Kansas Employment Law Blog Photo
EEOC's Position on Sexual Orientation Based Discrimination Rejected by the 7th Circuit
By: Donald Berner

As most of you probably already know, the EEOC has taken the position that bias based on sexual orientation is sex discrimination in violation of Title VII.  In a decision issued by the 7th Circuit Court of Appeals (the first federal circuit court of appeals to hear such a case), the EEOC's position was rejected.  The Court focused heavily on following the precedent established in prior 7th Circuit cases in reaching its conclusion. that Title VII does prohibit bias on the basis of sexual orientation.

This issue is likely to make news through the remainder of 2016 and throughout 2017 as other federal circuit courts of appeals are set to hear cases raising the same issue.  In addition to further court decisions, the Equality Act is pending in Congress which would add sexual orientation and gender identity to the protected classifications currently in existence under federal law.  Stay tuned for further developments.  

Department of Justice Adjusts Penalties for Inflation
By: Donald Berner

The Department of Justice ("DOJ") published a new set of civil penalty amounts for a variety of civil matters enforced by the DOJ that are set to go into effect for violations occurring after August 1, 2016.  The new penalty amounts were adjusted for inflation from the prior penalty amounts which in some cases had not been adjusted by the DOJ for quite some time.  As a result, the adjustments to the penalty amounts in some areas were significant. 

As part of the inflation adjustment, the DOJ increased the penalty amounts for the various immigration related violations enforced by the DOJ.  These penalty amounts, initially established between 1980 and 1996, had never before been adjusted.  Of note, the DOJ adjusted the penalty amounts for I-9 paperwork violations from a range of $110 to $1,100 per violation up to a range of $216 to $2,156 per violation.  In addition, the penalty amounts for employing aliens not authorized to work in the United States were also increased significantly.

Employers should make note of these increases related to the I-9 process.  If you haven't audited your I-9 records in some time, now would be a great time to do so in advance of these increased penalty amounts. 

A New Frontier -- Breastfeeding
By: Donald Berner

Earlier this month, four breastfeeding airline pilots filed EEOC complaints against Frontier Airlines for refusing to accommodate their need to express breast milk by way of pumping.  The charges allege Frontier did not provide any accommodation to allow the employees to pump regularly and disciplined one employee for engaging in pumping activity aboard an airplane.  

The EEOC's position on the subject is clear and spelled out in its Enforcement Guidance on Pregnancy Discrimination and Related Issues dated June 25, 2015: "An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions."  

These filings serve as a good reminder to employers that the EEOC reads the Pregnancy Discrimination Act to include reasonable accommodation obligations similar to those in the ADA. Various state laws, including one in Kansas, also provide certain protections for breastfeeding and/or expressing breast milk. Employers should carefully consider any request made by an employee to allow for this type of activity.  In addition, not only do employers need to consider Title VII, the Affordable Care Act amended the FLSA to require employers to provide break time and private locations for pumping activity.  

It will be interesting to see how Frontier Airlines responds to these charges.  Stay tuned.   



EEOC FY2013 Data Shows Growth in EEOC Activity
By: Donald Berner

The EEOC recently released its FY2013 enforcement and litigation data for public review.  The data shows a decline in the total number of charges filed with the EEOC as compared to the totals for 2010, 2011 and 2012.  Of note, however, is the growth in the number of retaliation charges filed as the statistics continue to show a growth in the number of charges based on retaliation claims.  Employers should take note and ensure their policies and procedures address retaliation concerns.  Furthermore, employers should consider additional training for managers as it relates to potential retaliation.  Click here for the new release and link to the statistical data. 

OSHA Taking Comments on Electronic Submission of Injury and Illness Data
By: Donald Berner

OSHA has proposed an amendment to the recordkeeping regulations to add a requirement for electronic submission of injury and illness information.  The comment period for this proposed change has been extended through March 8, 2014.  Stay tuned as this proposed change works its way through the regulatory process. 

New Affirmative Action Rules for Government Contractors
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...
‘Not so fast,’ Kansas AG tells EEOC
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...
EEOC Sues Employers Over Criminal Background Checks
By: Boyd Byers

Last year the EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decision Under Title VII of the Civil Rights Act of 1964. As explained in the Guidance, an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate prohibitions against employment discrimination, particularly with regard to race and national origin. This can occur when an employer's neutral policy disproportionately impacts persons of a particular race or national origin, and the policy is not job-related and consistent with business necessity. Last week the EEOC put its money where its mouth is by suing two employers, BMW and Dollar General, for their use of criminal background checks.     

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The EEOC alleges that after BMW ended its contract with UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at a manufacturing facility, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse.  As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the      Continue Reading...

By: Boyd Byers

What day of the year is FMLA leave accessed the most? The day after the Super Bowl. Seriously. 

This fact underscores how the FMLA is subject to employee misuse and creates burdens for employers. “It’s a ripple effect,” says Marc Freedman of the U.S. Chamber of Commerce. “Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace.”
Twenty years ago today, President Clinton signed the FMLA into law. Since then, employers have struggled to administer employee leave and comply with the law. FMLA consistently tops the list of HR’s legal questions, according to the Society for Human Resource Management.  
Today the U.S. Department of Labor is holding a party to celebrate the FMLA’s twentieth anniversary. Former President Clinton and other dignitaries will speak. And in honor of the occasion, DOL gave you a present—new regulations!   
The new rules implement and interpret two statutory amendments that expanded FMLA protections. The first expansion provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members, and it also enables more military families to take leave for activities that arise when a service member is deployed.  The second expansion modifies existing rules so that airline personnel and flight crews are better able to make use of the FMLA’s protections.   

For a summary guide to the new regulations in Q & A format, click here. If you have a couple of hours to kill and are a glutton for punishment, you can link to the new rule itself here

     Continue Reading...
DOL Creates 100-Year Anniversary Video
By: Boyd Byers

In honor of America's centennial, France gave us a gift: the Statue of Liberty. In recognition of its own centennial, the United States Department of Labor has given all of you a gift: a YouTube video chronicling its history. The six-minute-long video describes DOL's creation, introduces the labor secretaries, summarizes its legislative history, and promotes the things it does for workers. But be forewarned: the video is a slide slow, not a live-action film, and DOL tells the story to serve its own interests.  Watch the Video

Do You Know? Job Protection for Employees Who Experience Domestic Violence
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...

Avoiding Discrimination Claims - Good Investigations
By: Donald Berner

In most cases, a discrimination claim arises following some sort of disciplinary process or performance counseling activity. In more limited cases, the external claim follows some concern raised internally with the employee being dissatisfied with the resolution reached during the internal process. In all of these situations, the employer should have conducted an internal investigation into the matter. The quality of the internal investigation will have a significant impact on the later external claim the employee files with the KHRC/EEOC.

In the case of employee misconduct, the internal investigation will provide the basis for the discipline that is ultimately issued in the matter. The documentation of the investigation will go a long way to supporting the employer's defense to a discrimination claim if the investigation was handled appropriately. The key to any investigation is to be thorough and fair as the facts and circumstances are evaluated. A good investigation includes interviews of any and all witnesses to the situation, even if the witness will provide information that is contradictory to the position the management team has taken. Trust me on this one -- it is much better to find out all the sordid details during the internal investigation than to be hit over the head with those bad facts months (or even years) after the fact during an external investigation. 

Avoiding Discrimination Claims - Good Documentation
By: Donald Berner

If you have worked in HR or management for more than a few days you are sure to have heard several times by now to document and then document and then document. This old employment-law adage remains true today. Maintaining documentation of your employment decisions can be the difference between being able to successfully defend a discrimination claim and losing on that claim. The typical discrimination charge filed with the KHRC/EEOC covers factual events that range anywhere from three months old to several years old. If you are anything like me, remembering where I was at two years ago today is virtually impossible let alone what happened during a three-minute conversation with a co-worker. That's where documentation comes into play.

I want to expand a bit on that concept of documenting to add in the notion that what you are really after is good documentation. Any employment decision made should be supported with documentation reflecting that action. The documentation can be simple notes written by a supervisor or a full-scale form detailing actions taken and the reasons for the action. In most cases, the documentation will be an accurate and true reflection of the events being noted and will be given much more weight two years later than a supervisor or employee's recollection of the events. That's what makes good documentation so important -- it is not subject to revisionist memory since it was created at the time of the event.

One last note: the documentation maintained in an employee's personnel file should      Continue Reading...

Avoiding Discrimination Claims - Training
By: Donald Berner

If an employer has a set of policies and practices in place, educating the employees and the management team is a critical link in reducing the likelihood of a discrimination claim. The training for employees will differ somewhat from the training provided to the management team.

With respect to employees, the new-hire orientation process should contain a general overview of company policies and rules. In addition, it is always a good practice to have the employees sign an acknowledgment that they were made aware of the policies and rules in place. Beyond a general new-hire-training process, it is also helpful to conduct periodic training sessions for employees focused on non-discrimination and anti-harassment policies, as well as any specific company rules that need additional emphasis. With respect to the anti-harassment and non-discrimination training, it is important to emphasize the internal process by which complaints under those policies can be made. This internal complaint process will be helpful in that it will encourage employees to keep complaints internal and may provide the employer with the ability to assert some affirmative defenses if the employees fail to follow a complaint process.

The management team should receive the same training as non-management employees, as well as additional training on topics including the FMLA, ADA, Title VII, and the FLSA. It is important for supervisory employees to understand the employer's basic obligations and practices with respect to these various statutes. These management employees are likely to be the first employer representative to encounter a concern implicating these statutes, so they need to understand the basics to ensure they properly respond to the employee. Another key part of the      Continue Reading...

Avoiding Discrimination Claims - Policies Pt. 2
By: Donald Berner

The last installment discussed a couple of important policies - EEO and anti-harassment - that all employers should have in their policy collection to help avoid discrimination claims. Beyond those two policies, employers should also have a wide-ranging variety of policies related to how employees should conduct themselves in the workplace. These various policies will cover all sorts of disciplinary and performance issues and will vary from employer to employer. While having the policies is helpful, the next key to avoiding discrimination claims is to ensure these wide-ranging policies are followed as written by the employer. If an employer policy addresses a situation, the actions taken by the employer should be consistent with the policy. And beyond being consistent with the policy, the actions taken should be consistent how the employer handled past instances of violations of the policy. An employer that deviates from the terms of its own policies or from its past practices may find it difficult to defend the employment action taken. You can be sure the employee filing the charge will claim the deviation is a result of the employee's protected classification as opposed to the employer's insistence the action was based upon the policy violation.

So remember, follow the policy as written and make sure any employment action taken is consistent with how violations have been handled in the past. A failure to do so will invite employee-discrimination claims.   

Avoiding Discrimination Claims - Policies
By: Donald Berner

As most of you know, any of your employees (or former employees) can file a discrimination charge with the EEOC or KHRC alleging your company discriminated against them on the basis of any (or several) protected classifications under the various statutes like the ADA or Title VII. When a charge is filed, the employer will almost always be required to respond to the agency and provide a variety of supporting materials and/or materials requested by the agency. These investigations also frequently involve the agency sending an investigator to your workplace to interview witnesses (managers and co-workers of the complaining party). This process can be time consuming for employers and serve as a distraction from the normal course of business for the employer. The best defense to a discrimination charge is to exercise good preventive medicine. 

Over the next few weeks, check back for a series of posts highlighting some good preventive measures an employer can take to avoid a discrimination charge. And even if these measures don't prevent a charge, following some or all of them will make defending the charge a much easier task.

So let's get started.

The first line of defense revolves around employer policies. Every employer should implement EEO-related policies and procedures. The basic EEO policy should reinforce the employer's commitment to equal employment opportunity and to making employment-related decisions without considering protected classification information. In addition to an EEO policy, employers should also have a policy related to harassment issues. The anti-harassment policy should cover sexual harassment and other forms of harassment based on protected classifications. It is      Continue Reading...

EEOC Strategic Enforcement Plan Published
By: Donald Berner

The EEOC published a draft version of its Strategic Enforcement Plan last week. Of particular note for employers is the priorities section of the document, which identifies the areas in which the EEOC will place special emphasis in the future. Some of the areas of emphasis will include:

  • Hiring Discrimination: The gist of this effort is to target employers with hiring practices that discriminate. While this seems easy enough to understand, keep in mind that a neutral policy or practice that has an adverse impact on a protected classification is just as much a problem as a policy that directly discriminates.
  • Immigrants and Migrant Workers: The EEOC views this segment of the population as vulnerable and exploited and intends to pay special attention to the treatment of these groups.
  • Pregnancy Accommodation: The EEOC seems to believe that pregnant women are placed on unpaid leave when other employees are provided accommodations and will be paying special attention to this concern.

There are some other areas of emphasis that shouldn't come as a surprise (like ADA enforcement). You can review the full document here. To see the priorities scroll down to Section III of the document.

EEOC Says High School Diploma Requirement May Violate ADA
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...

EEOC Issues Final ADEA Regs
By: Boyd Byers

On March 29 The U.S. Equal Employment Opportunity Commission (EEOC) issued the "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).  The final rule clarifies the EEOC's position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. 

The rule responds to two Supreme Court decisions in which the Court criticized one part of the EEOC's existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.  However, it disagreed with the part of the regulations that said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”  The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

In issuing the new rule, the EEOC tried to make its regulations consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.  For a more-detailed      Continue Reading...

NLRB Postpones Posting Deadline
By: Boyd Byers

On December 23 the National Labor Relations Board agreed to postpone the effective date of its new employee rights notice-posting rule. The extension moves the implementation date from January 31 to April 30, 2012. Under the new rule, most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date. The notice and additional information on posting requirements are available on the NLRB's website, www.nlrb.gov. The NLRB took this action, at the request of the federal court in Washington, D.C., to facilitate resolution of legal challenges to the rule.

IRS Calls 'Olly Olly Oxen Free' to Employers Who Voluntarily Reclassify Contractors as Employees
By: Boyd Byers

Olly olly oxen free!

Do you remember this chant as the “all clear” signal when playing tag, hide-and-seek, and similar childhood games?  (In case you’re wondering, linguists think the phrase probably evolved from “all ye, all ye, ‘outs’ in free” as it was passed down over generations of schoolchildren.)

On September 21, the Internal Revenue Service announced the Voluntary Classification Settlement Program (VCSP). It’s sort of like an “olly olly oxen free” for employers who have misclassified employees as independent contractors.  Sort of. It’s not entirely free, of course.  But the program does offer employers substantial relief from past federal employment tax liability if they agree to get into compliance going forward. 

The VCSP is available to employers who are currently treating a class or group of workers as independent contractors, but want to treat the workers as employees prospectively.  In exchange for agreeing to treat the workers as employees for future tax periods, employers participating in the VCSP get the following relief: 
  • pay only 10 percent of the employment tax liability that may have been due on compensation paid to the workers for the most recent tax year;
  • no liability for any interest and penalties on the amount; and
  • not subject to an employment tax audit with respect      Continue Reading...
Business Groups Sue NLRB Over Union Poster Rule
By: Boyd Byers

As we previously reported, last month the National Labor Relations Board issued new regulations that require employers to post notices informing workers of their rights under the National Labor Relations Act. (See NLRB Issues New Posting Rule.) This week the U.S. Chamber of Commerce sued the NLRB to block the rule. It alleges that the NLRB does not have authority to force employers to post the notifications or impose penalties for failing to do so, and that the notification rule violates employers’ First Amendment rights. Two other business groups, the National Association of Manufacturers and the National Federation of Independent Businesses, previously sued the NLRB over the union poster rule. We’ll let you know how it all shakes out. Until the courts rule on this issue, employers are well-advised to comply with the posting requirements, which become effective on November 14, 2011. 

Feds Find Fault with Firm's Facebook Firings
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
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.   

NLRB Continues to Clear a Path for Unionization
By: Donald Berner

There have been a number of actions taken by the NLRB in 2011 that have been blog worthy.  For those that have followed along closely, the overwhelming theme of the NRLB's decisions and actions has been extremely pro-union.  Each of the decisions along the way makes it harder for employers to manage their workforce and to avoid unionization should a labor union become interested in representing their employees.  In a decision a few days ago, Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB altered the rules with respect to which employees can be included in a bargaining unit.  The NLRB held that once a union petitions for a specific bargaining unit, for an employer to add other employees to the requested unit it must be demonstrated that they share an "overwhelming community of interest" with the requested unit.  What is new with this decision is the addition of the qualifier "overwhleming."  The requirement to show an "overwhelming" community of interest, in a practical sense, means that employers may struggle mightily to alter the unit of employees the union targets with a petition.  While this may sound like a non-issue for those who have not dealt with union organizing efforts, it may prove to be one of the most significant pro-union decisions issued by the NLRB.  The practical application of this concept is that unions may now choose small subsets of employees within an employer as a target for unionization, and the employer may be powerless to add other similar employees into the election process.  This ability to      Continue Reading...

Smoke-free for One Year
By: Boyd Byers

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

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

2.                  Remove all ashtrays and matches.

3.                  Post a no smoking sign.

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

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

6.                  Ask any person violating the law to leave.

7. Continue Reading...

Looking for Work? The DOL is Hiring
By: Donald Berner

The Department of Labor is currently hiring.  While this is good news for recent college graduates looking for work, this may not be such good news for employers.  The DOL is continuing to focus its resources on enforcement of the Fair Labor Standards Act (FLSA).  This focus can mean only one thing for employers -- an increased likelihood of a wage and hour audit.  The local DOL office in Wichita, which covers most of Kansas, has added several new investigators in recent months and is currently hiring yet another.  These recent hires are just now starting to get out of their office and into employers' offices.  These additional investigators likely will result in increased enforcement activity going forward.  In the short-term, employers should consider self-auditing their pay practices, with the guidance of legal counsel under the attorney-client privilege, to ensure compliance with the FLSA prior to getting a visit from the DOL.

KDOL Updates Work Comp Poster
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.
Social Media and the NLRB: Where Are the Boundaries of Protected Activity?
By: Donald Berner

Social media (Facebook, Twitter, MySpace, etc.) issues have made for interesting news so far this year.  The National Labor Relations Board (NLRB), which has weighed in on social media handbook policy related issues, recently issued a complaint against a non-profit agency after five employees were discharged from their employment. 

The trouble started when an employee posted a message on her personal Facebook page related to the agency's shortcomings in serving its clients and naming a co-worker.  In response to the posting, several of the employee's co-workers engaged in a discussion about staffing levels and workloads at the agency via comments to the initial Facebook posting.  When the employer discovered the discussion, all five employees involved were discharged for the comments.  The employer says the postings harassed the named employee.  

As you might guess, the NLRB took issue with the discharges since the group discussion related to working conditions.  The NLRB's position is the five employees were engaged in concerted activity related to the terms and conditions of their employment, and such activity is protected from interference (read discharge) by the employer. 

This complaint is yet another attempt by the NLRB to weigh in on social media issues.  The NLRB is aggressively policing employer social media policies to ensure they are not overly broad and restrictive.  This complaint furthers that effort by attempting to prohibit employee discipline/discharge for employees discussing workplace concerns via social media.  As we all saw throughout the Middle East, social media sites can provide an easy means for individuals to spread messages to a widespread and mainly anonymous audience.  The NLRB's efforts in early      Continue Reading...

So You've Been Sued -- Now What?
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. 
Want to Make an Overtime Claim? There's an App for That!
By: Boyd Byers

On May 9 the U.S. Department of Labor announced the launch of its new smartphone application, a user-friendly electronic timesheet employees can use to track their hours worked and calculate wages they are owed.  The app allows employees to record regular work hours, break time, and any overtime hours for one or more employers.  Users can manually enter their time, or use simple “start work” and “stop work” buttons that automatically record their time worked.

DOL is providing this new technology to help workers keep their own time records rather than rely on their employers’ records.  If an employer fails to maintain accurate time records, the employee may then use this information as evidence to try to prove that he or she performed work for which she was not compensated.  

The app not only records hours, it also automatically calculates gross pay, including overtime pay at one-and-one-half times the regular rate for all hours worked over 40 in a workweek.  Users can view summaries of hours worked in daily, weekly, and monthly formats, with gross pay calculations.  They can then easily email these reports, which show up as attached Excel spreadsheets.  The app also includes a “Contact Us” page with a link to the DOL’s website and a function to directly send emails to DOL. 
The free app is currently compatible with the iPhone and iPod Touch.  DOL says it will explore apps for other      Continue Reading...
DOL Issues New FLSA Regs
By: Boyd Byers

Last week the U.S. Department of Labor issued new FLSA regulations. The final rules, which become effective May 5, 2011, reflect changes necessary to update the regulations to comply with statutory changes or to replace outdated examples. 

Tipped Employees.  As a result of recent increases in the federal minimum wage to $7.25 per hour, the new regulations clarify that the minimum cash payment required to tipped employees—redefined by statute and now updated in the regulations to mean an employee who customarily and regularly receives over $30 per month in tips—remains unchanged at $2.13 per hour (assuming the employee receives enough wages from tips to reach the minimum wage).  This effectively increases the maximum tip credit an employer may claim—the difference between the minimum wage and the minimum cash payment—to $5.12 per hour. 
The new regulations provide that tips are the property of the employee, whether or not the employer takes a tip credit, and cannot be used by the employer for any purpose other than as a tip credit or a part of a valid tip pool.  There is no limit on the percentage of tips that an employer may require an employee to contribute to a tip pool, but the pooled tips must be distributed only to employees who customarily and regularly receive tips and may not be retained for any other purpose.  Whatever the arrangement, the employer may not claim      Continue Reading...
Learning A Lesson -- H-1B Prevailing Wage Violation
By: Donald Berner

The Department of Labor (DOL) recently penalized the Prince George's County school system for its failure to properly pay H-1B workers.  In the case of an H-1B worker, the employer must pay the employee at least the prevailing wage amount established for the position.  The prevailing wage system is designed to ensure that foreign labor is not used to lower the U.S. wage base in a given occupation.  While the announcement is unclear, the problematic issue for the school is likely to have been the requirement the H-1B worker pay some or all of the fees for the preparation of the H-1B application packages. 

Generally speaking, it can be permissible for the employer to require an employee to pay the legal fees associated with any H-1B filing so long as these costs do not effectively lower the employee's wage rate below the prevailing wage rate.  For purposes of compliance, H-1B employers should view the prevailing wage as the minimum wage for an H-1B employee.  In addition to the prevailing wage floor, employers with H-1B employees should also be mindful of how the H-1B employee's compensation compares to his/her peers in the job classification.  Dropping below one of these floors can create a backpay liability issue for an H-1B employer.  In addition to the attorneys' fees concerns, there is also a government filing fee cost associated with the H-1B program.  While a payment of the attorneys' fees amount can be permissible, employers are not permitted to require the employee to pay the government filing fees associated with the H-1B application process.  

For the      Continue Reading...

EEOC Issues Final ADAAA Regs
By: Boyd Byers

The EEOC has finally issued its long-awaited regulations interpreting the ADA Amendments Act.  The final regulations are in today's Federal Register.  Here's the link (guaranteed to make your eyes glass over): 


KHRC Officials Criticize Governor's Plan for Agency
By: Boyd Byers

Two months ago we told you about Governor Sam Brownback's proposal to move the Kansas Human Rights Commission into the Attorney General's Office as part of a plan to cut costs.  William Minner, the Commission's Executive Director, and Joseph Mastrosimone, its Chief Legal Counsel--whose positions would be eliminated if the plan is approved--are now speaking out against the proposal.  They say the plan would create legal conflicts of interest when the KHRC pursues discrimination cases against state agencies and officials, because the AG's Office represents agencies and officials when they're sued.  

Several civil rights organizations, including the Kansas chapters of the National Association for the Advancement of Colored People and the National Organization for Women, oppose the Governor's proposal.  They plan to conduct a protest march and rally this weekend. 

A spokesperson for the Governor says the AG's office regularly manages conflict issues like this already.  The Kansas Legislature will eventually decide whether to act on the proposal.

Hasta la vista, KHRC?
By: Boyd Byers

Governor Brownback's proposed budget, released yesterday, would eliminate eight state agencies as a cost-cutting measure.  The Kansas Human Rights Commission is one of the targeted agencies.  Under Brownback's proposal, the KHRC would cease to be its own agency, and would become part of the Attorney General's office, saving $231,375 in fiscal year 2012.  The proposed budget is just that--a proposal.  The Kansas legislature decides whether to accept or reject the governor's recommendations.  Follow Kansas Employment Law Blog to see how this plays out. 

Meet the Repealer
By: Boyd Byers

Arnold Schwarzenegger was the Terminator.  Former President George W. Bush famously dubbed himself the Decider.  Yesterday Kansas Governor-elect Brownback named Dennis Taylor as "the Repealer.” Taylor (who must still be approved by the Senate) will actually hold the title secretary of administration, overseeing the newly created office of the repealer. The office will seek to eliminate state regulations deemed unconstitutional, unlawful, or unnecessary. Stay tuned to see if he puts any Kansas Department of Labor or other employment-related regulations in the crosshairs for repeal. 

Grain Industry Target of OSHA Emphasis
By: Donald Berner

OSHA has announced a new emphasis to protect the safety of workers in the grain-handling industry in Kansas.  Employers in this industry should expect an investigative effort by OSHA focused on their operations in the coming months.  The time to prepare for a potential OSHA inspection is now, not when the OSHA inspector arrives at your doorstep.  For more information on the emphasis and a recent letter from OSHA to grain industry employers, hit the links below. 



In Loco Parentis and the FMLA
By: Donald Berner

What does a crazy parent have to do with the FMLA?  Seems like a fair question to ask.  As a parent, most days I come away feeling a bit crazy. 

Instead of pondering the merits of crazy parents, or parents driven crazy, let's ponder the Department of Labor Wage and Hour Division's (DOL/WHD) recent Interpretation of the in loco parentis language contained within the FMLA regulations.  This recent pronouncement from the DOL/WHD appears to expand the group of employees who are able to claim parent status for purposes of taking FMLA to care for a child.  The regulations explain that individuals "who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child."  The new DOL/WHD interpretation softens this requirement by stating an employee qualifies as a parent by showing either day-to-day care or financial support so long as the employee intends to assume parental responsibility.  The practical implication of this interpretation is to further expand the group of individuals able to assert leave rights as the parent of a child.  Be mindful of this interpretative expansion as you receive FMLA requests related to the care of a child. 

You can find the text of the interpretation at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

Tips & Tactics -- Government Investigations
By: Donald Berner

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

  • Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
  • Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
  • Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group      Continue Reading...

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