Employment Law | The Proactive Employer

Employment Law Blog Carnival: The “Spring is in Bloom” Edition

Mar 202013

Today marks the first day of spring. Our green spaces will soon be buzzing with birds, bugs and blooms. We’ll see more sunshine and the days will get longer. Spring cleaning, planting, and yard work will soon be on our weekend agendas.

For some of us, weekends are the only time we have to get our chores done. This is especially true for those with long commutes to work. Most people commute to work, but some travel farther than others. In his post entitled New Census Data on Commuters, Phil Miles reviews a new Census Bureau survey about commuters. According to the data, 8.1% of US workers have commutes of 60 minutes or longer. Nearly 600,000 full-time workers had “megacommutes” of at least 90 minutes and 50 miles.

When I was commuting by train, I loved looking out the window and seeing the landscape becoming greener by the day. I would try and identify as many plants as I could. When I spotted N. pseudonarcissus (wild daffodils) and S. canadensis (bloodroot), I knew spring was here. While you may not remember the scientific names for spring flowers, you should take the time to learn the names of your employees. In his post entitled Knowing Your Employees Is More Important Than You Think, Michael Haberman talks about why you should take the time to get to know your employees beyond their company existence. He frames it in terms of union avoidance, but it’s good advice for all employers, irrespective of organizing efforts.

As a child, I often engaged in the spring ritual of counting robins. These days, it seems there are more new employment laws than spring robin sightings. Ari Rosenstein writes about changes to California law regarding employees’ rights in accessing their personnel records, fixed salaries and overtime, and social media. You can read about the details in his post entitled California Employment Law: 3 New Laws for 2013. Robert Fitzpatrick writes about Recent Legislative and Regulatory Developments Regarding Non-Competes. His post summarizes six of the most significant developments during the last year. In her post entitled Council Passes Paid Sick Leave Bill, Crystal Spraggins writes about a new law in the City of Philadelphia requiring paid sick leave for all full-time and part-time employees. John Fullerton writes about an “important seal of approval” for mandatory class action waivers in the financial services industry. In his post FINRA Decision Permits Class Action Waivers, he outlines reasons why now may be the time for firms to consider class action waivers in their arbitration agreements with both customers and employees. If you find yourself in litigation, Eric Meyer draws on the film Point Break to illustrate the confidentiality of settlement offers in his post 100% Pure Settlement Offer? If Not, It May Be ADMISSABLE… AT… TRIAL!

After all of these updates, you may be longing for the simpler days of just counting robins. Mario Bordogna misses the simpler days before the headaches created by technology in the workplace. In his post entitled How the Need for a BYOD Policy Can Make Human Resources Begin to Yearn for the Olden Days, he talks about the pros and cons of a BYOD (Bring Your Own Device) policy, and offers some key points employers should consider when deciding whether this kind of policy is right for them. Technology also means that every one of the NCAA basketball tournament games will be available live online. In his post entitled Stop The Madness, Mark Toth outlines three approaches for dealing with March Madness. He has some great recommendations on how employers can minimize productivity and IT problems and embrace the madness!

Technology lets us stay connected no matter where we are. We can be outside, perhaps at a union protest, and still check our Twitter feed and post Facebook updates. One employee who was protesting a new work schedule was terminated for ”engaging in activity constituting or appearing to constitute a conflict with the interest of the company.” In his post Chrysler Terminates Employee for Conflict with the Interest of the Company, John Holmquist discusses this termination, and warns that in light of recent NLRB activity, employers should review their employee conduct policies.

If outdoor union protests aren’t your thing, you can still enjoy the spring weather by opening the windows and doors. You may even spot some ladybugs on your screens! Just be careful they aren’t peering in, stealing your login information, and turning it over to current and prospective employers… Jon Hyman wants to know Are Employers Really Asking for Social Media Logins and Passwords? He’s conducting a survey to learn whether employers are insisting on social medial logins and passwords, or if it’s just a bunch of hype by news media and special interest groups. There are some situations, however, where employers can access this social media information legally. Heather Bussing outlines How Employers Can Still See Employee Social Media Accounts in situations of investigations, employer-provided devices, and employer policies.

Spring is the time of renewal, and a great time to refresh employer policies. A great place to start is with your hiring practices. Janette Levey Frisch brings us the inside story on Background Checks and the FCRA: A “Roadmap” for Employers and Background Checks and the EEOC: Navigating the Minefield. Mitchell Quick reminds us that it’s important to stick to those policies and procedures once they’re set. In his post entitled No Good Deed Goes Unpunished, he reminds us of the dangers of bending the rules to do “good deeds” – it rarely works out favorably. If one of your employees isn’t performing up to standards, disciplinary action may be required. Timothy Eavenson discusses the “Last Chance” Agreements: A Good Tool Misused and cautions employers against making these agreements overly broad. His key takeaway: you can’t require employees to waive their right to file a claim of discrimination based on an adverse employment action that may happen in the future as a condition of keeping their jobs now. Donna Ballman reminds us that you don’t have to sign everything that an employer puts in front of you. In her post Employees: You Have the Right To Say No, she outlines a variety of situations, like termination / resignation / severance, admission of a crime, and polygraph tests, where employees should think twice before signing.

Spring 2013 marks several milestones in employment law. April 9 will mark the 17th anniversary of Equal Pay Day, the day symbolizing how far into 2013 women must work to earn what men earned in 2012. In her post entitled Pay Gap? Yes. Discrimination? Rarely. Robin Shea points out that as the 50th anniversary of the Equal Pay Act approaches, there is still controversy as to the source of the gender pay gap. But according to Robin, one thing is incontrovertible: the gap is not the result of discrimination.

Also this spring, the FMLA celebrates its 20th anniversary. To mark this milestone, the Department of Labor recently conducted a study on how FMLA has impacted employers, workers and their families. Compensation Cafe has a review of the key findings of this survey in a post entitled 20 Years Later, Is FMLA Working? Based on the results of this survey, the DOL concludes that “it appears that employee use of leave and employers granting and administration of leave has achieved a level of stability.” But even after 20 years, FMLA still poses challenges for employers, and the application of FMLA is still being litigated. Randy Enochs talks about FMLA interference, FMLA retaliation and failure to accommodate under the ADA in his post entitled 7th Circuit Holds Light Duty is NOT a Right Employee Can Assert Under FMLA. The upshot is that FMLA is not always as simple as it may seem.

If you submitted a link for the carnival and do not see your entry here, that is likely my error. Please send me your submission again and I will add it.

Message from God Prompts Alleged Wrongful Termination

employment law No Responses »

Feb 012013

As a result of a supposed message from God, one long time human resources professional was fired after a mere two weeks working in her new position.

Isabel Perez, who had been employed in HR for 15 years at the time she accepted a position as HR Director for Ashley Furniture Home Store, is married to a woman and claims that her manger fired her based on her sexual orientation stating that God told her to after she noticed a sticker in support of gay rights on Perez’s vehicle.

Surprisingly, in many states, it is legal to fire someone for being gay. However, in Perez’s favor, New Jersey is not one of them and she has decided to file suit.

Perez, who began working for Ashley in 2011, states that even in her first interviews she suspected that her sexual orientation could pose an issue. During the interview process, she apparently was questioned about the ring on her finger and inquiries were made about her view of hiring gays and African Americans.

At the time, Perez openly voiced her beliefs regarding equal employment but dodged questions regarding her marriage. While she admits, “It was uncomfortable,” she says. “As a human resources person, you think, ‘I’ll be able to change the culture…this is a point I could bring up later and discuss.’”

Perez was not successful in changing the culture and attitudes within the company and in her extremely short tenure was given gender and race specifications for job openings. She claims to have been directed by executives to hire only women or white people for certain jobs and to avoid hiring gays or lesbians.

Immediately objecting to the stipulations, she was told that maybe she didn’t fit in. In what may have been the final straw, Perez was warned, “you won’t last here,” by an employee processing her human resources paperwork which indicated that she had a female partner.

Not long after that, the chain’s director of People Services and Development, Kathy Martin, spotted a Human Rights Campaign sticker on Perez’s car, and questioned Perez about it. During the conversation, Martin stated that she needed to speak to God about the matter.

The following day, just two weeks into her employment, Perez was fired and told by Martin in a meeting between the two and a sales manager that God had spoken to Martin and that while the termination was not performance related and that Martin believed Perez could “easily manage the entire department,” she just didn’t “fit the culture” and that her “beliefs just don’t fit.”

“I had just given up everything to join an organization, thinking I could change the culture,” says Perez, who believes that she was retaliated against for standing up to discriminatory comments and standing up for her own sexual orientation.

Perez has acquired a new sense of purpose through her ordeal. In addition to filing suit in New Jersey, where it is illegal for private employers to terminate an employee solely on their sexual orientation regardless of the employer’s beliefs, she plans to bring awareness to the fact that there are no federal laws protecting gay, bisexual, and transgender Americans. She adds, “I have to make a difference within the human resources community.”

10 Reasons To Fire The Nanny

employment law No Responses »

Dec 182012

Today’s post comes from Renee Gardner of nannyneeded.org. For more information about federal laws governing domestic service employees, visit the Department of Labor’s Wage and Hour Division.

After braving the battlefield that is hiring a new nanny, it’s hard to imagine asking your nanny to leave before her contract is completed. There are, however, many reasons why it can become necessary to do so. For nannies embarking on a new post or those who are presently in one, consider these 10 reasons why parents may opt to end a nanny contract earlier than planned:

Failure to Perform as Promised – An eager nanny that exaggerates her abilities during the interview process may find herself without a post as her employers discover her dishonesty. It’s important to be up front and completely honest regarding past experience and working habits during the interview to avoid this scenario.
Breaking of Nanny Agreement – The nanny agreement is an important part of the working arrangement between parents and their childcare provider. These contracts are designed to protect both parties, and failure to adhere to the agreement can cause great strife for both a nanny and her employers. All responsibilities and expectations should be clearly outlined prior to a nanny’s first day on the job, and then carefully observed to prevent turnover.
Personality Clashes – Despite the best efforts of a nanny and the family that employs her, there are times when people simply can’t get along or work together constructively. In this case, there may be no other choice but to end the contract and begin anew.
Substance Abuse and Lifestyle Choices – Nannies who abuse drugs or alcohol, or lead a lifestyle that interferes with her work performance, can expect to be met with disapproval from her employers. Trusting a relative stranger to care for their children is a difficult choice for many parents as it is, even when the nanny in question comes with impeccable references and displays model behavior. Nannies who display questionable morals are justifiably difficult to trust, and as such may be released from their responsibilities before the end of their contract.
Family Moves Away – Should a family be forced to relocate unexpectedly, it may not be feasible to pay for the moving expenses of their nanny. Depending on the situation and the nanny’s ability to move, the contract could come to an unexpected end despite the nanny’s great performance and satisfaction with her job.
Loss of Employment – Oftentimes, nannies are employed to provide childcare due to both parents working outside of the home. Should one parent lose their job, the necessity of employing a nanny may be one that can no longer be justified, as the need for childcare has diminished and the resources to meet the nanny’s salary have been reduced.
Suspicions of Abuse – The rise in popularity of nanny cams and other electronic monitoring devices has led to a surge in dismissals after suspicions of abuse have been confirmed. With most parents, the suspicion alone is enough to merit dismissal.
Laziness – Families generally choose to engage a nanny because they want their children to receive attentive, hands-on care that they might be denied in a large daycare facility. Discovering that a nanny is negligent or is uninterested in interacting with her charges is one of the many reasons for parents to dismiss a childcare provider.
Failure to Enforce House Rules – Though nannies may not always agree with their employers’ rules and parenting style, it’s important to remember that your charges are not your children. House rules that are put in place by your employers must be followed unless you feel that they are abusive, in which case you should contact the proper authorities.
Jealousy – When parents feel as if their children love the nanny more, they can become quite jealous. There are also times when, justified or not, one spouse feels as if the interaction between their partner and the nanny is inappropriate. These feelings of jealousy often result in a loss of employment.

Personality clashes or unfounded suspicions of improper behavior are simply unavoidable in some cases; however, doing your best to live up to your employers’ expectations and avoiding any situation that could cause trouble is your best line of defense against these allegations.

Fired for Failing to Get Flu Shot

employment law No Responses »

Nov 302012

Germs might not be the only thing you need to worry about if you decide not to get a flu shot.

Just ask one of the 150 employees who were fired from a Cincinnati-based health center the Wednesday before Thanksgiving for not getting the vaccine.

The center, TriHealth, has a policy that each individual of its more than 10,000-person staff be vaccinated against the flu. The health center was offering the vaccine free of charge on-site and gave workers a month in which to comply with the mandate prior to a November 16th deadline.

Apparently, the center is not alone in their requirement. Fourteen states and the District of Columbia have passed laws requiring health workers to get vaccinated or some other form of treatment and such policies are becoming increasingly common in the workplace. Many do, however, allow workers to seek exemptions for religious or medical reasons such as allergy.

While many employers and insurance companies urge employees to be vaccinated against the flu, health systems have begun requiring them in an effort to better protect their patients and workforce.

According to TriHealth spokesman Joe Kelley, “The flu vaccine still is the best way to protect our employees and our patients against the flu.”

Regardless of the employees’ reasoning, whether philosophical or religious opposition to the vaccine to simple laziness, health center officials took the matter seriously and enforced their policy by handing out termination notices for the third year in a row for failure to comply.

The terminated workers do have the opportunity to appeal and be re-instated to their positions with one stipulation: provide proof of receiving the flu shot, which TriHealth will continue offering until December 3rd.

Most likely we can all agree that safety in the workplace for both employees and consumers is of utmost importance, but have policies gone too far? Some labor groups think so, citing failure to provide exemptions and critics of this particular policy point to research showing a mere 59% effective rate of the flu vaccine.

So, in the end, is this really a matter of safety or just one more policy with the potential to infringe on employee’s personal rights?

Obama’s Next Four Years: What It Means for HR and Employment Law

employment law 4 Responses »

Nov 072012

image courtesy of CNN

The votes are in, and the Obama Administration has won a second term. Now that the election is over, we can begin to more forward. But what does forward look like?

To understand where we’re going, we need to know where we’ve been. Daniel Schwartz’s post “A Look Back at Obama’s (First) Four Years and Employment Law” provides a great summary of where we’ve been. Dan concludes that “with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.”

I agree with Dan – we saw the Lilly Ledbetter Fair Pay Act, new guidance from the EEOC on the use of criminal histories and credit checks, and federal protections for nursing mothers. Not the sweeping changes that some had anticipated.

But what will the next four years hold? I think there’s the potential for more significant change in the employment law and regulatory climate. Here are the five issues I’m watching:

The Paycheck Fairness Act – the gender pay gap was a priority issue during the last term, and will continue to be a priority. As a result of education and outreach campaigns by the Department of Labor, the public is more sensitive to this issue than ever before. The Paycheck Fairness Act still has significant support, and I think it will be reintroduced into Congress in the near future (most likely in April to coincide with Equal Pay Day). The question is, with a Republican-controlled House, will the Paycheck Fairness Act survive?
OFCCP Compensation Data Collection Tool – there’s a lot about this that still needs to be hashed out and thought through, and it’s going to take time. OFCCP has a lot on its proposed regulatory plate right now, and it’s not clear whether four years will be enough time to finalize the Tool in light of everything else the Agency is working on and trying to enact.
Disability Employment – also on the OFCCP’s agenda is a proposed utilization goal of 7% for individuals with disabilities. As with the Data Collection Tool, there are still a lot of loose ends here. A lack of reliable data regarding the employment of individuals with disabilities, employee’s reluctance to self-identify as an individual with a disability, and the skepticism of whether the goal will evolve into a quota are just three of the concerns here.
Adverse Impact in Hiring – we’ve seen a great deal of interest from the EEOC on how the use of criminal histories, credit reports, and current employment status affect the hiring of women and racial minorities. The EEOC has issued guidance on the first two, and there was a bill introduced regarding discrimination against unemployed job applicants. As the nation struggles to get its people back to work, I think it’s likely we’ll see even more action on the adverse impact front. What protected groups (women, minorities, older individuals, LGBT, etc.) and what form(s) this will take is open for debate.
FLSA / Wage and Hour – let’s face it, we have a staggering national debt. This, combined with the fact that nearly every employer – no matter how diligent – is exposed to wage and hour mistakes, is seen by some as an easy source of tax revenue for the IRS and penalty income for the Wage and Hour Division. Independent contractor misclasification, exempt / non-exempt classification, and other violations have been – and will remain – a big concern for employers.

Older Entries