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Mar 202013

RobinToday 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 CommutersPhil 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 ThinkMichael 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 2013Robert 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 CompanyJohn 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. 

Jan 252013

swine-flu-at-work-coughing-jerk‘Tis the season: flu season. You’re coughing, sniffling, achy, and feverish. While climbing back into bed with the box of tissues by your side sounds like a great idea, do you do it? Or do you drag yourself to work?

If you are one of the estimated 40% of American workers who have no paid sick days, it’s likely that you will dose up on some over the counter medication and head to work.

Under current U.S. labor law, employers are not required to provide short-term paid sick days or longer-term paid sick leave causing tens of millions of workers to go without paid sick time. Millions of workers each year go to work sick resulting in decreased productivity and increased risk of spreading germs and illness to co-workers, clients and customers.

As the number of flu cases increases, so does the debate surrounding paid sick leave. While we can probably all agree that if you’re sick the best place for you is at home resting, getting well and keeping your germs to yourself. But for many, their financial situation and workplace policies dictate otherwise.

For Diana Zavala, a school speech therapist working as an independent contractor, missing work was not an option even though she was feeling miserable and fearful she had caught the flu. As she puts it, not having paid sick time creates “a balancing act” between physical health and financial well-being.

According to Connecticut Representative Rosa DeLauro and Iowa Senator Tom Harkin, who are calling on colleagues in the House and Senate to cosponsor the Healthy Families Act (HFA), it doesn’t have to be this way. DeLauro, who initially introduced the plan with Senator Edward M. Kennedy back in 2004, plans to reintroduce HFA with Harkin in mid-February.

Under the HFA, workers would be eligible to earn up to 1 hour of paid sick time for each 30 hours worked, up to 7 days of leave.

But many employers and small business owners, while sympathetic to their employees’ situations, find themselves in the midst of their own financial struggles and say requiring them to pay employees for sick days would impose an unrealistic and impractical burden.

It’s a tough call: assist employees at the cost of the company or vice-versa? We mustn’t forget the other important dynamic that needs to be taken into consideration: the well-being of customers and clients.

While paying a sick employee for the day off might not be the best financial option for your business, neither is losing customers because your barista is making the morning lattes while hacking with a cough, a sneezing waitress is delivering lunch to the table or a feverish executive is spreading more germs than ideas around the conference table.

It will be interesting to see what, if any, compromises can be made to protect the interests of all involved: employers, employees and consumers.

Jan 072013

PeterLoweDrug and alcohol impairment in America’s workforce is a growing problem. According to studies by the Center for Substance Abuse and SAMHSA, 22.6 million Americans used illicit drugs in the past month. 66% of those users are employed. 3.1% of workers admitted to using drugs before or during work hours in the previous year.

Drug and alcohol impairment in the workplace presents a danger to employees and the public, causes increased workplace accidents, increased absences, decreased productivity, and lower morale.

In this week’s episode of The Proactive Employer, we speak with Peter Lowe about impairment in the workforce. We talk about the prescription drug pandemic, medical marijuana laws, the new recreational marijuana laws in Washington and Colorado, and the conflicts between federal and state laws. We discuss whether “medical marijuana user” is a new protected class, and how medical marijuana relates to the ADA. We wrap up the discussion with some recommendations for employers on what workplace alcohol and drug policies they should have in place, and how to enforce those policies.

This show will air on Thursday, January 10th at 3 PM Eastern / 12 Noon Pacific on BlogTalkRadio.

The show will be available for on-demand listening at The Proactive Employer website, on BlogTalkRadio and via iTunes following the broadcast.


Nov 022012

As an employee, you may have had days that you just didn’t feel like going in to work. As an employer, you’ve most likely heard all kinds of excuses for calling in. But, one woman has found herself in some legal trouble after she faked her own kidnapping to get a day off.

Police in San Antonio have charged Sheila Bailey Eubank, a service advisor at Gunn Honda dealership, with aggravated perjury for conjuring up a phony story of being kidnapped by a knife-wielding perpetrator.

While making rounds on October 10th, police found Eubank bound with rope inside her parked car out in a field. She told officers that a man had jumped into her car early that morning at a credit union ATM as she withdrew money. She claimed that the man held her at knifepoint, forced her to drive him to various locations – which she suspected were for drug deals – and later assaulted her, tried to choke her with a rope and ultimately left her tied up in her car.

Sounds like a good (and scary) excuse not to report for work. But her tale began to unravel when police discovered a lottery ticket in Eubank’s purse that had been purchased during the time she was supposedly being held hostage and surveillance footage at the store where the ticket was sold showed a healthy, unhurried Eubank making pleasantries with the clerk as she bought the ticket.

Additionally, video surveillance from the credit union ATM confirmed that she had withdrawn money that morning, but showed Eubank alone and no signs that anyone was with her.

When confronted with these pieces of evidence, she confessed that she had concocted the whole story because she “simply wanted a day off from work” and a little bit of attention. She may have gotten a day of rest and some attention – albeit negative attention – but it didn’t come without a cost: $100,000 in bail.

Apparently, the U.S. is the world’s only industrialized nation that does not have a national labor policy regarding sick leave or vacation and it isn’t looking good for one to be instituted in the near future.

But, even if you desperately need a day off and you’re one of the approximately 40 million American workers, who according to the Bureau of Labor Statistics, does not receive paid sick leave or you count yourself among the 25 percent of the U.S. workforce who receive no paid vacation, you might want to seriously consider  dragging yourself to work. Or at least come up with a better excuse to call off: one that will not land you in  police custody.