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A Christmas Story: Tales of Woe and Joy from the Holiday Party
By: Teresa Shulda

Now that the holidays are over, we can look back on a year of accomplishments and success. Or, for some, we can start the new year with HR headaches resulting from the annual holiday party.

The Naughty List
Holiday parties are ripe for mischief and mistakes. The following are true stories of office parties that went horribly awry.
  • A California bank branch held an annual holiday party at a local restaurant. There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch). The entire affair, including the alcohol, was funded by the bank’s budget. The office party officially ended, but the party-goers continued their revelries. But once the bank’s party ended, the bank employees had to fund their own cocktails. The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house. You can probably see where this is going. The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank should have foreseen the harassment, particularly in light of the alcoholic drinks that were provided at the holiday party. The trial court ultimately found the bank wasn’t liable, largely because the office party ended, and the drinking that continued wasn’t on      Continue Reading...
Teresa Shulda: Wonder Woman in Business

In case you missed it, our very own Teresa Shulda was recently recognized by the Wichita Business Journal as a 2019 Women in Business honoree. Teresa and 26 other commendable Wichita women were awarded for creating successful careers and working to improve their companies and their community. 

Not only is Teresa an active member of our employment and labor team, where she serves as Vice-Chair, she also supports many firm initiatives as a part of the firm’s Associates, Recruiting, Strategic Planning, and Diversity and Inclusion Committees. Outside of the office, she’s a wife, mother, and board member for the Boys and Girls Club of South Central Kansas. Wonder Woman or Teresa Shulda, you say? It’s difficult for us to tell the difference.

If you have attended our annual Employment Law Institute, HR Trainings, or other sessions, you may recognize Teresa as our employment discrimination, FMLA, and ADA guru. We are proud to recognize our lawyer and friend for her well-deserved achievement.

You can view Teresa’s honoree questionnaire and get to know more about her here.

Kansas Employment Law Institute - May 2, 2019
By: Boyd Byers

Reserve your spot now! This comprehensive, full-day seminar covers the latest employment law developments you need to know about to keep your organization compliant, as well as human resources best practices and strategies to make it an employer of choice. Sessions will be presented by Foulston’s experienced employment lawyers and a nationally known keynote speaker. Select from a variety of breakout sessions to customize your own schedule.

Featured Keynote Presentation:
Green Goldfish – Beyond Dollars to Drive Engagement and Reinforce Culture presented by Stan Phelps
Happy engaged employees create happy enthused customers. In this keynote, Stan Phelps will share the types of green goldfish – little extras for employees. Attendees will walk away with the knowledge of the key drivers of employee engagement.
Stan Phelps is a Forbes contributor, TEDx speaker, and IBM Futurist focusing on how customer experience and employee engagement can drive differentiation, increase loyalty, and create word of mouth in business.
Register now and learn more at www.foulston.com/employmentlawinstitute
 For more information call 316.291.9723. Be sure to register early! This seminar has sold out in previous years.
This program will be submitted for review of credit through the Society of Human Resource Management (SHRM), HR Certification Institute (HRCI), and Kansas and Missouri Continuing Legal Education Commissions.
March Madness Comes to Kansas
By: Boyd Byers

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

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

For most somewhat technologically adept members of society, the use of text messages to conduct business has become somewhat common.  It is an easy and quick means of communication.  It is often viewed more informally than an email or other written correspondence.  Putting aside all the standard warnings about the use of text messages for business purposes, HR personnel must now be wary of other more scary concerns. 

A human resources manager in the Chicago area recently reported receiving nude selfies from an applicant after making a conditional offer of employment to the individual.  As the story goes, the man indicated they were accidentally sent to the wrong person.  This does highlight the danger of using text messaging for official workplace communications.  My guess is the HR manager and the candidate had exchanged relevant work-related texts.  This led to the candidate confusing the phone numbers when sending his photos.

So next time you pick up your phone and contemplate texting someone about work-related issues, think twice.  Maybe it would be a better idea to send an email instead.

Kansas City Royals Face Hot Dog Liability
By: Jason Lacey

Sometimes we like to take a break from our core topics on this blog and bring you other law-related news of interest. 

In a case being watched closely by sports-law experts and t-shirt-cannon enthusiasts around the country, the Kansas City Royals may be on the brink of making new law on the issue of the liability of professional sports teams for injuries incurred by fans attending games.

News reports on the case are here and here. The basic facts are as follows:

While attending a game in September 2009, a fan was struck in the eye by a foil-wrapped hot dog thrown into the stands by the Royals's mascot, Sluggerrr. The resulting eye injury required the fan to undergo two surgical procedures and is alleged to have permanently impaired his vision. He sued for damages in excess of $20,000. After a trial in Jackson County, Missouri, the jury found for the Royals, but the Missouri court of appeals overturned that verdict, and the case is now on appeal to the Missouri supreme court.

Under a long-standing rule, professional sports teams are generally protected from liability for injuries incurred by fans as a result of things that happen in connection with the game itself. So, for example, fans cannot sue if they are struck by a foul ball, a broken bat, or an errant hockey puck. Fans are deemed to have assumed these inherent risks in attending the game.

But the law has never addressed whether that liability protection extends to injuries incurred as a result      Continue Reading...

Gaga Case Goes Bye-Bye
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...

Memorable Job Candidates
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...

What the NSA Learned When They Tapped My Phone This Week
By: Jason Lacey

“For years, intelligence officials have tried to debunk what they called a popular myth about the National Security Agency: that its electronic net routinely sweeps up information about millions of Americans. But since the disclosures last week showing that the agency does indeed routinely collect data on the phone calls of millions of Americans, Obama administration officials have struggled to explain what now appear to have been misleading past statements.” -The New York Times, June 11, 2013

*  *  *  *  *  *  *

Report #493849

Subject: Jason Lacey

Age: 37

Occupation: Attorney (or so he says)

# # #

Saturday 6/8, 12:45 pm: Met wife and children at Chick-fil-A for lunch. *Flag for possible Tea Party affiliation.

Sunday 6/9, 5:32 pm: Ordered pizza; cheese with no sauce. *Flag for possible un-American activity. (Who gets pizza without sauce?)

Sunday 6/9, 8:16 pm: Downloaded Angry Birds app.

Monday 6/10, 3:24 pm: Text from wife; daughter went to dentist to have cavity filled; went fine.

Monday 6/10, 4:52 pm: Text to wife; proposes to make pasta with tomato sauce for dinner. *Scratch flag for possible un-American activity.

Monday 6/10, 10:48 pm: Plays Angry Birds.

Tuesday 6/11, 12:30 pm: Text from wife; buys coffee at Starbucks. *Scratch flag for possible Tea Party affiliation.

Wednesday 6/12, 7:15 pm: Phone call with mother; needs to finish her tax return. *Flag for possible tax evasion conspiracy.

Wednesday 6/12, 7:19 pm: Plays Angry Birds.

Wednesday 6/12, 7:32 pm: Phone call with mother; she's getting a refund. *Scratch flag for possible tax evasion conspiracy.

Wednesday 6/12, 9:11 pm: Text to wife; stopped for speeding; 30      Continue Reading...

On Facial Hair and Flexible Spending Accounts
By: Jason Lacey

I have worn a beard for most of my adult life, and I appreciate a solid stand of men's facial hair. So I couldn't help noticing an article last week touting a growing industry in Turkey: Turkish mustache transplants. 

For a mere $5,000, the "follicly challenged" can have a cosmetic surgeon enhance their mustache or beard. The procedure is done under local anesthetic and takes only a few hours. In true medical tourism style, the procedures are being offered as part of "transplant packages" that may include additional amenities such as a beachside vacation on Turkey's Mediterranean coast.

If you're looking to boost your masculinity and catch a few rays in the process, this might just be the thing you've been waiting for.

That got me to thinking: This is bound to become wildly popular because - let's face it - who could resist a shot at the mustache of their dreams. Which means it's only a matter of time before we find an employee or two claiming reimbursement under a health FSA, HRA, or HSA for the cost of the procedure. It's medical, so it's covered - right?

Well, not so fast. 

To be reimbursed from a health FSA, HRA, or HSA, expenses generally must be for "medical care," and the tax code specifically excludes cosmetic surgery from the definition of medical care. What counts as cosmetic surgery? Any procedure that "is directed at improving the patient's appearance and does not meaningfully promote the proper function of the body or prevent or treat illness      Continue Reading...

Fun Final Four Facts
By: Jason Lacey

We interrupt our regularly scheduled programming to bring you this important news update . . .

Wichita is awash in black and gold this week as we proudly celebrate and anticipate WSU's appearance in the NCAA men's Final Four. Here are some fun facts to tuck away in case you need to drop some obscure knowledge on your friends and family as you gather to watch the game.

The history of WuShock. WuShock, the WSU mascot, was originally a nameless shock of wheat, used as a symbol for the WSU football team, known as the Wheatshockers. The mascot took on its first persona in 1948, and has evolved over the last 65 years from a scowling, no-nonsense intimidator into the grinning, wide-eyed fellow we know and love today. WuShock's most recent makeover came in 2006, shortly after Sports Illustrated identified Wu as one of college sports' worst mascots. (read more here)

Against all odds. A political statistician has been calculating the likelihood of success for each team in the NCAA tournament and writing about it in his blog for the New York Times. Before the tournament began, he put WSU's chance of reaching the Final Four at 1.3%. So I'd say they've done pretty well for themselves, all things considered.

What are their odds of winning it all now? You might think they've got a 1-in-4 chance (25%), since there are only four teams left. But when the teams are weighted to take into account their regular-season resumes and the quality of their prior wins in      Continue Reading...

The Day After the Election: A Recap of What I Learned on Election Day
By: Donald Berner

As most of the free world can attest, yesterday (and last night) was election day here in the United States, which is a very serious and somber process. It is on election day that we select candidates to serve all the way from local positions up to the President of the United States. These choices can have a major impact on how government interacts with employers and their employees over the following four years. 

This election day was much different for me than those in past years. I learned a lot by looking and listening as the election process was fed back to me through the eyes and ears of my children. My high school junior and 8th grader had strong feelings about who the right candidate for the job might be for President. The problem is they did not agree. Talk about partisan politics. It's hard enough to keep the normal sibling squabbles under control without tossing politics into the equation. 

While the older siblings were entertaining at some times and irritating at others, the 2nd grader brought the political process into a whole new light for me. On election night at the dinner table I was grilled by her about whether I had voted yet. I had not done so, which seemed to be a big deal even though the polling locations were still open for another ninety minutes (I like to slip in near closing in hopes it is quieter). Not only did I get chastised for not having exercised my right      Continue Reading...


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Jason Lacey, the Employee Benefits Guy
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