Friday, March 25, 2016

DOL's “Persuader Rule” goes live; unions rejoice


The U.S. Department of Labor has issued its long awaited Final Rule reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act, otherwise known as the “persuader” rule.

What does this mean for you? In summary, it means that if you engage an outside law firm or other consultant to provide advice, or to otherwise represent you concerning employee organizing, concerted activities, or collective bargaining activities, you must report that engagement to the DOL, and, therefore, also to the union.

Thursday, March 24, 2016

The class action is dead … long live the class action! #SCOTUS upholds “representative samples” for class certification


It’s been nearly five years since the Supreme Court decided, in Wal-Mart Stores, Inc. v. Dukes, that the claims of large groups of employees that involve differing calculations of damages must be litigatated as individual claims, and not as a class action.

At the time, and since, may pundits declared the wage-and-hour class action lawsuit dead (or at least with one foot squarely in the grave).

Earlier this week, however, the Supreme Court applied the paddled and shocked the class action back to life.

Wednesday, March 23, 2016

Employment Law Blog Carnival: The “Candy Cane Children” Edition #ELBC


People seem to like lists, so here’s one to kick off this month’s Employment Law Blog Carnival. Who is the greatest rock band of each decade (according to Jon Hyman)?

  • The 1960s — The Beatles (with apologies to the Rolling Stones)
  • The 1970s — The Who (with apologies to Led Zeppelin and the Clash)
  • The 1980s — U2 (with apologies to Guns N’ Roses and Talking Heads)
  • The 1990s — Nirvana (with apologies to Pearl Jam and Green Day)
  • The 2000s — White Stripes (with apologies to absolutely no one)

This month’s ELBC will focus on the latter, the White Stripes. They allegedly formed on Bastille Day 1997, and most certainly broke up five years ago. In between, they single-handedly saved rock ‘n’ roll.

Tuesday, March 22, 2016

Is your employee handbook a contract of employment? Well, does it have a disclaimer?


Employee handbooks come in all shapes and sizes. For example, some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. Some grant formal appeal rights to employees who are disciplined or terminated. And some set forth terms of compensation, benefits, and time-off.

Is your handbook a contract of employment, or a compilation of discretionary policy statements? The answer depends on whether your handbook has a disclaimer telling employees that they are at-will and cannot rely on the handbook as a contract.

Monday, March 21, 2016

Does HR understand their own personal liability for FMLA violations?


If you’ve ever held supervisor and manager training on any employment-law issue, you know the glazed-over expression of a group of individuals going through the motions. “Oh goody, we have training today. Here’s an hour of my life I’ll never get back,” is what you’ll hear around the coffee machine before they enter the training room.

Want to wake them up and ensure rapt attention? Hit them with the idea of individual liability. Under Ohio law, we have it for discrimination claim. It exists for wage-and-hour claims under the FLSA. And, last week, in Graziadio v. Culinary Institute of Am. [pdf], the 2nd Circuit Court of Appeals held that a manager or supervisor can be individually liable for FMLA violations.

Friday, March 18, 2016

WIRTW #405 (the “Norah live” edition)


This week’s musical highlight comes courtesy of the Cleveland School of Rock Jr. Headliners. What can I say? I’m either a proud dad or a shill for my kid.

Norah live.
Posted by Jon Hyman on Sunday, March 13, 2016



You can catch her live on April 3.


If you are interest in having your post featured in this month’s Employment Law Blog Carnival, email me your submission by Monday. The carnival goes live March 23.


Here’s the rest of what I read this week:

Thursday, March 17, 2016

NLRB judge protects the lone wolf in Chipotle social-media firing decision #RaganDisney



I spent last Thursday and Friday in Disney World. It wasn’t a pleasure trip, although Epcot was toured during some down time. I was invited to speak at this year’s Ragan Social Media Conference, which, I have to say, was one of the best organized and produced events I’ve ever attended. It was a day-and-a-half of cutting edge information on using social media for marketing and PR. My session covered how employers can protect their brands from employee social-media missteps. It’s always fun to watch a room full of non-employment lawyers’ mouths gape when I start talking about the NLRB.

So, to anyone out there who was at my session, Chipotle Services LLC, decided earlier this week by an NLRB judge, is mandatory reading.

The case involves an employee fired by Chipotle after he took to his personal Twitter account to voice his displeasure about the state of his wages and other working conditions at Chipotle. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee replied, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another, directed at Chipotle’s communication director, concerned a lack of pay for snow days.

The NLRB judge had little trouble concluding that Chipotle had fired the employee for engaging in protected concerted activity: speech about his wages, benefits, or other terms and conditions of employment between or among employees.

I agree that the NLRA protects tweets about wages and days off. Pay attention, however, to how this judge defines “concerted”, as it is becoming apparent that one employee, voicing his concerns to about work on social media, without any engagement from co-workers, is sufficient to constitute “concerted” protected activity:

Kennedy’s tweet concerning snow days was directed to Chipotle’s communications director but visible to others; Kennedy’s other two tweets were in response to customer postings, and likewise visible to others. All these postings had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific. They did not pertain to wholly personal issues relevant only to Kennedy but were truly group complaints. I conclude that Kennedy’s postings constitute protected concerted activity.

In other words, as long as an employee is addressing a group complaint, the activity is concerted, regardless of whether any other employee engages.

Earlier this year, I predicted the breadth of the NLRB’s coverage of “concerted” in social-media cases:

If, as the Board suggest, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social-media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted.

So, we have another social media case in which an employee triumphs over an employer based on a liberal interpretation of NLRA protections. Fear not employers, for this case has a silver lining. According to Jane von Bergen of the Philadelphia Inquirer, the employee has offered to accept food vouchers in lieu of back pay: “You cannot deny that their food is delicious, but their labor policies were atrocious.” If only every case was that simple to resolve.

Wednesday, March 16, 2016

The 10 essential cyber security training issues for your employees


Do you know what the biggest threat is to your company’s cyber security? I’ll give you a hint. It’s not the middle-aged man in yesterday’s John Oliver video.

It’s your employees. Cyber attacks target the weakest link, and more often than not that weak is your employees.

According to CFO magazine, nearly half of all data breaches result from careless employees. Whether it’s an employee using a company-issued laptop on an unsecured wifi network, or an employee losing a password-unprotected iPhone, your employees present the greatest risk to the security of your company’s network and data.

What can you do about it? Train your employees. They need to understand the risk of their carelessness, and the steps they can take to mitigate that risk.

Here are 10 issues about which you should be training your employees right now to limit your company’s cyber exposure.

Tuesday, March 15, 2016

The best argument you’ll hear on why you must train your employees on cyber security


This fake Apple ad, from Last Week Tonight with John Oliver, is the best argument you will hear on why training your employees on cyber security is perhaps the most important thing you can do for your business in 2016.

Come back tomorrow, when I’ll discuss the 10 cyber-security issues about which you should be training your employees right now.

Monday, March 14, 2016

Video killed the lawsuit star


If a picture tells a thousand words, then how many does a video tell?

Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.

Friday, March 11, 2016

WIRTW #404 (the “home is where is art is” edition)


We just added this piece of art to our home.

FullSizeRender

This particular painting is special to our family. If you look closely…

IMG_7010

The artist, Anthony Kleem, likes to include friends and family in his paintings, and he happens to love our kids. How could we not buy it?

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

OSHA & Workplace Safety

Thursday, March 10, 2016

Does OSHA provide a defense for employee misconduct? It depends.


As the saying goes, you can’t teach stupid. No matter what safety measure you put in place, your employees will do stupid things at work, and sometimes they will get hurt.

Wednesday, March 9, 2016

Court rejects customer’s claims based on harassing Facebook posts by employees


50aa21950686216b3bbc23d82d32556fConsider the following scenario. An employee makes offensive posts on his personal Facebook page about one of your customers, which include the following:

“I seen Maurice’s bougie ass walking kahului beach road … nigga please!”

A number of other employees comment on or like the post, including a comment to “run that faka over!!! lol.”

When the customer learns of the posts and comments, he complains. You investigate and fire the offending employees.

Case over, right? Not so fast. The customer sued the employer for negligence relating to its supervision, retention, and training of the offending employees.

Tuesday, March 8, 2016

The EEOC says, “Preventing Discrimination is Good Business”


Are you a small-business owner? Do you have problems understanding your obligations under the federal employment-discrimination laws? Then the EEOC is here for you.

Last week, the agency published a one-page face sheet, entitled, “Preventing Discrimination is Good Business” (available in English and 29 other languages, such as Amharic, Marshallese, or Tagalog … really).


Monday, March 7, 2016

NLRB narrows employer property rights in key solicitation decision


One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time.

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?

Friday, March 4, 2016

WIRTW #403 (the “royals” edition)


One of the benefits my kids get from going to a K – 12 school is the experience of varsity high-school sports. Don’t get me wrong, Lake Ridge Academy is far from an athletic powerhouse. The school is much more focused on academics and fine arts than sports. However, once in a while, a team catches fire, and, when it does, my kids get to hitch a ride.

Right now, the girls’ basketball team is that team. Tomorrow night, we play Cornerstone Christian (a team we beat in January) for the right to go to Columbus for the State Division IV Final Four. It will be the school’s first ever trip to the Elite Eight in any sport. The Elyria Chronicle-Telegram recaps the thrill of last night’s 41 – 40 come-from-behind victory over the state’s top ranked team.

Go Royals.

IMG_6986

Also, I’d be remiss if I didn’t say a thank you to the student from Perry High School who, after I arrived to a very full parking lot, let me park in the press lot after I told her I was a blogger. This is the post I promised you.

Here’s the rest of what I read this week:

Thursday, March 3, 2016

Is it illegal to “right size” employees to avoid ACA obligations?


In the past six months, I’ve had more questions from clients about group health insurance than I’ve had in the first 18 years of my practice combined. All of the questions start the same: “Our health insurance premiums are out of control. How do we…?”, finished by some inquiry about moving older workers to Medicare, or shifting high-cost workers to the exchange, or some other machination to avoid the Affordable Care Act.

The reality, however, is that the ACA makes it pretty damn hard to move high-cost employees off of your health insurance to combat out-of-control (and still rising) insurance costs.

Dave & Buster’s thought it had the answer—reducing employees from full-time to part-time.

Last month, however, the district court hearing an employee-challenge to this insurance “right sizing” handed round one to the employees.

Wednesday, March 2, 2016

EEOC sues employers challenging sexual orientation discrimination as Title-VII sex discrimination


Yesterday, the EEOC filed two lawsuits, each claiming that an employer’s discrimination against an LGBT employee violated Title VII’s prohibition against sex discrimination.

From the EEOC’s press release:

Tuesday, March 1, 2016

DOL looks to move the needle on paid sick leave


00809500.JPG00717149Last week, the Department of Labor announced proposed regulations that would expand paid sick leave to the employees of federal contractor and subcontractors. These regulations would implement Executive Order 13706, which President Obama announced last year. According to the DOL, these regulations will provide paid sick leave to 828,000 employees.

Given that our country has over 121 million employees, why does it matter than a scant 0.68% of the American workforce has access to federally mandated paid sick leave?

Monday, February 29, 2016

Happy Leap Day (or, Happy Exempt Employees Work Free Day)


Today is Leap Day, an every-fourth-year occurrence that adjusts for the astronomical anomaly that it takes the Earth 365.25 days, and not 365, to circumnavigate the sun.

What does this have to do with employment law, you might ask?