Monday, March 19, 2018

The 5th nominee for the “worst employer of 2018” is … the pension preventer

ERISA section 510 provides:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.

The Supreme Court has long interpreted this section as “protect[ing] plan participants from termination motivated by an employer’s desire to prevent a pension from vesting.” As the 6th Circuit noted, “[T]he prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”

Late Friday, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe late Friday. McCabe was (almost) a 21-year veteran of the Bureau, and was to have retired just two days later. The March 16 firing, however, prevented McCabe both from voluntarily leaving the FBI and collecting his federal pension.

Friday, March 16, 2018

WIRTW #498 (the “blarney” edition)

Photo by Khara Woods on Unsplash
Tomorrow is St. Patrick’s Day. Have you ever thought about what the Patron Saint of Ireland can teach us about employment-law compliance? I did, seven years ago.

Here’s what I read this week:

Thursday, March 15, 2018

Harassment training is about creating a culture, not checking a box

Bloomberg reports that demand for anti-harassment training videos has surged in the #MeToo era.

Here’s the problem, however. The Bloomberg article talks about training videos, the absolute worst kind of training.

Anti-harassment training is all about creating an anti-harassment culture in your workplace—about employees understanding what harassment is, how to complain about it, and that your company does not ever accept it.

Wednesday, March 14, 2018

How your problem employee is like an old hot water tank

Last night, my hot water tank died. It was old (14, to be exact).

During his shower, I heard Donovan yell, “Dad, there’s no hot water, and I’m freezing!” On a hunch, I traveled down to the basement, which is where I found puddles on the floor under and around the tank.

To be fair, we ignored a whole bunch of signals over the past few years. 

Fluctuating water temperatures. A 50-gallon tank that would often deplete in a half-hour. Neighbors that had replaced theirs years ago. 

Which got me thinking … an old hot water tank is not all that different from your problem employee.

Tuesday, March 13, 2018

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons
I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

Monday, March 12, 2018

Department of Labor trying to get employees PAID for inadvertent FLSA violations

Photo by Sharon McCutcheon on Unsplash
For almost as long as I’ve been writing this blog, I’ve been preaching the proactive benefits of wage and hour audits for employers (e.g., here and here).

It appears that the Department of Labor agrees.

Last week, it announced a nationwide pilot program—the Payroll Audit Independent Determination (PAID) program—which will permit employers to self-report FLSA violations to the Department of Labor without risk of litigation or enforcement proceedings. It enables employers to resolve inadvertent minimum wage and overtime violations without litigation.

Friday, March 9, 2018

WIRTW #497 (the “love” edition)

For the past 496 Fridays (plus a few off here and there) I have shared my list of what I read this week.

Implicit in each share is my recommendation that among those links are a few that you should read, too.

This week, however, there is only one thing you should (must) read.

Kevin Love, all-star power forward for the Cleveland Cavaliers, wrote about his life-long mental health issues.

Thursday, March 8, 2018

6th Circuit is the latest court to conclude that Title VII expressly prohibits LGBT discrimination

Photo by Sharon McCutcheon on Unsplash
Yesterday, the 6th Circuit Court of Appeals joined a growing number of federal appellate courts to hold that Title VII’s prohibition against sex discrimination expressly covers LGBT employees.

The claimant in EEOC v. R.G. &. G.R. Harris Funeral Homes [pdf], Aimee Stevens (formerly known as Anthony Stephens) was born biologically male, and presented as such when hired. The funeral home’s owner and operator, Thomas Rost, fired her shortly after she informed him that she intended to transition from male to female and would represent herself and dress as a woman while at work.

Wednesday, March 7, 2018

“Measure twice, cut once," and, for the love of God, don’t email porn to everyone on your company’s contact list

Photo by Wes Hicks on Unsplash
In what may be the greatest (or, depending on your perspective, worst) employee mistake of all time, the Utah State Bar emailed a photo of a topless woman to more than 11,000 of its members.

For its part, the Bar has apologized, and has said it is investigating how the incident occurred and will publicize its findings.

Speculation on the cause of the unfortunate email ranges from hackers to a disgruntled employee.

It’s neither.

Readers, let me break this case for you.

Tuesday, March 6, 2018

The legal implications of employee tracking devices

Photo by N. on Unsplash
I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.