A quick review on the rules for docking pay for exempt employees

"Can I dock part of an employee's paycheck?"

It's one of the questions I get most often from clients.

So, let's take a quick run through the rules of docking employee's pay for exempt employees.

WIRTW #534 (the “rock the vote” edition)

Have you cast your ballot for the Worst Employer of 2018? Time is ticking down for this year's final vote.

To remind you of the four truly awful employers vying for this year's honor, the finalists are:

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

Vote here.

Here's what I read this week:

Does Title VII protect an employee's self-help discovery?

Suppose one of your employees believes that she was discriminated against because of her protected class. She files a charge of discrimination with the EEOC, and, in support of the charge, provides the agency information from your confidential personnel files that she had copied. In response, you fire the employee for violating your confidentiality policy? She then files a new charge, alleging that her termination was in retaliation for her protected activity of gathering evidence in support of her discrimination claim.

Does her retaliation claim succeed?

Is your business rethinking its holiday party this year?

During the #MeToo portion yesterday's Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented, Robin Shea suggested that the #MeToo Movement has altered employers' holiday-party plans this year.

Indeed, according to the 2018 Holiday Party Survey (conducted by the appropriately named outplace firm of Challenger, Gray & Christmas), 35% of employers do not plan to throw a holiday party this year, the lowest number since 2009. Given the current strength of our economy, one would expect an opposite trend, suggesting that something else is causing this uptick in grinchy employers.

The likely culprit? #MeToo.

Forced hugs at work sound like a REALLY bad idea

Ray Kelvin, CEO of UK fashion retailer Ted Baker, is a hugger. According to an online petition seeking to end his practice, "he greets many people he meets with a hug, be it a shareholder, investor, supplier, partner, customer or colleague." And, it doesn't stop with hugs. He asks young female employees "to sit on his knee, cuddle him, or let him massage their ears." He strokes employees' ears. He takes off his shirt in the workplace and talks about his sex life. Even worse, when employees go to HR to complain, they are told, "That's just what Ray's like."

Well, they've had enough "of what Ray's like." More than 2,600 people, including over 300 current or former employees, have signed the online petition calling on Ted Baker to "scrap the forced 'hugs' and end harassment."

What can "Elf" teach us about the ADA?

Friday night, the Hyman clan carried out our annual holiday tradition of watching "Elf." Since much of the story took place in and around various workplaces, this year I decided to watch with an eye towards shareable employment law lessons.


Early in the story, Buddy learns the harsh reality that he is not actually an elf, but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations, and being transferred to Jack-in-the-Box testing (the job reserved for "special" elves).

Assuming that Buddy's height is a disability in the North Pole (and if the ADA protects dwarfs down south, it's safe to assume the North Pole's disability discrimination laws would similarly protect Buddy's heightened height up north), what ADA lessons does this parable teach us?

WIRTW #533 (the “Stella's” edition)

If you ever wanted to know how hard a group of pre-teens and teens can rock, you'll have your chance on December 21, when Fake ID invades Stella's Music Club. They play from 7:30 – 9:30, and word has it they are working up a few Christmas tunes for the season.

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Also, you still have time to register for The Best-Ever Year-End Employment Law Review That 5 Employment Law Bloggers Ever Presented—Tuesday, 12/4, from noon to 1 p.m. 

Join me, along with employment law bloggers extraordinaire Eric Meyer, Jeff Nowak, Dan Schwartz, Robin Shea, and our fearless (fearful?) moderator, Kate Bischoff.  

Register here

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Here's what I read this week.

I can name that lawsuit in one note

Demetria Kalodimos, age 58, worked as an anchor for Nashville's WSMV for 33 years. After the station failed to renew her contract, she sued for age and gender discrimination.

The Worst Employer of 2018: The Finalists

The votes have been cast, and counted. And we have four awful employers that have qualified for the finals of the Worst Employer of 2018.

I started this journey all the way back on January 2, 2018, in a post discussing a company president who tried to solicit sex from his employee by telling her God wanted her to be his sexual plaything.

And he didn't even come close to qualifying for the finals!

After nearly 600 votes, you've cut the 15 nominees down to these 4 finalists (in alphabetical order):

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

Now for the fun part. Instead of asking that you pick just one of these gems, I'm asking you to rank them, from 1 (the worst employer) to 4 (the least worse employer). This will then give me a weighted score to name, finally, the WORST EMPLOYER OF 2018.

The polls will remain open until Tuesday, December 18, at 11 pm.

You can vote below, or at https://www.surveymonkey.com/r/SG9Z8CX.

UPDATE: Does an employer have a duty to protect the personal information of its employees?

In July, I asked whether an employer owes its employees a legal duty to protect their personal information. I discussed cases that answered that question in both the affirmative and the negative. I also suggested that regardless of whether employers have a legal duty to protect the personal information and data of your employees, they still have a significant financial and reputational incentive to take reasonable steps to maintain the privacy and security of all of their information.

The dominoes, however, are starting to fall on the existence of a legal duty.

On the 12th day of Christmas, my employer gave to me … a handgun?

'Tis the season for giving. What's the oddest holiday gift an employer has ever given you? For the employees of one Wisconsin company, the answer might just be a handgun.

WIRTW #532 (the “❤️ the holidays” edition)

On December 25, I will turn 18 in Christmas years. My wife and I starting dating in October 2001, and we celebrated our first Christmas together two months later. I LOVE Christmas. I joke with my wife that I married her for Christmas. I love the lights, the tree, the family togetherness, the snow, and the overall peaceful spirit of the holiday.

And the music. I love Christmas music. Which is why this year, I'm thrilled that I get to combine my favorite holiday with my favorite band.

Today, Old 97's released "Love the Holidays," a collection of twangy Christmas tunes to fill your ears and your soul with yuletide joy.

Take a listen to the exquisitely beautiful "Snow Angels," a song that seeks togetherness in these troubled times, and calls for us to find that which binds us instead of that which us divides us.

Look to your left, look to your right
Everyone of us is a beam of light.
Together, we’re strong. There’s no need to fight.
Everyone of us is a beam of light.

I also dare you not to imagine snow falling outside you window as you listen to the imagery this tune invokes.




The blog is off next week, as I'll be home getting ready for, and then celebrating, my other favorite holiday, Thanksgiving. But, come back the week after when I'll announce the finalists for the Worst Employer of 2018 (have you voted yet?), and take us through the year's home stretch.

Here's what I read this week:

Do you know? Pre-employment medical examinations

A local mayor has gotten himself in some hot water for his selective use of pre-employment medical examinations for hirees. How selective? According to WKYC, one woman claims that the mayor required her and other women, but not men, to be examined by his personal doctor. For his part, the mayor denies the allegations as an act of a "fertile imagination," and claims that he sends all city workers, male and female, to the same doctor for pre-employment exams.

Why would her allegations rise to the level of unlawful activity?

What can you learn from the law firm partner suspended for watching porn at work?

According to The American Lawyer (sub. req.), Hogan Lovells has suspended one of its partners in its London office for watching porn at work. How did it catch the offense?

In IT employee read his internet logs? No.

He forgot to close his browser when he went to the loo and his assistant walked into his office? No.

He visited an unsafe site that spammed his entire office with malware? No.

Do you know? English-only workplace policies

White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You're an immigrant too!

– White Stripes, Icky Thump (2007).

Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald's restaurant, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

Register now for "The Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented"

What could you buy for $25?

• Goosh Pants
• A yodeling pickle + Dancing with Cats 
• Gummi Bear Anatomy Model Kit 
• 100 Misprint Ink Pens Ball Point Plastic Retractable Pens + 2 Nicolas Cage pillowcases

What should you buy for $25?

 

One registration to The Best-Ever Year-End Employment Law Review that 

Five Employment Law Bloggers Have Ever Presented

WIRTW #531 (the “Mexico” edition)

Last night, I got to watch my daughter hit a home run, on stage at The Beachland Tavern, singing "Mexico" with decker. (You can read the backstory of how this all came together here.)


Huge thanks to Brandon Decker, for reaching out and offering to share his stage with Norah.

Here's what I read this week:

A resignation in lieu of termination is (more or less) still a termination

"At your request, I am submitting my resignation."

So wrote now-former Attorney General Jeff Sessions in his resignation letter to President Trump.

Yet, no one reasonably believes that Sessions resigned. "At your request, I am submitting my resignation" is a termination, period.

Clients ask me all the time, about an at-risk termination. "Jon, what if we just have him resign? He can't sue us for discrimination, then, right?"

Job applicant told, "Your sexuality may be an issue with the atmosphere of the office environment."

I found the following story posted to the legaladvice subreddit. It's titled, "Turned down for a job, asked what the issues were. Told 'your sexuality may be an issue with the atmosphere of the office environment'."

Sexual harassment prevention 101: NO STRIP CLUBS

Last month, the EEOC held a public meeting on preventing workplace harassment. Entitled, Revamping Workplace Culture to Prevent Harassment, it's the agency's second meeting since forming its Select Task Force on the Study of Harassment in the Workplace, and its first in the #MeToo era.

The EEOC discussed the need for employers to take a holistic approach to change workplace culture to prevent harassment.

Somehow, the EEOC missed "No strip clubs for employees" as one of its anti-harassment talking points.