February 2013 Archives

February 28, 2013

GUEST POST: The Budding Burden of BYOD - Legal Issues Abound

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Shannon Dorvall. Shannon is a practicing Los Angeles criminal attorney. She is a graduate of the University of Montana law school, and has argued cases in front of Ninth Circuit Court of Appeals and the Supreme Court. When she isn't writing about law or actually practicing it, Shannon enjoys perfecting her cooking and catching up with a good book

(Want to guest blog at The Employer Handbook? Email me).

Continue reading "GUEST POST: The Budding Burden of BYOD - Legal Issues Abound" »

February 27, 2013

A new workplace social-networking privacy bill surfaces in Philly

Thumbnail image for philadelphia.jpg

Philadelphia may be poised now to follow in the footsteps of other states and municipalities that have passed similar laws to regulate what appears to be a non-existent problem.

I'll lay it out for you after the jump...

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February 26, 2013

Repeatedly discussing your employee's sex life with her is bad, you guys.

Bedroom MitchamDuh, right?

Still, a federal appellate court recently reminded us (here) that, indeed, bad things happen when, every week for several months, a male supervisor tells his female subordinate that her husband is "not taking care of [her] in bed."

Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was "not taking care of [her] in bed" is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin's workplace, effectively changing the terms and conditions of her employment....The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.

I'll use this obvious blunder to raise a subtle screw-up of which you may unwittingly be guilty. Check the complaint procedure in your non-harassment policy. Does it provide that an employee who feels that he/she is being harassed must report the harassment to an immediate supervisor or manager? Because that wouldn't do much good in the situation discussed above. 

Instead, make sure that your complaint procedure affords employees a variety of reporting options (e.g., a direct supervisor, another supervisor, Human Resources, etc.).

February 25, 2013

Yahoo! has a new no-telecommuting rule. Here's why it may be unlawful.

yahoologo.jpgOver the weekend, I read this article from Kara Swisher on AllThingsD.com, in which she reports that Yahoo!, under its new leadership, will implement a no-telecommuting rule, effective June 1.

Ms. Swisher posted a copy of the internal Yahoo! memorandum to its employees, in which the company underscores the "critical" need to be at the office versus working form home where "speed and quality are often compromised."

Sounds good in theory. But I have a little monkey-wrench.

How about the Americans with Disabilities Act?

Under the ADA, an employer must provide a reasonable accommodation to disabled employees where doing so will allow them to perform the essential functions of their job. As I've written here before, telecommuting may be a reasonable accommodation for an employee with a disability.

How can a business determine whether telecommuting is a reasonable accommodation? Well, it all begins with an individualized assessment of the employee and an interactive dialogue to discuss whether telecommuting is reasonable under the particular facts and circumstances affecting the employee. Conversely, generalizations and other other inflexible attendance rules, have gotten other employers into trouble.

Maybe Yahoo! has a reasonable-accommodation policy that will trump its new edict. Otherwise, its new rule may be a recipe for disaster.

For more on telecommuting as a reasonable accommodation, check out this EEOC resource.

February 22, 2013

@Eric_B_Meyer on DriveThruHR #dthr


Have you checked out DriveThruHR yet?

DriveThruHR is the baby of Bryan Wempen and William Tincup, a half-hour radio show on which these two HR leaders, along with a guest, discuss the latest trends, thoughts and sentiment within the industry.

Yesterday, I was on DriveThruHR, Human Resource's #1 Daily Radio, talking social media and the workplace, Americans with Disabilities Act, hockey, and gettin' freaky with the mashed potatoes. Yeah, that's right. Hockey. 

Have a listen...

Listen to internet radio with
Wempen and Tincup and Nisha on Blog Talk Radio
February 21, 2013

8 employee-handbook tips from Django Unchained. Yes, seriously.

My buds over at TLNT.com are running a series of movie-themed HR posts leading up to next week's Oscar Awards.
February 20, 2013

Supreme Court to determine what "clothes" are under the FLSA.

Korrektionsschutzbrille FrontansichtWith a title like that, this post could only arouse the interest of an employment lawyer. 

But, all of y'all should pay attention.

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Putting on and taking off (or, in legalese, "donning and doffing") protective clothing is considered a principal activity. However, the FLSA expressly provides that employees don't get paid for time spent "changing clothes" if a union contract says so.

The question that the Supreme Court must answer now, in this case, is what the heck are "clothes" under the FLSA?

  • Four circuits hold that "clothes" includes anything that can be worn on the person, even "accessories." Ah yes, clothes.

  • Another circuit has ruled that "special protective gear different in kind from typical clothing" is not clothing. Clothes?

  • And yet another circuit held that "clothes" does not include earplugs or safety glasses. Nice clothes, but no "clothes."

In any event, sometime later this year, maybe we'll get an answer to this question. 

For those of you in a unionized environment, you'll want to tune in to make sure to get this right to avoid violating the Fair Labor Standards Act.

February 19, 2013

Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?

CoyoteUgly.LYH No body shots here; just a swift federal court kick to Coyote Ugly's social-media jewels.

You get the ice. I'll pour a double and serve up the details after the jump...

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Continue reading "Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?" »

February 15, 2013

GUEST POST: The ADA and Test-Taking

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's my colleague, Katharine Hartman. Katharine is an associate in Dilworth Paxson's Labor & Employment Group, but also asked that I give a little shoutout to our new Test Publishing, Certification and Licensure Group.

So holla!

After the jump is a little cross-over between the two. Hope you like it.

(Want to guest blog at The Employer Handbook? Email me).

Continue reading "GUEST POST: The ADA and Test-Taking" »

February 14, 2013

Bitter Barista blogs his way out of job by smack-talking customers, boss


Facebook firings have been so en vogue recently. See, Exhibits A, B, and C.

But, let's not forget that there are many other social-media platforms off of which employees can belly-flop into the unemployment pool.

{That image seemed somehow less harsh in my head. Now that I see it on screen. Oh well...}

Last month, you had the waitress who posted the receipt of a non-tipper on Reddit.

But the latest misfire is near and dear to my heart. A Washington coffee-shop employee -- of course -- has lost his job because of his snarky blog comments about customers and his boss, so reports the Seattle Times.

According to the article, the blogging barista was pouring joe to "help make ends meet while he pursued a career as a hip hop artist going by the name 'Spekulation.'" Since then, Spekulation blogged, "My ex-boss thinks the website is gonna stop because I don't work there anymore. Man, I didn't even work there when I worked there!"

Anyone here think the coffee shop overreacted? 

Yeah, me neither.

February 13, 2013

Will Congress expand FMLA to include bereavement leave?

fmla.jpegYesterday, we addressed (here) the possibility of Congress taking up paid sick leave shortly.

Now, there is word that the Parental Bereavement Act, last considered in 2011 as an amendment to the Family and Medical Leave Act, is back on the table.

Last week, in this press release, Senator Jon Tester (D-MT), announced that he and and Congressman Steve Israel (D-N.Y.) will champion the effort to change the FMLA to allow  parents grieving from the death of their son or daughter to receive up to 12 weeks of job-protected time-off.

You can find a copy of of the bill here

February 12, 2013

Keep an eye out for a new paid-sick-leave bill in Congress


Coming soon, so says Senator Tom Harkin here.

Known as the "Healthy Families Act," this bill was introduced in the House in 2009, and again in both the House and Senate in 2011, but never got much traction.

But now, in addition to Senator Harkin, former President Bill Clinton is stumping for paid FMLA.

And, recently, steps have been taken to expand protections under the Family and Medical Leave Act for military families and airline flight crews.

Given the Republican majority in the House, I'd be surprised if a paid FMLA bill made it to President Obama, who would surely sign it.

February 11, 2013

Pennsylvania nears a game-changing whistleblower-law amendment

Can you blow my whistle baby, whistle baby.
Let me know.
Girl I'm gonna show you how to do it.
And we start real slow.
You just put your lips together.
And you come real close.
Can you blow my whistle baby, whistle baby?
Here we go.

Concerned with the limited scope of Pennsylvania's Whistleblower Law, the existential activist Flo Rida wrote the 2012 hit Whistle to raise awareness and trigger a potentially huge change in the law.

{Editor's Note: No he didn't. Not at all.}

Still, last week, the Pennsylvania House of Representatives unanimously passed this proposed amendment to the Whistleblower Law, which would expand its scope to include employees of any employer that "receives money from a public body to perform work or provide services."

Presently, the law prohibits retaliation against only public employees who, in good faith, report (or are about to report) either:

  1. An employer's conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.

  2. A violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.

On top of expanding the scope of whistleblower protection in PA, the legislation would also increase penalties on individuals who violate the law's provisions. Individuals found guilty would face a fine of $10,000 (currently $500) and would be suspended from public office for a period of seven years (currently six months) for preventing disclosure of criminal activity.

The bill now moves to the PA Senate, where it now sits in the Labor and Industry Committee, for consideration.

February 8, 2013

Facebook photos from a Mexican vacation foil an employee's FMLA claims

coronabottlebeach.jpgI have three kids, ages three and under. So a vacation for me is the half hour of quiet time I get in the bathroom every morning. 

It's not like the old days. 

I remember Spring Break '97 in the Bahamas. Sun, beach, water sports, and a couple of adult beverages.

It was kinda like the Mexican vacation that Carol Lineberry, a former employee of Detroit Medical Center, took back in 2011. These pictures she posted on Facebook -- we didn't have Facebook back in the day, so I'll deny everything. EVERYTHING! -- show that Ms. Lineberry is having a blast in Mexico.

Did I mention that Lineberry took this trip while taking leave under the Family and Medical Leave Act? Of course, she did. And now she's on The Employer Handbook.

See how that works? Like a Zoolander gasoline fight, trust me, this won't end well for Lineberry. No, it won't.

Read more after the jump...

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February 7, 2013

Paid Sick Leave In Philadelphia - Round 2

philadelphia.jpg Reporter: Rock, you got anything derogatory to say about the champ? 

Rocky Balboa: Derogatory? Yeah. He's great.

{Just needed to get that out of my system}

Guess what's back in Philadelphia City Council. It's the "Promoting Healthy Families and Workplaces" Bill, otherwise known as paid sick leave.

Here is a breakdown of the bill:

  • Who is covered? Philadelphia businesses employing six or more people.
  • How does sick time accrue? Employees would accrue a minimum of one hour of paid sick time for every 40 hours worked in Philadelphia, up to a maximum of 56 hours of paid sick time in a calendar year. (Employees in business of 6-10 employees accrue a maximum of 32 hours of paid sick time in a calendar year).
  • When does sick time begin to accrue? When employment begins. However, employees would not be able to use any paid sick time under 90 days later, at the earliest.
  • What can employees use sick time for? Themselves, sick family members, and absences due to domestic abuse, sexual assault or stalking.
  • Does sick time carry-over from year to year? Yes, but it can't exceed 56 hours (32 hours) in any one year.
  • Can an employment implement more generous paid sick leave policies? As far as the City is concerned, please do.
  • What's the penalty for violating the law?  An employee may file interference or retaliation claims in court. A prevailing plaintiff gets actual damages, an equal amount in liquidated damages, and reasonable attorney's fees.

Now some of you may be thinking, "Eric doesn't Philadelphia already have paid sick leave?" Yes, but only for City employees and certain employers who do business with the City. More on that here.

Others of you may be thinking, "Eric, this Promoting Healthy Families and Workplaces bill sounds awfully familiar. Where have I seen it before?" You saw it here, silly, back in 2011. City Council proposed a very similar version of the bill and Mayor Nutter vetoed it. Since that time, however, Seattle, Washington and the State of Connecticut have mandated paid sick leave. 

Will Philadelphia join the ranks?

You'll just have to click here everyday -- EVERY day -- to find out.

February 6, 2013

Employees who no-call/no-show for a month lose FMLA lawsuits

fmla.jpegBefore going any further, allow me to wish a Happy Belated 20th Birthday to the Family and Medical Leave Act

What can I say? I plumb forgot. To atone, I got Fammy Med a Walkman. (Kids, that's what we used to listen to music in 1993. It doesn't walk and it's not a man. But it did play my mix tapes -- sigh). 

Next year, to celebrate the big 2-1, drinks are on me. Sizzurpbombs! Remy Martin Cognac Louis XIII. 

For today, we'll do an FMLA post in tribute.

A few weeks ago, I posted "3 essential FMLA tools for your HR-compliance arsenal," one of which was to have a publicized attendance rule and enforce it.

That post immediately crossed my mind as, yesterday, I read these undisputed facts from a recent Eighth Circuit decision:

  • The plaintiff missed work for the entire month of February 2008.

  • Although the plaintiff later claimed her depression caused her absences, she never told her employer that she was ill (or gave her employer any real clue that she needed FMLA leave).

  • The plaintiff failed to use her employer's call-in procedure for her February absences -- all of them. (This notwithstanding that the plaintiff had her employer's call-out number programmed into her phone and had used it over 100 times before).

  • The employer's rule was three days of no-call-/no-show is a voluntary resignation.

Here's the deal under the FMLA, folks. Most employers -- really, everyone other than Carnac the Magnificent and Nate Silver -- are not clairvoyant.

If an employee needs FMLA, the employee needs to let the employer know that. The general rule is 30 days' notice. However, when an employee's serious health condition occurs out of the blue, the employee must provide notice of the need for FMLA leave as soon as practicable -- as opposed to, you know, never, like the plaintiff here.

And that was the plaintiff's demise here. No FMLA notice means no FMLA leave. No FMLA leave means the plaintiff needs to abide by the employer's work rules regarding call-outs. No call out for 29 days means the plaintiff ends up on this blog as a cautionary tale.

I live to give.

February 5, 2013

National Right to Work? Plus, SCOTUS to take up Obama recess appointments

fat cat_1In just over half the States in America, if a majority of your co-workers elect to have a union represent them at work, then you must become a member of the union too -- whether you like it or not. Nonmembers who object to that requirement must still may union dues. However, in nearly half of the USA (24 states, to be precise) employees in a unionized workplace may decide for themselves whether to join the union. This is known as "right-to-work." Employees who exercise this right are not required to pay union dues.

Late last year, Michigan became the newest Right-to-Work State. And, last week, Senator Rand Paul (KY-R) reintroduced the "National Right-to-Work Act," described as a bill to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities. This bill would amend both the National Labor Relations Act and the Railway Labor Act to make "right-to-work" the law in all 50 states.

You can view a copy of the bill here.

Meanwhile, word hit yesterday that the Supreme Court has already been asked to weigh in on the constitutionality of President Obama's recess appointments to the National Labor Relations Board. Last month, a federal appellate court ruled that the appointments were unconstitutional. Lauren Smith at Roll Call has more on this developing story here.

February 4, 2013

Case of Borat Discrimination for Make Benefit Glorious Resources of Humans


A federal court (opinion here) has determined that a Jordanian employee nicknamed "Borat" by his co-workers can proceed to trial on his claims of race and national-origin discrimination.

Yeah, I know what you're thinking. Borat isn't from Jordan. He's from Kazakhstan (NSFW). So how can Borat the Jordanian claim discrimination?

Readers of this blog know that mistaken religious discrimination is illegal. And, in the Borat example, so is mistaken national-origin discrimination. Indeed, it can still happen even if the Jordanian employee's harassers didn't know he was from Jordan. As the court noted, it is enough for a plaintiff to show that he was treated differently because of his foreign accent, appearance or physical characteristics.

And if the harassers knew that the Jordanian employee was from Jordan? The Borat comments could still tee up a race-discrimination claim if the harassers intentionally conflated Arab and Kazakh identities. Otherwise, the teasing would make so sense.

VW may be able to get away with joking about foreign accents during the Super Bowl, but don't tolerate employees who engage in similar workplace hijinks.

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February 1, 2013

GUEST POST: Shocking Consequences of Social Media In The Workplace

guestblogger.jpgThis week has been particularly dooziful -- that's a word, look it up -- with employee social media tomfoolery. You've got the employee asking to be fired on Facebook, HMV employees hijacking the company Twitter account to live tweet firings, a restaurant employee posting snarky customer meal receipts and, two words, one hashtag, #CrunkBear (NSFW).

So, the timing couldn't be better for our guest blogger here at The Employer Handbook. John Barrett is a writer and employment law activist. He enjoys spending time with his family and keeping up on relevant issues for employees' conditions in the workplace. He is representing employmentlawlayers.com with his writing.

After the jump, John brings you "Shocking Consequences of Social Media In The Workplace."

(Want to guest blog at The Employer Handbook? Email me.)

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