Monday, November 24, 2014

There is no easy fix for the overtime-pay problem

Those of you who are long time readers know they I’ve long rallied for changes to the Fair Labor Standards Act. The law is overly complex, anachronistic, and nearly impossible for compliance by employers.

Last week, I read an article on arguing that the FLSA’s exemptions need to be rewritten to make it easier for employees to qualify for overtime pay. This is not the right solution to this country’s wage-hour problems. You don’t fix one problem by creating another, i.e., punishing small and midsize employers by requiring them to start paying groups of employees overtime en masse. What will be their solution to this newly created problem? Reverse engineering. They will look at each employee’s W-2 wages for the past years, and calculate the appropriate lower hourly wage (or salary) to play each newly overtimed employee that will result in the same annual W-2 figure with the time-and-a-half rolled in.

This is not a solution. It’s an administrative burden that will not put more money in workers’ pockets. The solution is to make FLSA compliance easier for employers by simplifying decades-old regulations.

There is one wage-hour change I can support. Pending in the Ohio legislature is a bill that would require retail employers to pay triple-time to employees who work on Thanksgiving. Dear readers, please do not shop on Thanksgiving. Retailers require employees to give up their holiday because we show up for sales like lemmings to the 25% off sticker. I understand why safety forces and medical workers need to give up their holidays. But the cashier at Target? He or she deserves the day of add much as I you and I do. So if we need a law to disincentive employment on these days, then so be it.

Friday, November 21, 2014

WIRTW #346 (the #grossatwork edition)

Gawker wants to know, “What’s the Grossest Thing You've Ever Done at Work?” Me? I very accidentally walked in on a very naked octogenarian. You? Share in the comments, or on Twitter with the hashtag #grossatwork.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, November 20, 2014

Don’t forget the photo authorizations for your holiday party

Are you having a holiday party for your company? Are you planning on sharing the cheer by posting photos of said party on your corporate Facebook page or other social media? If so, don’t forget to have your employees sign authorizations before you post those photos.

Like many states, Ohio has a statute that protects an individual’s name, voice, signature, photograph, image, or likeness. This “right of publicity” prohibits one from using another’s persona for a commercial purpose without written consent.

It may be sufficient to have statement in your employee handbook advising employees that, from time to time, the company may post pictures of employees on the company’s website, Facebook page, etc., and employees who wish to opt out should advise HR in writing. The overly cautious employer, though, will want this to be an opt-in process, with employees providing specific written consent for the use of their likeness in photos.

Regardless, employers should do something to ensure that they are not infringing on employees’ right of publicity with photos of employer-sponsored events. Otherwise, your holiday lump of coal might come in the form of a lawsuit by a shy, and overly litigious, employee.

Wednesday, November 19, 2014

Jury verdicts are just numbers on a paper

On Monday, a California jury awarded a former Autozone employee $185 million in punitive damages. She had sued the company for pregnancy discrimination, claiming that the district manager who fired her was promised a promotion if he fired all of the women in his stores. Last week, the same jury awarded the plaintiff $900,000 in compensatory damages for lost wages and emotional distress.

While $185 million is a staggeringly huge number, this plaintiff will only ever collect a tiny fraction of it, at best. Due process tells us that punitive damages must bear some reasonable relationship to the size of the compensatory award, typically not to exceed a ratio of 9:1.

Moreover, if this case was filed in Ohio, and not California, damage caps would kick in to severely restrict the verdict. Ohio’s tort reform law caps punitive damages in state-law employment discrimination claims to two-times the compensatory award. Thus, in Ohio, this plaintiff’s punitive award would cap at $1.8 million, still a large number, but out of the nine-figure stratosphere.

Jury verdicts are headline grabbers—big splashy numbers that grab everyone’s attention. Trust me, Autozone’s attention has been grabbed. It will file a motion to reduce the jury verdict, and it will appeal, while, at the same time, this plaintiff will file motions seeking her attorneys’ fees. Ultimately, this case will confidentially settle, and we will never know the final dollars exchanged.

More damaging than the amount of the award is the negative publicity associated with it. Because of the verdict’s inordinate size, the press has labeled Autozone as a company that discriminates against women in the worst way possible—systemically and intentionally. That damage is much worse than this employee punching a lotto ticket that she will never cash.

Tuesday, November 18, 2014

More on data security as an unfair labor practice

A few months ago, I wrote how the NLRB was exploring new areas of potential protected concerted activity to regulate. One such area is information and data security.

According to Employment Law 360, the NLRB potentially is looking to expand its reach in the area of cybersecurity, this time investigating whether an employer was required to bargain with its labor union over the impact of a data breach on its employees:

A postal workers union has lodged a charge with the National Labor Relations Board over the U.S. Postal Service’s handling of a recent data breach, a novel move that adds union negotiations to the already sprawling list of concerns companies must contend with in their race to mitigate cyberattacks.

In a Nov. 10 charge filed with the NLRB, the American Postal Workers Union accused USPS of engaging in unfair labor practices in violation of the National Labor Relations Act, by failing to give the union advance notice “that would enable it to negotiate the impacts and effects” on employees of the cyberattack….

The union specifically took issue with USPS’ offering employees affected by the incident one year of free credit-monitoring, a decision that the postal workers characterized as a unilateral change to wages, hours and working conditions that an employer is generally not permitted to make without first bargaining with the union.

Responding to a cyber-attack is complicated and complex. The federal FTC, along with a patchwork of divergent state laws, requires quick communication of various levels of detail and complexity to individuals and regulators following a data breach. If employers need to add communications to labor unions to this list of constituents (and this issue remains very much open), it will create additional burdens on employers, which could potentially slow down a company’s other response efforts.

To avoid these issues, employers should consider bargaining these issues into the terms of collective bargaining agreements, so that you have a game plan in place before you have to respond. Otherwise, when faced with a data breach, you could be faced with running your response programs through the filter of your labor unions, which could hamper your other response efforts, and subject your company to potential liability from the cyber breach.

Monday, November 17, 2014

6th Circuit rules in favor of nonprofit in discrimination claim brought by volunteers

In Bryson v. Middlefield Volunteer Fire Dep’t, the 6th Circuit held that a “volunteer” can qualify as an employee covered by Title VII under certain limited circumstances. In making that determination, a court must examine not only whether the volunteer is paid, but also the degree of control exercised by the employer over the manner and means by which the work is accomplished.

Last week, in Sister Michael Marie, et al. v. American Red Cross [pdf], the same court applied that test to uphold the dismissal of the Title VII religious discrimination, retaliation, and harassment claims filed by two nuns against the organization for which they had volunteered. In concluding that the two plaintiff-nuns were bona fide volunteers, and not employees, the court heavily relied on the lack of compensation paid by the Red Cross, coupled with its inability to control their performance via termination of employment or threat thereof.

An employer’s ability to terminate a non-compliant employee, which is perhaps an employer’s greatest source of control, is meaningful because the employee stands to lose not only her job, but also the source of income upon which she depends…. Though we make no attempt to resurrect the economic realities test from the grave, its  central teaching remains instructive…. The economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance.

While you might think it’s cold to conclude that two nuns could not pursue discrimination claims, this case makes a broader policy statement in favor of nonprofit organizations. The lifeblood of nonprofits is their volunteer base. Without the aid of volunteers, nonprofit organizations, which operate on limited budgets and scant resources, would not survive. If volunteers could easily sue these organizations for discrimination or other employment-related claims, nonprofits would be much more reluctant to use the services of volunteers to staff their needs, thus making it much more difficult for them  to carry out their missions and provide their essential services.

By relying heavily on the lack of payment to show lack of control, the 6th Circuit drew a line that will be difficult for most bona fide volunteers to cross to demonstrate employment status. And while no organization should discriminate against anyone providing services to it, this case decides that the public good done by nonprofit organizations outweighs the public policy against employment discrimination.

Friday, November 14, 2014

WIRTW #345 (the “earworm” edition)

Urban Dictionary : Earworm

Ever since my wife and I went to see Rhett Miller a couple of weeks ago, Lost Without You has been stuck in an unending loop in our collective head. Now, it is my gift to you.

For earworms, you could do a whole lot worse. At least Lost Without You is a good song. It could be It’s A Small World.

Here’s what I read this week:


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

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