Do you know? The FLSA’s Computer Employee Exemption

Do you know? One of the FLSA’s lesser-known exemptions is the Computer Employee Exemption.

For an employee to qualify for the computer employee exemption, the employee must either be paid a salary of at least $455 per week or an hourly rate of at least $27.63. The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field.

Additionally, the employee’s primary duty must fall into one of the following four categories:

1. The application of systems analysis techniques and procedures, including consulting with users, to  determine hardware, software or system functional specifications;

2. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

4. A combination of the aforementioned duties, the performance of which requires the same level of skills.

This exemption does not include:

• Employees engaged in the manufacture or repair of computer hardware and related equipment.

• Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (such as engineers, drafters, and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming.

As with the FLSA’s other exemptions, determining whether an employee or group of employees falls under this classification is very fact-specific, and it is often worth obtaining a professional opinion.

For information on some of the FLSA’s other exempt classifications, see:

• Do you know? The FLSA’s exemptions for salespeople

• Do you know? The FLSA’s Administrative Exemption

• Do you know? The FLSA’s Executive Exemption

  
  

Layoffs = lawsuits

This headline from the New York Times says it all: “Layoffs Herald a Heyday for Employee Lawsuits.”

More workers are being let go as corporate layoffs that began in earnest last year have accelerated in recent weeks. And more often, people are looking around and complaining that they have been unfairly or improperly dismissed.

Potential lawsuits from layoffs come in all shapes and sizes: WARN Act violations for lack of notice, discriminatory selection for the layoff, or the use of selection criteria that discriminatorily impacts one group over another. According to the New York Times article one plaintiffs firm in New York has started its own WARN Act practice group that has filed two dozen different cases against employers in the last 18 months.

In all layoffs, companies should consider paying some amount of severance to affected employees in exchange for a release of claims. It’s painful for some businesses to consider paying severance to a group of employees being let go because the company can no longer keep them as employees. And, the higher up the corporate ladder the layoff reaches the greater amount of severance pay will be necessary to buy an employee’s release. The alternative, however, is potentially exponentially more expensive – years of protracted litigation brought by employees or groups of employees.

If a company is going to offer severance, it should insist on receiving a signed release in return. Just make sure that the release complies with the Older Workers Benefit Protection Act (OWBPA). Otherwise, at least as far as far as a federal age discrimination claim, the release will not be worth the paper on which it is written.

For more on releases under the OWBPA, see:

• Refresher on age discrimination waivers

• Defining the proper "decisional unit" is key in legitimacy of RIFs

[Hat tip: Minding the Workplace]

WIRTW #64

It’s been a very busy week. We had the first employment law Supreme Court decision and the first new employment law of the new year. And, we had a lot to read from a lot of excellent bloggers.

The ChamberPost refers to the Ledbetter Fair Pay Act as a scam.

Human Rights in the Workplace discusses the legal risks associated with social networking in the workplace.

The Connecticut Employment Law Blog gives insight on President Obama’s choices to run the EEOC and the NLRB.

George’s Employment Blawg provides a thorough analysis of the Employee Free Choice Act.

What's New in Employment Law? spots a huge faux pas by Starbucks’s CEO. As a PR move, he cut his own salary from $1.2 million to $10,000 annually, lowering his pay below the threshold to qualify as an exempt employee.

Bob Sutton coins the phrase Asshole Collar, bosses with a white collar and colored shirt.

The Ohio Labor Lawyers provide some insight on what to do when a union business agent shows up with signed authorization cards.

Where Great Workplaces Start give some examples of alternatives to layoffs, such as wage reductions or reduced work schedules.

The HR Capitalist shows everyone what a strip club’s employee handbook looks like.

Gruntled Employees gives a grammar lesson on the difference between to lay off (a verb), layoff (a noun), laid-off (an adjective).

World of Work reports on the 10th Circuit’s dismissal of a WARN Act case.

The Evil HR Lady on email etiquette.

LawMemo Employment Law Blog discusses a case that could potentially come before the Supreme Court, on the issue of what qualifies as a mixed-motive discrimination case.

On.point presents the story of a dismissal of a sex discrimination lawsuit brought by a transsexual.

Workplace Privacy Counsel points out that under GINA, one could be held liable for the disclosure of genetic information even if it was made inadvertently.

Materials from KJK’s Breakfast Briefing are available

Yesterday, blizzard and all, KJK held its inaugural Employment Law Breakfast Briefing. We covered the Top 10 Labor & Employment Issues for Businesses in 2009. For those who could not attend or are interested, the PowerPoint slides from the presentation are available for download. It’s a big file (over 1.5M), so please be patient with the download.

As promised, President Obama signs Ledbetter Fair Pay Act

http://www.cnn.com/2009/POLITICS/01/29/obama.fair.pay/index.html for the details.

6 tips to avoid an employment lawsuit

For the past two days, BLR’s HR Daily Advisor has been looking behind enemy lines and providing tips from a plaintiffs lawyer on mistakes employers make that generate litigation (A Peek into Enemy Camp – Plaintiff’s Lawyer Spills Secrets and How to Grease the Skids for Your Employee's Attorney). I culled the following six from those articles, and are designed to point your business in the right direction with some proactive steps you can take to handle employees and policies and help avoid future employment claims.

1. Discounting damages and potential liability. Managers and supervisors often underestimate their own liability. People with decision-making authority need to keep in mind that in Ohio they can be held personally liable for their own discriminatory actions. It’s not just the company that can be held liable. If people stopped and considered that they could be equally liable for back wages, compensatory, and even punitive damages, they might tread more cautiously when dealing with protected employees.

2. Omitting a Reason for Termination. Companies often believe that it is better not to provide a reason for a termination than to give a reason that can be used as potential ammunition against the company. The converse is usually true. The lack of a reason is often the spark that fires the weapon. If an employee is not given a reason, he or she will assume that there is no good reason, and seek help from an attorney. However, if the employee is given a reason that is backed up by prior discipline, reviews, and other communications, the employee is much more likely to understand and move on. The keys are proper prior communication and accuracy.

3. Ignoring the EEOC Response. By ignoring, I don’t mean failing to respond at all (which is also a big mistake). Instead, I mean not taking the time to draft a thorough, proper, and accurate response that gives the EEOC or OCRC sufficient detail to issue a “no probable cause” finding. Be mindful of accuracy, however, as inconsistencies will likely come back to bite you in subsequent litigation.

4.Terminating Employees with Good Evaluations or Scant Documentation. It’s very difficult to justify the termination of an employee for performance problems if the employee has glowing performance reviews and no history of written documentation outlining the problems. The less paper that exists, the more a termination looks like pretext.

5. Ignoring Your Own Policies. Managers and supervisors should be trained in what your policies are and how they should be applied. While policies should state that they are not contracts, they do set standards of conduct that should be met in most cases. Consistency avoids the appearance of pretext, which in turn avoids summary judgment denials and jury trials.

6. Delaying Policy Changes. Laws change frequently. New laws are passed (the FMLA’s military leave amendments, the Genetic Information Nondiscrimination Act), old laws are changed (the new FMLA regulations and the recent ADA amendments), and courts write opinions that reinterpret laws (the Supreme Court’s inclusions of internal investigations in retaliation liability). Companies that are slow to react to incorporating these changes into their policies risk liability. Policies must be well drafted, reviewed by lawyers, and updated frequently.

There is no sure-fire method to prevent a lawsuit from being filed. No company is bulletproof, and there is no guarantee against a terminated employee filing a lawsuit. This list, however, is a good first step to helping put your organization in the best position to dissuade lawsuits from being filed and successfully defending against them when they are.

A primer on inclement weather policies

It seems appropriate as today’s snowstorm plays havoc on KJK’s inaugural Breakfast Briefing to spend some time talking about inclement weather policies.

There is no law that governs whether businesses must, or even should, stay open during bad weather. Instead, it is simply a matter of policy for each company to decide for itself. Like all policies, communication is the key to ensuring that employees are all on the same page when it comes to whether a business is going to open or shut down to account for bad weather.

Bad weather will affect different employees differently. Commute times and distances, methods of transportation, and school closings will all impact whether a certain employee will be able to make it to work when bad weather hits. In drafting a policy for inclement weather, consider the following:

1. Communication. How will your business communicate to its employees whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes? If an employee does not get word of a closure and reports to work anyway, will the company pay that employee for reporting?

2. Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations on that day? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who can stay and who can leave?

3. Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee?

4. Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?

For more on inclement weather polices take a look at the Pennsylvania Labor & Employment Blog.

Note the effective date of the Ledbetter bill

From PointofLaw.com, on the effective date of the Ledbetter Fair Pay Act:

SEC. 6. EFFECTIVE DATE.

This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.

May 28th? The Supreme Court issued its Ledbetter ruling on May 29, 2007, so Lilly Ledbetter's suit was still pending then. So does she get another shot at her lawsuit?

It looks like the Ledbetter bill will completely wipe away the Supreme Court’s Ledbetter decision, as if it never even happened. President Obama has promised to sign this bill into law on Thursday, January 29.

Do you know? The FLSA’s exemptions for salespeople

Do you know? The FLSA has two different exemptions that could cover salespeople – the outside sales employee exemption and the commissioned retail employee exemption. If an employee qualifies for either of these exemptions, that employee is not owed overtime for any hours worked in excess of 40 in any given work week.

To qualify for the outside sales employee exemption, both of the following must be met:

1. The employee’s primary duty must either be making sales, or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

2. The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Because sales employees are often commissioned (at least in part), there is no salary requirement with this exemption.

Outside sales typically do not include sales made by mail, telephone, or the Internet. For example, this exemption does not cover telemarketers.

To quality for the commissioned retail employee exemption, all three of the following requirements must be met:

1. The employee must be employed by a retail or service establishment;

2. The employee’s regular rate of pay must exceed one and one-half times the applicable minimum wage; and

3. More than half of the employee’s earnings must be in form of commissions.

For information on other FLSA exemptions, see the following:

• Do you know? The FLSA’s Administrative Exemption

• Do you know? The FLSA’s Executive Exemption

Supreme Court rules that retaliation includes participating in internal investigations

In a unanimous 9-0 decision, the U.S. Supreme Court held today that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. The case is Crawford v. Metropolitan Gov’t of Nashville.

The case involved the termination of a 30-year employee who answered her employer’s questions during its investigation into a co-worker’s allegations of harassment against a different employee.

The Court found Crawford’s activity to be protected by the anti-retaliation provision’s “opposition” clause:

[N]othing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question….

If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others…. The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.

Wile the Court went to great lengths to ground its decision in the statutory definition of “opposition,” this opinion really is policy driven. The Court is sending a clear message that it highly values internal workplace investigations. The message to employers is two-fold:

1. If an employee complains of discrimination or retaliation, investigate

   promptly and thoroughly; and

2. The investigatory process should include clear assurances to third-party witnesses that they will not be retaliated against for participating in the investigation.

Reverse age discrimination should not be a concern in layoffs

Last week, BusinessWeek ran the following headline: Employers Avoid Axing Oldies but Goodies. The crux of the story is that the current wave of layoffs is hitting younger employees much harder than in the past. Seniority is being protected because of legal concerns in laying off the over-40 set, and because of the need to keep experienced people in place to help navigate these difficult times. According to the article, hard numbers back this trend:

• Unemployment claims for those 55 and older jumped to 4.9% in December 2008, a 1.8% rise over the prior year.
• In contrast, for those aged 25-54 the rate climbed to 6.3% in December, a 2.3% jump from December 2007.
• Meanwhile, there are 2.8 million less people ages 25-54 employed in December 2008 as compared to December 2007.
• In contrast, there are 878,000 more employees age 55 and over employed this year as compared to last year.

Yet, the article ends with the following word of caution:

Still, companies must tread carefully to avoid showing favoritism based on age. They could wind up facing reverse-discrimination suits from younger workers who feel targeted.

Nothing could be further from the truth. In General Dynamics Land Systems v. Cline (2004), the U.S. Supreme Court conclusively ended the debate over whether one can bring a claim for reverse age discrimination. In that case, the employer provided retiree health benefits only to those people who were over age 50. 196 employees ages 40-49 claimed that since the contract expressly excluded employees between the ages of 40 and 49, providing benefits only to retirees 50 and over was illegal age discrimination. Thus, the Court was asked to decided if the ADEA prohibits “reverse discrimination” against workers over 40 by providing greater benefits to workers over 50 than to younger workers who are still over 40.

The Court rejected the notion of “reverse age discrimination.” The ADEA’s “text, structure, purpose, history, and relationship to other federal statutes show that the statute does not mean to stop an employer from favoring an older employee over a younger one.” According to the Court, the ADEA is “a remedy for unfair preference based on relative youth, leaving complaints of the relatively young outside the statutory concern.”

In structuring any layoff, it is always wise to verify that the affected group does not contain a disproportionate percentage of “protected group” employees. In conducting that analysis, though, one should not be concerned about whether the layoff disproportionately favors older workers over younger workers.

Ledbetter passes Senate – President’s signature is next

It’s looking like the Lilly Ledbetter Fair Pay Act will be the first piece of legislation President Obama will sign into law. The Washington Post reports that yesterday it passed the Senate by a vote of 61-36. The Washington Post goes on to quote Lilly Ledbetter, who said that she had spoken to the President following the Senate vote, and that “he has assured me that he will see me in the White House, hopefully in just a few days.”

For more the Ledbetter Act and its implications for employers, see Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency and Are we overreacting to Ledbetter?

WIRTW #63

If you check out only one other link this week, click over the Connecticut Employment Law Blog, where Dan Schwartz writes an Inauguration Day letter to President Obama on what he hopes to see for employers over the next four years.

In other Inauguration-related news, the Delaware Employment Law Blog shares some thoughts on work-life balance and Michelle Obama.

The Evil HR Lady answers a question on the pro-rating of exempt employees’ salaries based on the number of hours they work each week. If an employer prorates a salary based on the number of hours worked, the employee almost certainly isn’t exempt.

George’s Employment Blawg points out some common employment application mistakes.

The Word on Employment Law with John Phillips, with a nod to Execupundit, lists the top 7 reasons employees don’t go to HR. For what it’s worth, I’d re-rank the top 2 as fear of retaliation and fear of company bias.

LawMemo Employment Law Blog reports on the Supreme Court’s decision in Locke v. Karass, which held that a local union can lawfully charge nonmembers for national litigation expenses.

More lessons from children’s lit: Dr. Seuss

As either my wife or I do every night, our daughter was put to bed last night with a book (or four). On the list last night was one of my all time favorites, Green Eggs & Ham. As I was reading I got to thinking that given the adult themes Dr. Seuss weaved into his books, there must be some lessons for employers to take from his works. I came up with the following:

Horton Hears a Who teaches that employers should not ignore complaints by employees. If an employee raises a concern about harassment, it is best for the company to take the complaint seriously, investigate, and take whatever corrective action, if any, is necessary. It is far better to investigate and conclude that nothing is there than to ignore the complaint and have it blossom into a lawsuit.

And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first children’s book, is about a boy who dreams up a wild story to tell his father when he gets some from a walk down Mulberry Street, but ultimately decides to simply tell him what he saw. For employers, the lesson is to deal openly and honestly with employees. Gossip runs rampant in every workplace, and it is better to quell rumors than to keep truths or even lie to employees. This lesson is especially relevant with the silent killer of card check union recognition potentially looming on the horizon.

The Cat in the Hat teaches that employers must know what it is the right time to cut bait with a troublesome employee.

Yertle the Turtle involves the king of the pond who commands the other turtles to stack themselves beneath him so that he can see, ignoring the turtles’ pleas for rest. The lesson for employers is to treat employees fairly.

The Sneetches, about shunning those who look different, teaches an important lesson about discrimination.

Finally, Fox in Sox teaches that sometimes you just have to have a little fun.

Unions should not bet on the EFCA as a sure thing

As President Obama was taking the oath of office, inside some office in some executive office building in Washington D.C., someone flipped a switch and turned on the new website for the White House. It is drastically different, as President Obama is becoming the first president to fully embrace the internet as a viable means to communicate with the public. It has all of the typical history, civics, and biographical information one has come to expect from the White House’s website. However, it also has extensive information on President Obama’s agenda for the next four years. You’ll find information on suggested changes to the FMLA and paid sick leave, proposed new laws to protect individuals from discrimination based on sexual orientation and gender identity, and his plan to stimulate the economy and create jobs.

What you will not find, though, is any mention of the Employee Free Choice Act. While it was featured prominently on Change.gov, the President’s transition website, it has been completely scrubbed from Whitehouse.gov. Perhaps this recent interview of President Obama by the Washington Post sheds some light on this curious omission:

Q: The Employee Free Choice Act - a timing question and a substance question: in terms of timing how quickly would you like to see it brought up? Would you like to see it brought up in your first year? In terms of substance, the bills that you talked about in your floor statement on the Employee Free Choice Act problems with bullying of [inaudible] people want to join unions. Is card check the only solution? Or are you open to considering other solutions that might shorten the time?

Obama: I think I think that is a fair question and a good one.

Here's my basic principal that wages and incomes have flatlined over the last decade. That part of that has to do with forces that are beyond everybody's control: globalization, technology and so forth. Part of it has to do with workers have very little leverage and that larger and larger shares of our productivity go to the top and not to the middle or the bottom. I think unions serve an important role in that. I think that the way the Bush Administration managed the Department of Labor, the NLRB, and a host of other aspects of labor management relations put the thumb too heavily against unions. I want to lift that thumb. There are going to be steps that we can take other than the Employee Free Choice Act that will make a difference there.

I think the basic principal of making it easier and fairer for workers who want to join a union, join a union is important. And the basic outline of the Employee Fair Choice are ones that I agree with. But I will certainly listen to all parties involved including from labor and the business community which I know considers this to be the devil incarnate. I will listen to parties involved and see if there are ways that we can bring those parties together and restore some balance.

You know, now if the business community's argument against the Employee Free Choice Act is simply that it will make it easier for people to join unions and we think that is damaging to the economy then they probably won't get too far with me. If their arguments are we think there are more elegant ways of doing this or here are some modifications or tweaks to the general concept that we would like to see. Then I think that's a conversation that not only myself but folks in labor would be willing to have. But, so that's the general approach that I am interested in taking. But in terms of time table, if we are losing half a million jobs a month then there are no jobs to unionize. So my focus first is on those key economic priority items that I just mentioned.

To read the tea leaves, no one should think that President Obama has softened his position on the EFCA as a matter of policy. He was an early supporter of it as a Senator, and it is fair to conclude that the ascension to the Presidency has not altered his ideology. However, he is a shrewd politician, and he must know: 1) that given the current state of the economy the timing is not right for the EFCA, and 2) the EFCA in its current form is too divisive to ever come out of Congress. In other words, the EFCA is off the table for now, but once the economic ship has been righted, look for this administration to push for a compromised, less controversial, Employee Free Choice Act.

[Hat tip: Connecticut Employment Law Blog and Workplace Prof Blog]

Reminder: It’s not too late to RSVP for KJK’s Breakfast Briefing

There is still time to RSVP for KJK’s inaugural Employment Law Breakfast Briefing: The Top 10 Labor & Employment Law Issues to Face Your Business in 2009. We’ll discuss topics such as the recent ADA Amendments, the new FMLA regulations, legislation President Obama is likely to sign in 2009, the crush of wage and hour litigation, and handling employee layoffs and terminations in a difficult economy. Help prepare your organization for these issues by spending a couple of hours of your morning with KJK’s Labor and Employment Law attorneys.

The seminar will be held Wednesday, January 28, 2009, at The Club at Key Center located at 127 Public Square, Cleveland, OH 44114. The agenda is as follows:

Presenters: Rob Gilmore, Alan Rauss, and Jon Hyman

Agenda
8:00-8:30 Breakfast
8:30-9:30 Presentation
9:30-10:00 Q&A

The event is free and parking will be provided.

If you are interested in attending, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by January 23, 2009.

Do you know? Ohio’s jury duty rules for employers

Do you know? Ohio has specific rules that govern how employers handle employees who are summoned for jury duty – Ohio Revised Code 2313.18.

Rule number 1 is simple. It is illegal for an employer to discharge, threaten to discharge, or take any disciplinary action that could lead to the discharge of any permanent employee summoned to serve as a juror, provided that the employee gives reasonable notice to the employer of the summons prior to the commencement of the employee’s service as a juror and if the employee is absent from employment because of the actual jury service.

Rule number 2, though, is counter-intuitive. It is illegal for an employer to require or even request an employee to use vacation time, or sick leave, or other paid time off for time spent responding to a jury duty summons, time spent participating in the jury selection process, or time spent actually serving on a jury.

Rule number 3 provides some relief for small businesses. If a company with 25 or fewer full-time employees (or their equivalent) has more than one employee summoned for jury duty within the same court term, the court must postpone and reschedule the service of the later-summoned employees.

Companies should take these rules seriously. Violations can be punished as contempt of court, and employees terminated in violation of this statute could pursue a wrongful discharge claim.

Drafting an appropriate social networking policy

According to a recent report published by the Pew Internet & American Life Project, the percentage of adults who use social networking sights such as MySpace, Facebook, and LinkedIn has more than quadrupled in the past four years – from 8% in 2005 to 35% in 2008. By age, the stats break down as follows:

• 18 – 24: 75%
• 25 – 34: 57%
• 35 – 44: 30%
• 45 – 54: 19%
• 55 – 64: 10%
• 65 & over: 7%

For American businesses, these numbers mean that a large quantity of workers have profiles on any number of social networking sights (yours truly included). They also mean that if your internet or technology policy does not cover the appropriate use of social networking and blogging you are leaving yourself potentially exposed for abuse, embarrassment, and potential liability. 

Let me offer a few thoughts on putting together a policy to cover employees’ use of social networking.

1. A blanket prohibition does not make sense. I am not a fan of draconian policies. They cause more harm than good. They are bad for morale, drive away quality employees, beg for violations, and hamstring employers into making personnel decision they might not otherwise want to make when the policy is violated. If the reality is that a large chunk of employees are social networking, employers should embrace this medium within reason.

2. Employees need to understand that with the ability to use social networking comes responsibility. If a profile can link someone to their place of employment, the employee cannot post anything that could potentially embarrass or otherwise reflect poorly on his or her employer. This policy is one of common sense. Posting where you went to college is acceptable, posting pictures of yourself drunk while in college is not.

3. Use while at work should be governed by a company’s general internet protocol. If a company permits limited personal use at work (which most should), then the same ability should be extended to employees’ social networking activities.

These types of policies are governed by one guiding principle – treat employees like adults and assume that they will return the favor until they prove otherwise.

[Hat tip: Delaware Employment Law Blog]

WIRTW #62

What are my contemporaries writing about this week? Let’s take a look.

George’s Employment Blawg and the National Law Journal both share their thought on whether recession-era juries will be good or bad to employers.

The HR Capitalist gives his opinion on whether fighting labor unions was good or bad for Starbuck’s corporate image.

The Pennsylvania Labor & Employment Blog provides a handy HR compliance checklist for the new year.

The Delaware Employment Law Blog continues its back to school course on the FLSA with a lesson on recordkeeping.

The Employment Law Blog answers why severance agreements always advise the employee to consult with an attorney.

Workplace Privacy Counsel breaks down privacy concerns in the new FMLA regulations.

KnowHR Blog reminds everyone that confidentiality is key during layoffs.

The Washington Labor & Employment Wire reports on two recent DOL opinion letters on wage and hour issues for tipped employees.

Human Rights in the Workplace discusses an interesting sex harassment case from our neighbors up north.

Tomorrow is “FMLA Day.” Is your company ready?

Tomorrow, January 16, is FMLA Day – the day the new FMLA regulations take effect. If a business is covered by the FMLA (it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year), there are certain steps it should be taking to get ready for the changes.

1. Post the Revised FMLA Poster.

2. Distribute a revised FMLA Policy or make appropriate handbook amendments.

3. Take out of circulation old FMLA forms (Employer Response to Employee Request for FMLA Leave and Certification of Health Care Provider, for example), which are no longer legal to use.

4. Put into use the new form to notify employees of their FMLA eligibility, to be used within five business days of an employee’s request for FMLA leave or the employer’s other notice of the need for leave.

5. Put into use the two new medical certification forms, one for an employee’s own serious health condition, and the other for an employee’s family member’s serious health condition.

6. Put into use the new FMLA designation notice, which must be given to an employee within five business days after an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA.

7. Make sure that the appropriate forms are being used for military family leave – one for the certification of qualifying exigency and one the certification for a serious injury or illness of a covered servicemember.

8. Train all HR personnel, managers, and supervisors on the mechanics of the new FMLA regulations.

For more information on the key FMLA changes, you can review these earlier posts:

• Summary of new FMLA Regulations: 10 Key Changes.

• Summary of new FMLA Regulations: Military Family Leave.

• New FMLA Regulations: What do they mean to notice and designation obligations to employees?