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A Friendly Notice About Two Weeks' Notice
By: Boyd Byers

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

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

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

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

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

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

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

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

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

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

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

In addition, upon providing      Continue Reading...

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

The 2013 Kansas legislative session is now in full swing. Lawmakers have introduced several employment-related bills.

House Bill 2022 -- Expands the number and types of deductions that employers may withhold from an employee's wages, contingent on a written agreement between the parties. Also expands an employer's ability to withhold wages when an employee leaves. However, such withholding cannot reduce the employee's wages below the federal or state minimum wage law.

Senate Bill 53 / House Bill 2092 -- Specifies what social media information an employer can and cannot ask an applicant or employee to divulge.

Senate Bill 48 -- Requires that, starting January 1, 2014, all governmental units and contractors involved in a public contract of $50,000 must use e-verify for verification of employment status of all employees whose employment begin on or after January 1, 2014. Grants the Secretary of Labor authority to establish rules and regulations and impose restrictions on violations of the act.

House Bill 2105 -- Incorporates numerous amendments to the employment security law, such as revising the circumstances when an individual can be disqualified for benefits; redefining "gross misconduct" involving the use of alcohol or controlled substances; and imposing penalties for unlawfully receiving benefits.

Kansas Employment Law Blog will keep you up to date on the progress of these bills and other significant legislative developments.

Do You Know? Forfeiting Unused Vacation Time
By: Boyd Byers

You may be familiar with Benihana, the Japanese-cuisine restaurants that feature knife-wielding, joke-cracking chefs who prepare your food. In 2011 a group of former managers filed a class action, alleging that Benihana’s vacation policy violated California law by requiring employees to forfeit accrued, unused vacation time when their employment ends. This month Benihana agreed to pay $600,000 to settle the case.  

Do you know that the Kansas Wage Payment Act similarly prohibits employers from imposing a forfeiture of earned but unused vacation time? But that does not necessarily mean employers are always obligated to let employees cash out their unused vacation time upon termination. Confused? You should be, as Kansas law on this issue is tricky. Read on and I’ll explain.
The KWPA provides that employers must pay all wages due, which includes vacation time and paid time off (PTO), provided the employee has met all the conditions required to be eligible for and earn that compensation. Kansas Department of Labor regulations prohibit employers from imposing a “condition subsequent” to an employee’s entitlement to compensation that results in a forfeiture or loss of earned wages. This is in contrast to a condition precedent, which is something that must happen before the agreement becomes effective.

Still confused? The key point to understand here      Continue Reading...

Do You Know? Wage and Benefit Notification
By: Boyd Byers

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

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

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

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

In      Continue Reading...

Bill to Amend Wage Payment Act Dies
By: Boyd Byers

You may remember Schoolhouse Rock, the series of educational cartoon shorts that ran on ABC on Saturday mornings in the 1970s.  One of the most-popular episodes, titled "I'm Just a Bill," teaches kids about the legislative process through the adventures of Bill, a bill hoping to become a law.

At one point Bill and a young boy have the following exchange:

Bill:  "I hope they decide to report on me favorably; otherwise I may die."

Boy:  "Die?"

Bill:  "Yeah, die in committee."

Such was the fate of a bill to amend the Kansas Wage Payment Act.

Kansas lawmakers closed a marathon 99-day session yesterday afternoon.  When the gavel slammed for the final time, one of the bills left in the dust was House Bill 2627.  This bill would have allowed employers to withhold money from an employee's final paycheck, upon providing written notice and an explanation, for the following reasons:  (1) to recover a computer, phone, and other property provided to the employee; (2) to recoup a loan or advance made to the employee; (3) to recover a payroll overpayment; and (4) to compensate the employer for the cost or unpaid balance of the employer's uniforms, equipment, tools, or other property purchased by the employee. 

The House of Representatives passed the bill 93-31 on February 23.  On March 1 it was referred to the Senate Committee on Commerce.  The Committee made some changes, and on March 13 recommended that it be passed by the entire Senate.  But that was the end of the line for the bill, at least for the 2012 legislative      Continue Reading...

Kansas Court Expands Scope of Retaliatory Discharge
By: Boyd Byers

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

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

Kansas House Approves Wage Payment Act Amendments
By: Boyd Byers

A few weeks ago we told you about Kansas House Bill 2627, which would amend the Kansas Wage Payment Act to expand the scope of authorized pay deductions.  Since then, the bill, with a few changes along the way, was passed by the House on a vote of 93-31.  It was introduced in the Senate, and last week was referred to the Senate Committee on Commerce.  We'll keep you informed as we continue to track the bill's progress. 

Proposal Would Clarify and Expand Kansas Wage Deductions
By: Boyd Byers

The Kansas Wage Payment Act controls many aspects of wage payment and deductions.  The KWPA's frequently unknown and often-misunderstood restrictions on wage deductions can cause problems for employers.  

Kansas House Bill 2627, introduced on February 3, would amend the KWPA to clarify the law and expand the scope of authorized pay deductions. The proposed changes to the KWPA would expressly allow Kansas employers to withhold, deduct, or divert any portion of an employee's wages for the following purposes:

(1)  To allow the employee to repay a loan or advance which the employer made to the employee during the course of and within the scope of employment.  The KWPA presently is silent about such deductions, although Kansas Department of Labor regulations do say that employers can make deductions for cash advances the employee requested in writing. 

(2)  To allow for recovery of payroll overpayment.  Here again, the KWPA today does not address such deductions, but KDOL regulations permit deductions to correct wage overpayment that resulted from the employer's error, although the deduction rate cannot exceed the overpayment rate unless the employee signs an authorization.

(3)  To compensate the employer for the value of the employer's merchandise or uniforms purchased by the employee. The regulations today say that even with the employee's consent, an employer cannot make deductions for uniforms that are not necessary to the job and that are customarily supplied by the employer.  

(4)  To compensate the employer for breakage, loss or return of merchandise, inventory shortage, or cash shortage caused by the employee where the employee was the sole party responsible for the case or items damaged or      Continue Reading...

Confucius Says: He Who Retaliates Digs His Own Grave
By: Boyd Byers

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

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

Employee In Hog Heaven Over Kansas Supreme Court Ruling
By: Boyd Byers

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

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

Don't Be Torpedoed by Your Subs
By: Donald Berner

Businesses may assume that once they hire a subcontractor to handle a specific task or project, all obligations or concerns regarding the subcontractor's employees are not their problem.  While this sounds good, this is absolutely incorrect.  There are a number of areas in which a business can be held responsible for the actions or inactions of its subcontractor.  One particular issue that is not well-known is responsibility for a subcontractor's unpaid wages under the Kansas Wage Payment Act (KWPA).  The KWPA places secondary responsiblity for unpaid wages on the entity hiring the subcontractor in the event the subcontractor fails to pay its employees.  The most-common application of this statutory rule is on a construction project where a general contractor hires a variety of subcontractors to perform smaller portions of the work.  If one of these subcontractors fails to pay its employees, the employees may make a claim against the general contractor for their unpaid wages.  While a construction industry example is easy to see, there are numerous other scenarios where a business enters into a contract to perform a service and subcontracts various parts of that obligation.  These types of arrangements would also fall within the scope of this provision in the KWPA.  For the specific statute click here.  

The Dangers of Deductions from Wages
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...


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