. Furthermore, even if you are in a state that doesn't prohibit you from requiring employees to show you private social media areas, you might consider whether you truly want to engage in that type of behavior. There is a pretty strong element of it just not feeling right. Those are the types of feelings jurors and other fact finders are likely to have as well. In addition, who knows what those private pages/areas are going to teach you. There are plenty of facts that you don't really want to know when considering a candidate/employee and their future with your company.

 

 
Kansas Wage Payment Law Amended--No Foolin'
04/05/13
By: Boyd Byers

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

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

The revisions to the Kansas Wage Payment Act expand the circumstances under which employers may make payroll withholdings or deductions. Upon a signed written agreement between the employer and employee, an employer may deduct or withhold an employee's wages for the following purposes:
  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...

 
Building A Strong Team
04/02/2013
By: Donald Berner

With the arrival of April Fool's Day, baseball season is officially underway. I know for some of you with kids, baseball/softball season has been underway for quite some time.

I read an interesting blog posting yesterday talking about timeless leadership lessons from baseball. I thought I would pass along some of the more pertinent HR-related points here, although all of the nine items listed in the original posting are good tidbits to consider. Here are the HR-related points:  

  • Measure everything important. Good decisions come from gathering and reviewing good data. Take advantage of your electronic information systems to track and analyze information related to employee performance. This is a key step to fielding a great team at your company.
  • Team versus superstar. Make sure your team is solid from the top to the bottom of your roster. Having great employees surrounded by mediocre employees isn't nearly as effective as having good employees across the board. Make sure to focus your efforts to develop talent across the board.
  • Team chemistry rules. A cohesive team is always better than a team fighting amongst itself. Sometimes you just have to make a move purely to fix the overall workplace chemistry. Ignore this issue at your own peril.

To read the full version of the article click here.  It's a short read and makes some great points about leadership.

 
Immigration Reform Still Being Discussed
04/01/2013
By: Donald Berner

I saw a news story last night about the AFL-CIO (union federation) and the U.S. Chamber of Commerce striking a compromise deal related to guest worker type programs. The gist of the story is that these two adversaries have reached an agreement on how to bring in temporary workers, which is expected to be a big part of any immigration reform legislation. This agreement is a big step forward in the overall effort to create a comprehensive immigration reform package. This agreement may signal a push is underway to finalize the legislative package to bring immigration reform to the top of the legislative agenda in Washington.

 
Beware of Your Job Descriptions
03/28/2013
By: Donald Berner

Every so often we are given a gentle reminder to pay close attention to the job descriptions in place at our companies.

In a recent Americans with Disabilities Act (ADA) case from Maryland, the employer failed to obtain summary judgment because of the essential functions listed in the employee's job description. This means the plaintiff gets to present his case to the jury.

The key issue revolved around whether having a commercial drivers license was an essential function of the supervisory position held by the plaintiff. The job description listed the commercial drivers license as a preference for the supervisor, as opposed to a required item in the basic driver job description. This small difference is what led to the employer ending up in what is now a pretty tough spot. 

So make sure you look at your job descriptions and carefully weigh the use of "preferred" versus "required."

 
Get Back to Work: The Telecommuting Debate
03/18/2013
By: Donald Berner

Recently, Melissa Mayer reignited the telecommuting debate when an internal Yahoo! memorandum leaked.  Starting in June, Yahoo! employees with remote working arrangements must physically report to company offices.  But, Yahoo! isn’t the only company rolling back the telecommuting red carpet.  Best Buy also announced the end of its ROWE (Results-Only Work Environment) program.  Most corporate Best Buy employees will now have to report to the company’s headquarters in Richfield, Minnesota.

Is this the start of a new trend or merely a couple companies changing course? The Wall Street Journal reported that more Americans are working from home than ever before. About 9.4% of U.S. workers worked at home at least one day per week in 2010, compared with 7% in 1997, according to a Census Bureau report. So, what is an employer to do? Before changing your company’s course, here are a few considerations.
 
Offering telecommuting can help employers attract and retain talent.  Certain segments of the workforce value the flexibility provided by telecommuting and such an arrangement can be a valuable recruiting tool.  Before wooing employees with promises of work-life balance bliss, carefully consider whether you have the tools in place to effectively manage performance of employees who work remotely. Evaluate each job and the employee on an individual basis.  Telecommuting is not the answer for every employee or every employer.
 
Finally,      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...
 
USCIS Issues New Version of I-9 Form
03/09/2013
By: Donald Berner

The USCIS released a new version of the I-9 on March 8, 2013. Employers should begin using the new I-9 form immediately. The old version of the form can continue to be used until May 7, 2013. 

The new I-9 form contains very little in the way of new information employers are required to collect from employees. The primary difference in the new form is the inclusion of email and phone number boxes for the employees in Section 1. While the form itself doesn't designate these boxes as optional, the instructions to the new form reflect that these two boxes are not required. The employee can choose to provide the contact data or simply put N/A in those boxes. 

The real impact of the new look I-9 is the layout. Instead of cramming all the required information into one single page, the employee portion is now one page and the employer portion is now a second page. This allows the form to make it much clearer where data is to be recorded in each area of the form. This change is likely to reduce the number of I-9 forms filled out with data on the wrong line or incomplete forms. 

You can find the new form on the USCIS website in a downloadable PDF here.

 
Who is the Future of Your Company?
02/14/2013
By: Donald Berner

Every business needs a leader.  Someone must be in charge and make the tough decisions.  The sudden resignation of Pope Benedict (read here) should serve as a reminder for your business to consider its future leaders.  From large businesses to small family owned business the issue of succession planning and leadership training is equally important.  Identifying and grooming those individuals in advance of their need to lead is key to the long-term health of your business.  If you haven't considered training plans and leadership succession in some time, spend a few minutes (or a few hours) on this task over the next month or two.  One never knows when a resignation or situation will arise to trigger your company's need to replace a leader.  Being prepared ahead of time, and having a candidate being groomed for that role, will make that sudden transition much smoother when it comes. 

 
"There Is No I in Team" and Other Coaching Thoughts
01/29/2013
By: Donald Berner

I spend a lot of time either coaching youth sports or hanging out watching youth sports.  It is the nature of the beast when you have three kids at home.  Those experiences remind me that managing kids is a lot like managing employees.  The big difference is you hope employees are a bit more mature and responsible than kids.  As most of you in HR can attest, that isn't necessarily true (as a coach I have seen young players be a lot more mature than their own parents). 

Over the last several months there have been a number of times those parallels between sports teams and workplaces were very apparent.  Without naming the guilty, here are a few stray observations about youth sports that carry over to the HR realm:

  1. No matter how hard you try, you can't cure a personality defect.  Individuals who are moody and grumpy (read: have bad attitudes) usually stay moody and grumpy.  It seems the more you try to draw them out of that mindset the deeper they settle in.  It's time for tough love.  Instead of slipping into the cycle of coaxing better performance from this type of person, make it simple.  Drop the attitude or find a new employer.  In other words, just get rid of the cancer -- cut it out.  If you don't it will spread to your other team members.  Plus you will have a lot more time to focus on your other employees since you won't be wasting a bunch of time on      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...

 
Immigration Reform in 2013?
01/17/2013
By: Donald Berner

Every so often the topic of immigration reform comes to the forefront in Washington. In years past, the debate would rage for periods of time and then the effort would stall out amidst political fighting over various elements of the "reform" needed. There are a wide-ranging number of interest groups fighting for and against various types of reform. What can we expect in 2013?

Considering the last election cycle and the behaviors of certain demographic groups in that cycle, a comprehensive effort to reform the U.S. immigration system is a bit more likely. At least right at this moment. My thought on that only applies if some other hot potato social or economic agenda item does not interfere with, or take priority over, immigration issues. At this point, several things look likely, to include:

  1. An amnesty-style program of some sort for those currently in the country illegally or without status;
  2. Changes to the visa allocation quotas/system to allow those trying to immigrate the right way to get out of the long lines and backlogs created by a shortage of available slots;
  3. The inclusion of a guest-worker type program to allow for lower-skilled workers to come to the U.S. to fill temporary needs for lesser-skilled labor; and
  4. A requirement that employers verify the legal status of workers (read this to mean mandatory E-Verify for all employers).

The idea of immigration reform typically brings out vocal advocates on all sides of the equation. Stay tuned over the next six months as things heat up in      Continue Reading...

 
Biggest Job Interview Blunders
01/16/2013
By: Boyd Byers

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

But these pale in comparison to the “most memorable interview blunders” published by CareerBuilder last week. Each year the company surveys thousands of hiring managers to identify the most-common and most-outlandish mistakes made by job candidates. Here are my favorites from this year’s study.
  • Candidate denied having a cell phone with him . . . even though it was ringing in his briefcase.
  • Candidate asked to be paid “under the table.”
  • Candidate called his wife during the interview to ask what they were having for dinner.
  • Candidate said he would do whatever it takes to get the job done, legal or not.
  • Candidate said he didn’t want the job if he had to work a lot.
  • And, at the top of my list, the candidate who called in sick to her current employer, faking an illness, during the interview.
 You can read the full list here.
 
Wrapping Up 2012 and Launching Into 2013
01/04/2013
By: Donald Berner

Now that 2012 has come to and end and we have all returned to the normal routine, here are a few things we might take some time to consider before moving forward into the new year and getting swallowed up in the new routine:

  • Review your policy materials and make sure they are current and up to date. While you should review your policies to make sure they are in compliance with all legal requirements, this review also should be practical as well. Are your current policies working as intended or are there some that just need a different approach. A little reflection now can allow you to get these cleaned up for 2013 and help avoid the same issues you had in 2012.
  • Take a few minutes to clean up any employee-file-related issues. Are the employee files complete? Have the reviews been done in accordance with your policies? Are the required items contained in the file? On a side note, its always a good idea to audit your I-9 files and make sure all is well with those forms and that any old forms that are no longer required for retention are disposed of properly.
  • Evaluate your safety policies and training. Are we complying with all of the applicable OSHA requirements? Spend a few minutes self-inspecting your operations to make sure you are in compliance. Check the training requirements and conduct any annual training or refresher training that is needed.
 
Things to Watch for in 2013
01/02/2013
By: Donald Berner

Welcome to 2013.  Hopefully everyone is already working hard at sticking to their New Year's Day resolutions. Looking ahead to 2013, here are a few things to keep an eye on this year. It can be tricky predicting the future, but here are a few general themes I expect to get some extra attention in 2013 in the employment law area. For all of the HR types out there, you might spend a little extra time thinking about how these might impact your company.

  • NLRB. Expect the NLRB to remain a very active agency. The NLRB has spent the last few years turning up the heat on employers in a variety of areas. At the end of the day, the NLRB is shifting the law to provide a more union-friendly playing field in representation election. In addition, the NLRB has spent a considerable amount of energy in areas that are primarily non-unionized-employer related (for example social-media issues). This trend is almost certain to continue in 2013 and beyond. Is your workplace a potential target for a union organizing drive? Are your policies over-broad in some way that interferes with protected and concerted activity? If so, some adjustments might be in order.
  • Immigration Reform. An immigration reform measure of some sort is on tap for this four-year political cycle, and it may get done in 2013. President Obama put the deferred action program in place in 2012 to allow certain groups of illegals to gain work authorization      Continue Reading...
 
"I Was Kidnapped" and Other Tall Tales
11/28/2012
By: Boyd Byers

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

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

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

Many less-well-known people have in fact played dead to collect on insurance claims, avoid debts, or escape the law. But would anyone stoop so low as to lie about the death of her child just to get out of work for a few days? If you've been in HR for a      Continue Reading...
 
A “General” Reminder about E-mail
11/15/2012
By: Boyd Byers

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

Unless you’ve been hiding in a cave in Afghanistan, you probably know the story. Retired General David Petraeus quit as CIA director last week when an investigation turned up e-mails exposing his affair with his biographer, Paula Broadwell. Now Marine General John Allen, the top American military commander in Afghanistan, is under scrutiny for a voluminous e-mail exchange with Jill Kelley, a Florida socialite and “volunteer social liaison” to an Air Force base in Tampa. (When I say “voluminous,” I mean 20,000 to 30,000 pages.) The e-mails “go beyond flirtatious and can probably be described safely as suggestive,” according to an anonymous Defense Department official.
 
The discovery of these e-mails was triggered by a prior set of e-mails. Last summer Kelley received several e-mails from an anonymous sender that she perceived as harassing or threatening. So she went to a friend at the FBI and asked him to look into it. While the facts remain murky, the FBI’s investigation apparently revealed that Broadwell had sent anonymous e-mails to Allen, warning him about Kelley, and that Allen had forwarded these to Kelley. And in the course of investigating Broadwell’s and Kelley’s e-mail accounts, the FBI stumbled upon the Petraeus-Broadwell and Allen-Kelley e-mail exchanges. What a tangled Web!
 
Why, you ask, am I re-hashing this      Continue Reading...
 
U.S. Attorney Serves up an Unhappy Meal to Wichita McDonald's Franchise
11/02/2012
By: Donald Berner

On a night when most of the kids in Wichita are going door-to-door dressed in scary costumes declaring trick or treat, the U.S. Attorney's office served up a very scary and unpleasant trick on a local Wichita business. The press release issued by the Immigration and Customs Enforcement agency (ICE) reflects that the business was charged with one felony count for knowingly accepting a fraudulent identification document.

At some point in the past, the employer was made aware of an employee with a bad social security number. The employer followed up by asking for documentation to prove the employee was authorized to work in the U.S. The employee provided a permanent-resident card, and the employer updated the employee's I-9 documentation.

ICE took the position that the employer was aware the permanent-resident card  was not legitimate because of the speed with which the employee obtained the documentation. The ICE press release indicates a plea agreement is in the works, and the company will pay out $400,000 in fines and forfeitures to the federal government as a result of the agreement. 

Read the ICE press release here.

 
Do You Know? Job Protection for Employees Who Experience Domestic Violence
10/31/2012
By: Boyd Byers

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

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

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

 
Another Potential Facebook Casualty
09/17/2012
By: Donald Berner

Most of you know by now that social media websites can be dangerous in the employment context. Apparently, one of the NFL's replacement referees failed to get that memo. Over the weekend, the NFL was forced to replace a referee on a crew after learning of his posts on Facebook highlighting that he was a New Orleans Saints fan. Apparently the postings included photos of the referee in his Saints jersey at a tailgate party. The bad news for the NFL is that this referee was assigned to call the Saints game on Sunday. Nothing like being placed in a position to officiate your team's game. As of today, the NFL has not terminated the referee for this potential bias. Hopefully, the NFL is smart enough to realize this conflict of interest goes beyond just a game involving the Saints, as his decisions in another game could easily benefit the Saints. I would assume the NFL will piece all this together and take appropriate action. Stay tuned to see if this social media dust up includes some further employment action and whether that action leads to some other legal process. 

 
Do You Know? Wage and Benefit Notification
09/12/2012
By: Boyd Byers

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

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

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

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

In      Continue Reading...

 
Half Past the Point of No Return
09/05/2012
By: Boyd Byers

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

  •  How many roads must a man walk down / Before you call him a man? (Bob Dylan, “Blowin’ In the Wind”);
  • There are places I'll remember / All my life, though some have changed.  (John Lennon, “In My Life”);
  • Then I fumbled through my closet for my clothes / And found my cleanest dirty shirt. (Kris Kristofferson, “Sunday Morning Coming Down”);
  • People talking without speaking / People hearing without listening. (Paul Simon, “The Sound of Silence”).
And, of course, the greatest lyrics ever written: 
  • Freedom's just another word for nothin’ left to lose / Nothin’ ain’t worth nothin’ but it's free.  (Kris Kristofferson, “Me and Bobby McGee”).
I recently heard a newer song on the radio with a refrain I couldn’t get out of my head. It went, “It’s only half past the point of no return.” (The song is “Glitter in the Air” by Pink.)
 
I kept thinking about that line all day. It brought to mind the words of writer Pearl Buck: “Every great mistake has a halfway moment, a split second when it can be recalled and perhaps remedied.” And I reflected that it is the decisions made at these crucial moments—at half past the point of no return—that define us as people and organizations.   
 
 
Fluoride, Freakonomics, and Employment Discrimination
08/22/2012
By: Boyd Byers

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

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

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

 
Employer Flunks the Test with Pre-Employment Testing
08/16/2012
By: Donald Berner

The use of pre-employment testing by employers has become more common in recent times. In most cases, the testing is conducted by outside vendors offering these types of services to multiple groups of employers. While these tests seem to be a good idea to most employers, it is important to make sure they pass muster with the various administrative agencies at the federal and state level.

In a recent example of a test gone wrong, the OFCCP took issue with an employer's written testing program. The test had an adverse impact on minority applicants and failed to meet the EEOC's Uniform Guidelines on Employee Selection Procedures.  In this recent case, the OFCCP reached a $550,000 settlement with the employer. Click here for the OFCCP press release.

While having the OFCCP involved might suggest this is only an issue for written tests and government contractors, don't be misled. This is only an OFCCP issue because the problem was uncovered by an OFCCP audit of the employer. The EEOC's requirements in this area apply to all employers. In addition, the selection guidelines apply to all types of pre-employment testing, ranging from written testing to skills testing to strength-and-agility testing.

If your company conducts these types of tests, it is important to ensure there is not an adverse impact on a specific class of individuals. If there is an adverse impact, the employer can still defend the testing measure if the employer can show the test is an accurate predictor of a candidate's ability to perform a job. This is where      Continue Reading...

 
Possible Federal Relief for Employer Protection of Trade Secrets
08/13/2012
By: Donald Berner

Last month a bill was introduced in the U.S. Senate to provide a limited federal cause of action for employer use in protecting a company's trade secrets from misappropriation. The Protecting American Trade Secrets and Innovation Act of 2012 was introduced and referred to the Senate Committee on the Judiciary.

The goal of the bill is to provide a federal cause of action to employers attempting to file litigation to protect a company's trade secrets. As currently structured, the new legislation would provide this cause of action under a limited set of circumstances. The current option for an employer is to bring claims in state courts with the underlying law varying significantly from state to state. This variance in state law can create complications and sometimes make it difficult for companies to effectively defend their confidential information. 

Stay tuned as this bill makes its way through the legislative process.

To track the legislation, click here.

 
Foreign Students and Work Authorization
07/20/2012
By: Donald Berner

One of the more confusing work authorization scenarios I see clients dealing with relates to when a foreign student is authorized to work in the United States.  The default rule is that a student in the U.S. with an F visa (the typical one used by students) is not permitted to work.  Students typically gain the ability to work in limited ways.  A student may gain work authorization via a curricular practical training program (CPT) or via an optional practical training program (OPT).  These programs differ quite a bit.  A student working via CPT will have the ability to work for a limited period of time and for a specific employer as part of a school sponsored training program.  A student working via OPT will have an employment authorization document (EAD) which will allow a much longer period of employment with no specific employer restrictions.  If your company employs a foreign student, make sure you carefully evaluate whether the individual has proper work authorization documents to work for your company and ensure you carefully note the expiration of that work authorization.   

 
Immigration Debate Likely to Continue
07/03/2012
By: Donald Berner

What better time to consider the issue of immigration than on the eve of the 4th of July.  As our nation of immigrants gathers together to celebrate the birth of our nation, the issue of immigration reform should continue to garner attention over the next year.  In the last month, the U.S. Supreme Court upheld the central piece of the controversial Arizona immigration statute and the Obama White House announced an intention not to enforce deportation against a selected group of young illegal aliens.  Both events have sparked significant interest in the issue around the country and should fuel a continued debate over immigration reform.  While the Supreme Court's upholding of the "show me your papers" provision seemed to garner more attention, the enforcement suspension is likely to result in a much larger impact to employers and illegal aliens.  The Department of Homeland Security (DHS) will provide more detail in the coming weeks regarding President Obama's announcement, but the short version is that a status called deferred action will be conferred on those who meet the limited eligibility criteria set forth by DHS.  Once that status is granted, those individuals will be able to apply for and receive work authorization documents.  As DHS publishes the program criteria, there is bound to be a significant amount of attention paid to this issue.  This upcoming debate may provide some momentum for a more comprehensive set of immigration reforms.  For more information on the enforcement suspension click here.

 
Being A Big League HR Manager
06/26/2012
By: Boyd Byers

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

Professional baseball is not just a game; it’s big business. And the general manager (GM) is the central figure in putting together coaches and players to create a successful team.
                                                           
The GM is hired by and reports to the owners. Working together with ownership, the GM is responsible for all personnel decisions, such as which coaches and players to hire and fire. Gleaning information from scouts and coaches, the GM decides which players to draft, trade for, pursue in free agency, or re-sign. The GM then must negotiate salaries and contract terms. Once players are signed, the GM is ultimately in charge of overseeing their development. And, on the back side, the GM decides when to cut or trade under-performing or overpriced players. All of this, of course, must be done within salary constraints (unless you work for the Yankees). That sounds a lot like what most high-level HR managers do, doesn’t it? 
 
Netflix is a company that embraces the concept of managing its personnel like big-league ballplayers. Netflix tells employees, “We’re a team, not a family.” But not just any team. “We’re like a pro sports team, not a kid’s recreational team.” Accordingly,      Continue Reading...
 
A Yogi's Guide to HR
06/26/2012
By: Boyd Byers

This post originally appeared in March 2011.

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

“You’ve got to be careful if you don’t know where you’re going 'cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).
 
We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there.
“It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices and take advantage of what others have already figured out. Join a professional organization, go to seminars, and talk to contemporaries at other companies. If you need help deciding how to deal with a dilemma or improve your policies and procedures, confer with an experienced employment lawyer or HR consultant—chances are they’ve seen it and done it all before.
“You can observe a lot      Continue Reading...
 
Avoid the "Joyless March to the Inevitable"
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...
 
The Power of Apology: An Umpire's Story
06/24/2012
By: Boyd Byers

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

In short, he was very good. But on June 2, 2010, he wasn’t.   
 
That night Joyce was the first-base umpire in a game between the Detroit Tigers and Cleveland Indians. Tigers pitcher Armando Galarraga had a perfect game (no base runners allowed) going with two outs in the ninth inning. The batter hit a weak grounder and was thrown out at first, completing the perfect game.
 
Except that Joyce called the batter safe. Replays showed he was clearly out. The mistake prevented Galarraga from becoming only the 21st pitcher in Major League history, and the first Detroit player in the team’s 110-year history, to throw a perfect game.
 
The initial reaction to Joyce’s blown call was expectedly vitriolic. But what followed was decidedly unexpected and wonderful.   
 
Rather than run from the situation or defiantly defend his error, Joyce met with Galarraga and the media after the game. With tears in his eyes, he earnestly admitted his mistake and apologized. “I just cost the kid a perfect game,” he said. Galarraga was forgiving and told reporters, “Nobody’s perfect.”   
 
In the days that followed, Joyce was praised throughout the sports world for showing accountability and regret. Other players came forward to defend Joyce, and two weeks later he was voted best umpire in Major League Baseball in an ESPN player poll. Joyce and Galarraga later wrote a book      Continue Reading...
 
Honus Wagner and Employee-Privacy Rights
06/23/2012
By: Boyd Byers

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

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

 

 
The "Best" of Bad Bosses
04/25/2012
By: Boyd Byers

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

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

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

 
A Rose by Any Other Name?
04/16/2012
By: Boyd Byers

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

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

 
EEOC Says High School Diploma Requirement May Violate ADA
04/09/2012
By: Boyd Byers

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

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

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

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

 
Applicants, Employers, and Social Media: The Plot Thickens
04/03/2012
By: Donald Berner

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to      Continue Reading...

 
Employment Law Seminar
02/20/2012
By: Boyd Byers

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

The keynote speaker is David K. Fram, Director of ADA and EEO Services for the National Employment Law Institute. Mr. Fram previously served as Policy Attorney at the EEOC, where he helped formulate the federal guidelines implementing the ADA.
 
Over 600 people attended last year's seminar. Space is limited. For more information or to register, go to www.foulston.com/employmentseminar.
 
Beware of Cupid in the Cubicles
02/07/2012
By: Boyd Byers

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

  • An employee sued after her co-worker harassed her, including sending her a card that said, “On Valentine’s Day, remember – candy is dandy . . . but sex won’t rot your teeth!  So what do you say!”
  • A male employee made a harassment claim over his female supervisor’s conduct, which included an incident on February 12 where the supervisor held a bottle of pink lotion, saying she was “going to have a great time on Valentine’s Day,” and asking the employee if he would like to try some of the lotion.
  • An employee claimed harassment regarding her supervisor’s conduct, which included giving her a Valentine’s Day card with a $50 bill in it. 
  • An employee sued after her supervisor posted a Valentine’s Day message to her in the town newspaper, which stated in part, “Dear Sgt., Spring is right around the corner, just like me. Look outside, see a Robin by the tree. Love Azalea.” 
  • A female employee claimed a male co-worker harassed her, starting when he gave her a Valentine’s Day card. The male co-worker told the female employee that he stayed up until 2:00 a.m. trying to decide what to write on      Continue Reading...
 
Take Time To Make Good Decisions
01/31/2012
By: Boyd Byers

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

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

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

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

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

 
Happiness is a Matter of Perspective
1/23/2012
By: Donald Berner

Are your employees happy?  In the not too distant past that was a question most HR professionals cared a lot about.  Remember when employee retention was a big concern?  In today's employment environment, this topic seems to have fallen off the radar screen.  With unemployment still hovering at a level most would consider too high, the happiness of the workforce seems to be a forgotten concept.  The conventional wisdom is that employees aren't likely to job hop when jobs seem a bit hard to find.  While all this might be true, employers would be wise to keep employee morale in mind.  As we are all painfully aware, the economy runs in cycles.  Who knows how far away the next cycle of low unemployment and tight labor markets might be.  In addition to employee retention, employee morale is tied to employee productivity.  Keeping employees satisfied and working hard is the key to any employer's success.

It seems that employers in Wichita might be keeping an eye on this particular issue.  In a survey released by careerbliss.com, Wichita was tabbed as the 6th happiest city for work in the U.S.  Our neighbors in Kansas City managed to end up ranked 16th on the list of unhappiest cities for work in the U.S.  Click here to see more of the survey information. 

 
HR Resolutions for 2012
01/13/2012
By: Boyd Byers

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

 
Watch Out For HR Ninjas
12/09/2011
By: Boyd Byers

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

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

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

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

 
Texas A&M Fumbles Football Coach Firing
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...
 
A Case of the Cyber Mondays
11/25/2011
By: Boyd Byers

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

Employers need to think about how to deal with employees who use company time and equipment for non-work purposes, including online shopping. The survey shows that twenty-two percent of employers have fired an employee for non-work-related Internet usage, and seven percent have fired an employee specifically for online holiday shopping. 
 
Some employers have a no-tolerance standard for personal internet use on company computers and smart phones. Others employers allow employees to use their work computers for shopping and other personal use, as long as it’s done off the clock. Still others allow reasonable personal use, even during work time. 
 
Every employer needs to decide which approach is best for its workplace. But whatever the rules, they should be clearly written and communicated to employees. These rules then need to be evenly and uniformly enforced. So this holiday season, take time to assess your company’s electronic communication policy, the way it’s communicated to employees, and the way it’s enforced. Reminding employees about the rules--before one of them gets into trouble for buying a Chia Pet for Aunt LuLu when she was supposed to be working--is a great holiday gift. 
 
Lessons from Penn State
11/18/2011
By: Boyd Byers

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

Does your company have an appropriate written anti-harassment policy? Does it specify how and to whom reports of sexual harassment should be reported? Further, does it mandate reporting by any employee who experiences or observes workplace harassment? A policy that imposes an affirmative obligation on employees to report any witnessed harassment is likely to help deter and increase detection of improper conduct.
 
A policy alone is not enough, of course. Do you regularly (at least annually) communicate the policy and provide training to all employees? Do you provide professional training to managers on how to recognize harassment and handle employee complaints?  Are you confident that every last manager in your organization would do the right thing if confronted with evidence or allegations of harassment?  Are your human resources professionals well-versed in how to investigate and follow-up on harassment reports, and the right way to document all of this? Does your organization, starting at the top level of management, foster a culture of zero-tolerance of sexual harassment?     
 
If your answer to any of these questions      Continue Reading...
 
A Salute to our Veterans
11/11/2011
By: Donald Berner

Happy Veteran's Day to all those who served.  For employers, Veteran's Day is a great time to reflect on your employment policies and practices to ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The basic gist is that individuals returning to an employer after engaging in military service are entitled to reemployment as if the individual had never left employment.  In addition, USERRA provides those individuals with some protection of their benefits and compensation levels during this time of military leave.  

For more reading on the topic check out this Department of Labor Fact Sheet on USERRA issues.

 
State Tech Chief Resigns After Getting Third Degree About His Degree
11/11/2011
By: Boyd Byers

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

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

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

 
More Bad News About I-9's
11/8/2011
By: Donald Berner

Immigration and Customs Enforcement (ICE) is continuing to issue Notices of Inspection (NOI) to employers across the country.  These ICE NOIs require employers to provide I-9 forms and various payroll related information to ICE.  The increase in these type of inspections being conducted by ICE is significant.  Over the last three to four years, the number of inspections has more than tripled.  For employers getting a NOI, it can be a costly experience.  While some of the inspections may be being conducted on a random basis, the more likely sceenario is that ICE has targeted the employer based on tips, complaints, or leads developed from a variety of sources. 

Employers should respond carefully upon receiving an NOI from ICE.  The real preventative medicine for employers is to conduct an audit of your existing I-9 documents as well as review your I-9 completion practices to ensure the documentation is all in order.  In addition, employers should consider the pros and cons of signing up to participate in the E-Verify system as part of the employer's comprehensive compliance strategy.

 
Its Just Not Fair: Some Random Musings on Employee Evaluations
11/1/2011
By: Donald Berner

All of us have experienced an employee evaluation at some point in our lives.  For those of you lucky enough to get to evaluate others in your workplace, this posting may be of some assistance.  We will skip over all the discussion of forms and processes and focus today on the actual work of evaluating (those other things are very important, so promise to think about them later).

For those of you with kids in school, their lives are full of evaluations.  On the academic front, most of you received report cards recently and attended a parent-teacher conference to hear all about the good and bad.  On the athletic front, your kids may be trying out for school sports teams or club teams in their sports of interest.  One common thread in those athletic teams is that coaches are trying to pull together the best mix of talent to form a team.  In theory, this is what your employee evaluation process is all about (and your hiring process).  Just like with a sports team, you are constantly working on developing your employees and increasing their skills or correcting their weaknesses to strengthen your business and build a good workplace team.  Here are some things to consider with respect to how you evaluate your employees:

  • Evaluate the performance in the position and not the person.  It doesn't matter how much you like or dislike the person on a personal level as you conduct your evaluation.  What matters is how the person performs in the assigned role and how that person helps the      Continue Reading...
 
Bad Haircut Leads to Unfair Labor Practice
10/28/2011
By: Boyd Byers

What’s the difference between a good haircut and a bad haircut?  Two weeks.

That’s funny.  But one employer wasn’t laughing when an employee’s botched haircut started a chain of events that resulted in a finding that it violated the National Labor Relations Act by firing the employee for engaging in protected concerted activity.  
 
So how did a bad haircut lead to an unfair labor practice charge and a federal lawsuit? 
 
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility.  Embarrassed by a “terrible haircut” and unable to “do anything” with her heir, Wright-Gore began wearing a hat to work.  After a week, she was told the hat violated the dress code, so she needed to remove the hat or go home.  Wright-Gore protested that other employees were allowed to wear hats, refused to remove her hat, and left for the day.
 
She returned the next day, which, as fate would have it, was Halloween.  Employees were allowed to wear costumes.  She dressed as a “race-car fan,” and her costume included—you guessed it—a hat.  She was told to remove the hat, which she did, but she was written up for insubordination.
 
Over the next few days, Wright-Gore observed that other employees were wearing hats and displaying tattoos, in violation of the dress code, without consequence.  So she began talking to      Continue Reading...
 
Beware of Black Swans
10/07/2011
By: Boyd Byers

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

Philosopher Nassim Nicholas Taleb expanded on this idea and developed it into a theory, which he described in his 2007 bestselling book, The Black Swan: The Impact of the Highly Improbable.  A black swan, as described by Taleb, is an unexpected, high-impact event that comes as a surprise to the observer, but which the observer rationalizes afterwards as if it could have been expected.  World War I, the Internet, and the September 11 terrorist attacks are classic examples of black swan events, according to Taleb.
 
Taleb cautions that businesses need to be prepared for black swan events.  He wrote in 2007 that banks and trading firms had exposed themselves to massive losses beyond the predictions of their limited, and thus defective, models.  The events of 2008 seem to have proven him right.  
 
“Black Swan,” the movie, is a 2010 psychological thriller starring Natalie Portman as a ballet dancer in a production of “Swan Lake.”  The film received critical praise, including several Academy Award nominations, and Portman won the Best Actress Oscar      Continue Reading...
 
The Worst Boss Ever?
10-03-2011
By: Boyd Byers

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

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

New Contest – Guess The Next Cashier Who Will Be Fired!!! 
To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Write their name [the person who will be fired], today’s date, today’s time, and your name.  Seal it in an envelope and give it to the manager to put in my envelope.
Here’s how the game will work:  We are doubling our secret-shopper efforts, and your store will be visited during the day and at night several times a week.  Secret shoppers will be looking for cashiers wearing a hat, talking on a cell phone, not wearing a QC Mart shirt, having someone hanging around/behind the counter, and/or a personal car parked by the pumps after 7 p.m., among other things.
If the name in your envelope has the right answer, you will win $10 CASH.  Only one winner per firing      Continue Reading...
 
Application Mistakes Revisited
09/30/2011
By: Boyd Byers

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

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

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

 
Avoid Knee-Jerk Reactions -- Have A Training Plan
9/20/2011
By: Donald Berner

One of the things I commonly find myself talking about with clients is training.  There are a wide range of reasons in the employment law context to provide training to your employees.  For those focused on safety related issues, the OSHA standards contain a variety of standards that require employees to be trained with respect to a particular hazard.  Providing this training ensures compliance with those various OSHA standards.  For those focused on general employee issues, providing training with respect to your organization's HR policies is a key component in managing the workforce.  More specifically, training your employees about the organization's harassment policy is a key cornerstone to defending harassment claims. 

For all of you Chiefs fans out there (disclaimer: I am not one), this past weekend provided a reminder of another type of training that might be important.  The season-ending knee injury to running back Jamaal Charles leaves the Chiefs without much of an option for the position.  Don't let your organization suffer this same fate if one of your key performers becomes unable to work (whether by illness, injury, or resignation).  A little cross-training now can save you a lot of trouble later if this should become an issue.

 
Listing Your Dog as A Reference, and Other Common Résumé Mistakes
09/16/2011
By: Boyd Byers

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

- Listed her dog as a reference. 

- Gave contact email address of "shakinmybootie." 

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

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

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

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

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

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

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

 
Feds Find Fault with Firm's Facebook Firings
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)

 
DOL to Update Child Labor Regulations
9/06/2011
By: Donald Berner

The Department of Labor (DOL) announced a plan to update the hazardous occupation orders with respect to agriculture-related jobs.  This proposed update will restrict young workers from performing certain jobs in agricultural businesses.  A few of the proposed changes include the prevention of workers under the age of eighteen from working in grain elevators, feed lots, and stockyard type environments, as well as preventing workers under sixteen from operating power-driven equipment.  For more about the restricitons and further details on the proposed updates click here.   

 
Dealing with Jane and Johnny Drama
09/01/2011
By: Boyd Byers

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

 
Swimsuit Suit
08/26/2011
By: Boyd Byers

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

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

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

Read the full story here.

 
In Your Facebook--NLRB Scrutinizes Employers' Social Media Policies
08/23/2011
By: Donald Berner

Over the past year, the National Labor Relations Board (NLRB) has reviewed a number of cases involving employer social media policies and/or employment terminations related to employee misconduct via a social media outlet.  While the NLRB has decided a few of those cases in favor of the employer, the overall trend has not been positive for employers.  Based on the NLRB's decisions to date, here are a few observations that can help employers stay out of the NLRB's cross-hairs.  

  • Employee termination decisions should be carefully considered to ensure the employee is not engaged in some sort of activity that is protected by the National Labor Relations Act (NLRA).  The NLRA protects the rights of employees to engage in concerted activity that relates to the terms and conditions of employment.  Given the NLRB's current expansive reading of these rights, if your employee is complaining on Facebook about something that happened at work, and the discussion involves co-workers, you may want to tread lightly.  Considering the fine lines at play in this area, employers would be wise to consult with legal counsel before moving forward with an employment termination related to a social media post.
  • If you have a social media policy, pull it out and think about it some more.  Odds are that the current NLRB will find something wrong with it.  Look carefully to make sure the policy is not overly broad.  If the policy heavily restricts employee usage of social media and discourages employees from engaging in concerted activity, it probably is      Continue Reading...
 
Old School
08/19/2011
By: Boyd Byers

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

Dad used to keep in his office an old laminated sign titled “School Rules.”  There are only four: 
 
  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.
 
Immigration Scam Artists
8/9/2011
By: Donald Berner

Earlier this summer several federal government agencies announced an initiative targeting immigration services scams.  While this initiative makes reference to protecting innocent and unsuspecting immigrants, the same can be said for some employers.  These immigration services sometimes convince employers they are capable of solving their work authorization problems for some of their employees.  In most circumstances, the employer tries to help these employees and can be duped by these scam artists just like individual immigrants.  If your company is approached by a service promising to provide you with "legal" workers, remember the old adage:  If it sounds too good to be true, it probably isn't true.  If this happens in  your workplace, you should consult your own legal counsel to ensure you are not unwittingly being put into a risky position. For text of the news release click here.

 
¿Es Legal Tener Reglas Que Requieren Hablar Solo Ingles en el Trabajo?
08/05/2011
By: Boyd Byers

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

Given these numbers, it’s not surprising that Kansas employers are more-frequently facing workplace language issues.  Problems may arise when two or more workers communicate in a language other than English, and customers or other employees can overhear but cannot understand these conversations.  In response, some employers have implemented English-only rules to ensure that customers do not feel uncomfortable and/or to avoid feelings of alienation or hostility among co-workers.  
 
But, to pass legal muster, English-only rules must be job-related and consistent with business necessity.  The EEOC takes a restrictive view on English-only rules.  Generally, employees’ concern that other employees are talking about them behind their back is not enough to justify such a rule. In addition, employers may not rely on coworker, customer, or client discomfort or preference as a justification or defense to discrimination based on race or national origin. 
 
According to the EEOC, an English-only rule is justified by business necessity if it is needed for an employer to operate safely or efficiently.  Below are some situations in which the EEOC says business necessity would justify an English-only rule:
 
The Great Imposter
07/29/2011
By: Boyd Byers
Barry Bremen, known to sports fans as The Great Imposter, died on June 30. While the name may not be familiar, you may remember his gate-crashing pranks during the late 1970s and 1980s.
 
Bremen first made headlines in 1979 when he donned a Kansas City Kings uniform, snuck onto the floor, and participated in pre-game warm-ups at the NBA All-Star Game. Later that year, clad in a New York Yankees uniform, he got on the field and shagged flies for half an hour at the Major League Baseball All-Star game. He nearly made it into the American League team photo before he was caught. 
 
Bremen gained even more notoriety when he posed as a Dallas Cowboys cheerleader. But perhaps his most-famous stunt was crashing the 1985 Emmy Awards and going on stage to accept the Best Supporting Actress award for Hill Street Blues’ Betty Thomas, who was late getting out of her seat.
 
Bremen’s other famous exploits included: sneaking on the course and playing practice rounds at three U.S. Open golf tournaments; dressing as an umpire and participating in the pre-game umpire meeting at the 1980 World Series; and posing as a referee at the 1980 Super Bowl. His fun-loving stunts garnered him an appearance on “The Tonight Show” and a profile in People magazine. 
 
It was obvious Bremen just wanted to have some      Continue Reading...
 
EEOC Discusses Use of Arrest and Conviction Records
07/26/2011
By: Donald Berner

The EEOC recently held a public meeting to discuss the issue of employer usage of arrest and conviction records in making employment decisions.  This meeting may signal a renewed interest in the issue on the part of the EEOC.  With the easy access to information via the internet, the use of criminal background checks is more prevalent which may be the motivation behind the EEOC's public discussion.  

The general EEOC position is that the use of arrest records and/or convictions to take an adverse action without further consideration of the circumstances involved is inappropriate.  In situations where the arrest/conviction is related to activity tied to the job, the use of an arrest record as the basis for adverse action can be justified by an employer.  Stay tuned for further EEOC activity on this topic.

To see the press release regarding the public meeting click here.  For a summary of the EEOC's existing policy guidance on the use of arrest records click here.

 
Confucius Says: He Who Retaliates Digs His Own Grave
07/22/2011
By: Boyd Byers

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

Most employment-protection laws contain anti-retaliation provisions.  And courts are broadly interpreting and applying these provisions.
 
The U.S. Supreme Court has recognized and expanded the right to bring retaliation claims in a series of cases over the past several years.  In January, the Court ruled that Title VII’s anti-retaliation provision covered an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim.  (Supreme Court Finds in Favor of Fired Fiance 01/25/2011)
 
In March, the Court held that the FLSA’s anti-retaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints. 
 
These cases follow prior decisions in the last five years in which the Court ruled that: 
 
·       Title VII’s anti-retaliation clause, which refers to “opposition,” does not require active opposition, but encompasses involuntary participation, such as making statements during an employer’s internal investigation;
 
·       Employees can bring retaliation claims under the ADEA;
 
·       Employees can bring retaliation claims under Section 1981 of Chapter 42 of the      Continue Reading...
 
Vacation, Schmacation?
07/08/2011
By: Boyd Byers

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

Why the disparity?  Cultural differences play a large role.  In addition, because of the poor U.S. economy over the past several years, American workers may not want to risk losing their jobs by being away from work for too long. 
What can employers do to manage their vacation policies, and employees’ use of vacation time, for the benefit of the organization?  Read on.  
 
 
Smoke-free for One Year
07/01/2011
By: Boyd Byers

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

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

2.                  Remove all ashtrays and matches.

3.                  Post a no smoking sign.

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

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

6.                  Ask any person violating the law to leave.

7. Continue Reading...

 
Saab Story
06/24/2011
By: Boyd Byers

Yesterday the Swedish automaker Saab informed its employees that it could not pay them their wages this month because it could not secure short-term funding.  Saab and its parent company said they are in discussions with various parties to obtain financing arrangements.  If Saab does not pay the wages within 10 days, employees have the right under Swedish law to file a demand with a government enforcement agency. 

Unfortunately, similar stories have played out in Kansas over the past several years as a result of the economic downturn.  Companies that employ workers in Kansas should be aware that they are subject to the Kansas Wage Payment Act, which protects wage earners and their wages. 

Under the KWPA, employers must pay their employees all wages due at least once each calendar month, on regular paydays designated in advance.  These paydays cannot be more than 15 days after the end of the pay period.  An employer that fails to pay employees' wages is potentially liable not only for the amount of the unpaid wages, but also for interest and a penalty.  The penalty for willful non-payment of wages is one percent of the unpaid wages per day (except Sundays and holidays), starting the eighth day after the wages were due, up to a maximum of 100% of the unpaid wages.    

If the employing company iteself does not pay the wages, major shareholders, officers, managers, agents, and other persons in charge of the employer's affairs who knowingly permit the employer to engage in a violation of the KWPA can also be held liable for the unpaid wages, interest, and      Continue Reading...

 
The $95,000,000 Sex Harassment Case
06/14/2011
By: Donald Berner

Most employers understand the implications of sexual harassment in the workplace and have policies prohibiting inappropriate behavior.  Those same employers usually have a reporting mechanism embedded within those anti-harassment policies.  Both of these procedures are prudent.  So what should an employer do when a complaint arrives via the procedure established?  The answer is simple - go out and investigate and respond to the complaint.  Too often employers enact policies and procedures and then fail to implement them.  The cost of failure can be high in terms of monetary value and the lost time and energy in dealing with agency complaints and/or lawsuits that could arise down the road.  One employer recently learned the lesson of follow-up the hard way.  The allegations made by the plaintiff in Alford v. Aaron Rents, Inc. are extreme and the response by the company to the intial complaint appeared to be non-existent.  The takeaway from this $95,000,000 verdict against the employer is to always follow-up, investigate, and take action on complaints.  Otherwise the cost could be as extreme as the facts in this case. 

For the details click here for the story published in the St. Louis Post Dispatch.

 
More Bad Job Applicants
06/10/2011
By: Boyd Byers

Later this month the flick Bad Teacher, starring Cameron Diaz, will hit movie screens across the country.  And who can forget Billy Bob Thornton's turn as the title character in Bad Santa, the screwball black comedy produced by the Coen brothers?  Perhaps continuing a trend, potential scripts for Bad Job Applicant are practically writing themselves.

A couple of months ago I wrote about outrageous interview gaffes made by job applicants, as reported by hiring managers in a national survey.  (Click here to read the original post.)  This week one of my favorite guilty pleasure websites, HR Strange But True!, told the real-life tales of several other odd interview experiences.  Click here to read about the intoxicated interviewee, the job seeker with a fishy story about her past jobs, and the overly affectionate applicant

 
KDOL Updates Work Comp Poster
06/03/2011
By: Boyd Byers

We previously gave you the skinny on the Kansas Workers Compensation Reform Act, which went into effect May 15, 2011.  (Read more here.)  The Kansas Department of Labor has since updated its “posting” notice, which the Department’s regulations require all employers covered by state workers compensation laws to post in their workplaces.  The new bi-lingual form (Form K-WC 40 (Rev. 5/11)), which tells employees what to do if an injury occurs on the job, is available for free on the Department’s website here.  Adhering to the regulations’ posting requirement may help employers defeat untimely workers compensation claims.

Kansas employers should also be aware that the KDOL is in the process of updating its workers compensation “Practice and Procedure Guide” to reflect all the changes in the Reform Act.  Stay tuned to Kansas Employment Law Blog; we’ll let you know when this resource becomes available.
 
School's Out -- Employ Carefully
05/27/2011
By: Boyd Byers

Today my kids are at home enjoying their first day of summer vacation.  When I was a teenager, one first-day-of-summer-vacation ritual was repeatedly blasting the song "School's Out" by Alice Cooper for the enjoyment of everyone in town (from a boombox resting on the handlebars of a BMX bike in seventh grade, moving on to the woofers in the trunk of my friend's candy apple red '78 Chevy Nova by the time we were sophomores).  Another, more-constructive rite of summer for many teenagers is working a part-time job.  If your company employs workers under 18, make sure it complies with the sometimes-tricky child labor laws.

Fourteen is the minimum age for most non-agricultural work.  However, youth under 14 may deliver newspapers; perform babysitting or perform minor chores around a private home; perform in radio, television, movie, or theatrical productions; and work in businesses owned by their parents (except in manufacturing, mining, or hazardous jobs). 

Youth 14- and 15-years-old may work outside school hours in certain jobs approved by the Department of Labor, subject to time and hour restrictions.  For example, they cannot work more than 3 hours on a school day or 18 hours in a school week, or more than 8 hours on a non-school day or 40 hours in a non-school week.  And they may not work before 7 a.m. or after 7 p.m., except they may work until 9 p.m. from June 1 through Labor Day.  New regulations that went into effect last summer allow 14- and 15-year-olds to hold jobs not only in the retail, foodservice, and gasoline service industries (as before), but also perform office and clerical work, including in the advertising, banking, and      Continue Reading...

 
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...

 
When Cal LeMon Speaks, HR Professionals Listen
05/17/2011
By: Boyd Byers

Earlier this month Foulston Siefkin LLP hosted its sixteenth annual full-day employment law seminar. One of the highlights was keynote speaker Dr. Cal LeMon, president of Executive Enrichment, Inc.  Dr. LeMon has been designated among the "Ten Best Speakers in America" by the Society of Human Resources Management.  After seeing him in person I can see why.  To see excerpts from Dr. LeMon's presentation, click here.  

Over 600 people attended the seminar (a new record), which was held in both Overland Park and Wichita. Next year's seminar is scheduled for May 3, 2012, in Overland Park and May 8, 2012, in Wichita. 

 
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. 
 
Another Way to Not Get A Job
05/04/2011
By: Boyd Byers

A few weeks ago I discussed a survey in which hiring managers were asked about the most-common, and the most-outrageous, mistakes made by job applicants during interviews.  (Click here to read the original post.)

One reader shared the following story about a job seeker who lost out on a job because of pre-employment misconduct following his interview.  The applicant was professional and well-behaved during the interview process.  But things went south after he received a conditional offer of employment (pursuant to the ADA) and was sent to undergo an off-site medical evaluation (as all persons being hired for this position were required to do).  Upon arrival, the job seeker became belligerent and threatening to the medical staff.  Things were so bad, in fact, that the doctor refused to examine him, instructed him to leave the premises, and called the police.  Needless to say, the conditional offer of employment was withdrawn.

While an extreme example, this story shows how some applicants may be able to hide their true stripes during the formal interview process.  So you need to make sure your hiring process is designed to weed out persons who would not be a good fit for your organization.  I know of several employers who swear that adding one simple step to the applicant screening process has worked wonders for them.  What do they do?  After a job interview, HR or the hiring manager solicits information from the receptionist to get her assessment of the candidate.  If the applicant was rude, disrespectful, condescending, or otherwise unpleasant to the receptionist, then it's a safe bet the applicant is      Continue Reading...

 
How To Not Get A Job
04/15/2011
By: Boyd Byers

What’s the most-outrageous mistake made by a job applicant you’ve interviewed?  Over 2,400 hiring managers were asked that question in a recent nationwide CareerBuilder survey.  Here are some of my favorite responses:

·         Wore a hat that said “Take this job and shove it.”
·         Threw a beer can in the trash can outside the reception office.
·         Ate all the candy in the candy bowl while answering questions. 
 
Hiring managers were also asked about the most-common mistakes candidates make in job interviews. Number one on the list?  Answering cell phone calls or texting during the interview.  This was followed closely by dressing inappropriately, acting disinterested, and appearing arrogant.
 
Do you have any unusual interview experiences you want to share with our Kansas Employment Law Blog readers?  If so, send me an email.     
 
Read the entire report on CareerBuilder.com.
 
 
A Yogi's Guide to Human Resources
03/30/2011
By: Boyd Byers

Major League Baseball opens the 2011 season this week, and I have baseball on my mind.  Which makes me think about the great baseball philosopher, Yogi Berra. Here are some of the most-memorable "Yogi-isms," and what human resources professionals and personnel managers can take away from these pearls of wisdom.

“You’ve got to be careful if you don’t know where you’re going ‘cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).
 
We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there. 
“It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices and take advantage of what others have already figured out. Join a professional organization, go to seminars, and talk to contemporaries at other companies. If you need help deciding how to deal with a dilemma or improve your policies and procedures, confer with an experienced employment lawyer or HR consultant—chances are they’ve seen it and done it all before.  
“You can observe a lot by watching.”  Effective managers and HR professionals know what’s going on in their workplace. So set aside      Continue Reading...
 
Spring Cleaning Part II
03/22/2011
By: Donald Berner

A few weeks ago I wrote about spending some time reviewing your record retention policies and making sure your current files were properly managed (a/k/a throw out some stuff).  Another good task for the spring season is to check your internal posters to make sure you have the current versions in place and have all the required items hanging on the wall.  The posting requirements are driven by both state and federal law, so it is important to make sure you are in compliance with both.  The Department of Labor website provides employers with access to free posters for use in the workplace along with a simple tool to assist you in deciding which posters are necessary.  Click here for the Department of Labor website.  For employers in Kansas click here for access to links to posters required under state law. 

 
How Do You Solve A Problem Like Charlie?
03/11/2011
By: Boyd Byers

Yesterday I blogged about fanciful legal issues you might encounter if the newly unemployed Charlie Sheen were to show up at your doorstep with application in hand.  We were not the only employment lawyers thinking about Charlie.  Click here to read an article that examines Charlie's termination, his resulting lawsuit, and some lessons HR professionals can learn from this tumultuous Tinseltown tale. 

 
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...

 
Run Faster, Jump Higher
3/1/2011
By: Donald Berner

Hardcore football fans know that the NFL combine, which precedes the draft, just took place.  If you have never heard of the combine, it is an annual event that takes place over a very long weekend (about 5 days) where the top prospects from college football are tested, measured, and interviewed.  Think of it as a massive job fair with candidate interviews, written tests, running, jumping, catching, throwing, kicking, and other agility tests.  If you want to see a 6'6 325 pound man run amazingly fast and weave around cones, this event is for you.  While your business isn't likely to engage in this type of testing, most employers do like the idea of conducting pre-employment testing to make sure prospective employees are a good fit.  While this seems like a great idea, keep in mind that the EEOC isn't nearly as excited about this process as the average employer.  If your business conducts any form of testing, keep in mind the EEOC has published a set of guidelines related to the testing.  If the testing process in any way discriminates or has a discriminatory impact, your business may find itself at odds with the EEOC.  It is important for employers to visit with counsel prior to implementing any testing programs to ensure they fully understand the risks associated with the testing.  Click here for a short EEOC summary on pre-employment testing.

 
Time for Spring Cleaning
2/22/2011
By: Donald Berner

Winter is fading.  We are about to turn the calendar to March and spring is just around the corner.  And with the arrival of spring comes spring cleaning.  In that spirit, take a few minutes to think about your record retention policies.  Are you keeping things too long?  Or are you tossing out important items too soon?  Every business has different issues and concerns with respect to record retention.  If you have a record retention policy, spend some time making sure you have trimmed back your collection of documents to comply with your own policies.  If you don't have a policy, think about what your policy needs to be and get started pulling one together.  And, if you have a policy that hasn't been updated in years, you probably should get out the red pen and see if any revisions or needed.  Finally, if you have pending legal matters (charges, complaints, investigations, and/or lawsuits), remember to comply with all document retention requirements applicable to those matters. 

 
Social Media and the National Labor Relations Act
2/08/11
By: Donald Berner

The National Labor Relations Act (NLRA) is the federal law most employers relate to unionization or to union-represented employees.  On occasion, the NLRA and its application bleed over into workplaces without union representation present.  For example, an employer policy prohibiting employees from discussing pay rates violates the NLRA regardless of whether employees in the workplace are union-represented.  In a recent skirmish, the National Labor Relations Board (NLRB), the government agency responsible for enforcing the NLRA, issued a complaint against an employer following the termination of an employee for violation of an internet/social media policy.  The employee had made complaints about her supervisor and responded to co-worker questions/comments on Facebook.  The NLRB's complaint was set for hearing before an administrative law judge, but yesterday the NLRB and employer reached a settlement. 

This settlement leaves unanswered the question of how the NLRA will be interpreted and enforced in the future.  The NLRB's filing of the complaint clearly signals a move by the federal government to extend protections to employees who complain via Facebook (or other social media outlets) about workplace issues and concerns.  Employers should be mindful of this development and stay tuned for further action on the part of the NLRB with respect to employee discipline for these types of violations.  For more information click here to read the NLRB press release.

 
The Dangers of Deductions from Wages
02/01/2011
By: Donald Berner

A manager walks into your office and declares that the time has come to part ways with an employee.  As you work through the termination process, a beancounter in Accounting informs you the employee owes the Company $500.  After asking a few more questions, you learn part of the money owed is for Company products the individual bought on credit, and another part is for reimbursement for a training session the Company paid for.  Accounting suggests you just take the debt from the employee's final paycheck.  While this might seem like a clean and simple solution, it could create problems for you under the Fair Labor Standards Act (FLSA) and/or the Kansas Wage Payment Act (KWPA). 

The reconciling of the books on the final paycheck is a very common mistake made by Kansas employers.  This simple step of deducting money for obligations owed to the employer directly from an employee's paycheck seems fair and simple.  The problem is the FLSA and the KWPA--and the government agencies that enforce them--don't necessarily agree with that concept.  The KWPA prohibits employers from deducting money from an employee's paycheck unless the deduction accrues to the benefit of the employee.  You can be assured that the collection of a debt by the employer won't be viewed as a deduction for the benefit of an employee.  Anytime you find yourself tempted to hold money directly from an employee's paycheck, it would be wise to consult with your attorney to ensure the propriety of the action.  Finally, even if a deduction does not violate the KWPA, keep in mind that there      Continue Reading...

 
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...

 
The Cost of A Bad Hire
01/06/2011
By: Boyd Byers

Over three-fourths of companies reported making a bad hire that adversely affected their business in 2010, according to a new survey by careerbuilder.com.  Twenty-one percent said one bad hire cost their company more than $50,000 last year, and ten percent said it cost them between $25,000 and $50,000.  Bad hires can be costly because of lost time and money to recruit and train a replacement, lower productivity, and legal issues.  The most common reason for making a bad hire?  The need to fill a job quickly.  For a more-detailed look at why bad hires create chaos, and the need to promptly cut your losses, click here

 
New Year -- New Resolution
01/04/2011
By: Donald Berner

Hope all of our readers had a happy and safe holiday season.  The bad news is that it's time to get back to work and get started into 2011.  With the turn of the calendar, many of us make resolutions for the new year.  For those of you who have yet to come up with something, here are a few ideas:

  • "In 2011 I am going to focus on making sure the company does a better job of documenting personnel issues."
  • "I will conduct a random audit of employee personnel files to make sure we are doing a good job keeping records in the appropriate spots."
  • "I-9 audit.  Yes, I will do one and look at all our I-9 files."
  • "Our company will do a better job with performance evaluations this year.  I will review and coach the management team so all our employees get a timely evaluation with meaningful feedback."
  • "I will review our FLSA compliance to make sure we are properly classifying our employees as exempt or non-exempt and not allowing employees to work off the clock."

While this list isn't exhaustive, it should give you a few fun things to choose from.  So pick out a resolution and get started.  If all else fails, you can always resolve to hit the gym every day with all the other post-New Year's Day gym rats. 

 

 
Tips and Tactics -- A Little More on Training
12/09/2010
By: Donald Berner

After blogging about training earlier this week, I had an opportunity last night to watch what might have been one of the better training sessions I've seen in some time.  To protect the innocent and hide the identity of all involved (other than me), I will only divulge that the training session was youth-sports-related.  As a parent, I have done more than my share of coaching kids' sports.  I have also had the opportunity to see plenty of other youth coaches at work.  The topic being taught last night was how to hit a softball.  I've seen dozens of other coaches present the same general information to groups of kids.  What differed between the session last night and all the others was the approach used for the teaching.  Here are the key things I saw that might be helpful in providing training to others:

  1. Break down the task being taught into each of its core component steps.  Isolate each one and teach it thoroughly before moving on to the next step in the process.
  2. Stop along the way to explain what you are telling the audience.  If you use terminology, make sure they understand those terms and how they apply to your topic.
  3. Engage your group and obtain feedback.  This will allow you to evaluate whether you are effectively conveying your points to your audience.
  4. Once you have isolated and taught the individualized steps, roll it all up into one package and present      Continue Reading...
 
Tips and Tactics -- Employee Training
12/07/2010
By: Donald Berner

Every employer approaches the issue of training from a slightly different perspective; however, all employers share the same end goal.  The goal is to bring in new employees and provide them with the required skills to perform the tasks the employer needs completed.  Sometimes the goal is to improve the skills of existing employees to allow them to be more efficient or to perform new tasks.  At the end of the day, the approaches utilized by the individual providing the training will dramatically impact the overall effectiveness of the training.  Here are a few thoughts that might make your training programs more valuable:

  • Make sure your trainer understands the audience.  The content and/or delivery of the training should be tailored to fit the attendees' knowledge level and ability to learn. 
  • Cheaper isn't always better.  It may be more cost-efficient to deliver training to the desktop via computer-based tools.  The real question is whether the target audience actually absorbs the training delivered.  No amount of cost reduction in the training delivery method is worth sacrificing the actual learning objective.
  • Location, location, location.  Removing your employees from their normal work areas and the distractions that accompany it will likely improve the quality of your training outcome.  Avoiding the distractions of day-to-day work operations allows the employees to focus on learning whatever it is you want them taught.
  • Atmosphere, atmosphere, atmosphere.  The environment will dramatically impact the quality of the training.  Make sure it isn't too hot,      Continue Reading...
 
The Power of Thanksgiving
11/19/2010
By: Boyd Byers

In the spirit of the Thanksgiving season, take pause to contemplate how the art of giving thanks can work wonders in your workplace. Below is an article by Jack Canfield (the Chicken Soup for the Soul guy), republished here by permission, that is right on target. As Canfield points out, honest appreciation is a great employee motivator. The power of appreciation can help foster a work environment that enhances performance and minimizes complaints. The lesson? Managers who are turkeys to their workers might find themselves with their necks on the chopping block.    

Practice Uncommon Appreciation
 
by Jack Canfield
 
A recent management study revealed that 46% of employees leaving a company do so because they feel unappreciated; 61% said their bosses don’t place much importance on them as people; and 88% said they don’t receive acknowledgement for the work they do.
 
Whether you are an entrepreneur, manager, teacher, parent, coach or simply a friend, if you want to be successful with other people, you must master the art of appreciation.
 
I’ve never known anyone to complain about receiving too much positive feedback. Have you? In fact, just the opposite is true.
 
Consider this: Every year, a management consulting firm conducts a survey      Continue Reading...
 
The Great Kansas Smoke Out
06/25/2010
By: Boyd Byers

Don’t forget that the new Kansas smoking law becomes effective July 1, 2010. As of that date smoking will be prohibited in most indoor public places and employment places, including within 10 feet of any doorway, open window, or air intake of a building where smoking is prohibited. 

 The Kansas Department of Health and Environment has created a special website to provide compliance assistance: www.kssmokefree.org. The website includes a Business Toolkit, which lists the following steps that business should take to get into compliance:
 
1.                  Adopt a written smoking policy to prohibit smoking in all areas of employment and communicate this policy to all current employees and all new employees upon hiring.
2.                  Remove all ashtrays and matches.
3.                  Post a no smoking sign.
4.                  Ask any person violating the law to stop smoking. Remind customers of the law and politely explain they must step outside to smoke. Train your staff regarding what to      Continue Reading...
 


Authors
Don Berner Image
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
Additional Sources
Subscribe to Kansas Employment Law Letter Image
Subscribe to Kansas Legislative Insights Image