English-only debate is not going away

Since I last wrote on English-only workplace rules and Congress's attempt to prohibit legal challenges of them (Congress debates legality of English-only rules) the debate has continued. Yesterday, the New York Times gave its 2 cents:

Politicians like Senator Lamar Alexander, Republican of Tennessee, have jumped into the fray. Last year, Mr. Alexander introduced legislation to prevent the [EEOC] from suing over English-only rules. After that measure died in conference committee, he introduced a similar one in December.

"This bill’s not about affecting people's lunch hour or coffee break — it's about protecting the rights of employers to ensure their employees can communicate with each other and their customers during the working hours,” he said in a recent statement. "In America, requiring English in the workplace is not discrimination; it’s common sense."

Time out, everyone. Let’s think about what really makes sense here.

Certainly, safety issues arise in some workplaces. The Federal Aviation Administration, for example, requires air traffic controllers to "be able to speak English clearly enough to be understood over radios, intercoms, and similar communications equipment."

Managers may also need employees who can speak English to English-speaking customers. And they may hear complaints if English-speaking employees say they feel excluded or gossiped about when colleagues converse in another language. Such situations, in fact, gave rise to English-only rules in the first place.

The bottom line on this issue remains unchanged, and is largely grounded in common sense. English-only rules have their time and place. If you have a legitimate problem – such as safety, communication with customers, or communication among employee – such a rule will probably pass muster. If, however, you are enacting such a rule to discourage non-Americans from working at your place of business, or if the rule overreaches by banning foreign languages in non-work spaces (lunch rooms, etc.), you should prepare yourself to unsuccessfully defend a lawsuit. As long as immigration remains a hot political topic, this issue is not going away. Being smart about these rules, though, will help you from being stung by their legal traps.

Columbus Dispatch on military status discrimination

This morning's Columbus Dispatch reports on Ohio's ban on military status discrimination, which will go into effect on March 23. For some information on what this law protects, take a look at my January 10 post: Ohio to prohibit discrimination based on "military status". The Dispatch's article quotes me on some the new law's effects:

The courts will eventually decide how to interpret the new law, though it's not hard to guess what some interpretations might be, experts say. For example, gender-based discrimination is illegal, and courts have decided that means that sexual harassment is illegal, said Jonathan Hyman, a labor and employment lawyer with the Cleveland firm of Kohrman, Jackson & Krantz.

"It's not a stretch that harassment because of military status could be illegal," he said. In that interpretation, an employee who is anti-war could violate the law by making fun of an activated military member's service.

Even the most ardent opposition of the Iraq war would be hard pressed to be in favor of discrimination against the men and women who volunteer to serve and defend our country. Nevertheless, by including military status as a protected class in our employment discrimination laws, the claims based on political speech has the potential to be injected into private workplaces like never before. If military status is protected, then in all likelihood, harassment because of military status will be actionable. Heated workplace debates about war policy could turn into discrimination claims. When Ohio's courts are asked to interpret this statute in a harassment context (and trust me, they will be asked), I hope that they seriously consider free speech versus what is truly a hostile environment, and rule accordingly.

Remedies available for destruction of computer files

Employers can take a lot of internal steps to protect confidential and proprietary information. Confidentiality and non-disclosure policies, limiting distribution to a need-to-know basis, passwords to secure data, locks for file cabinets, and security cameras are some of the more common tools at an employer's disposal. One thing that is difficult to guard against, though, is a disgruntled employee purposely sabotaging or destroying data, which is exactly what Fox News is reporting happened to an architectural firm in Jacksonville, Florida. An employee saw a help-wanted ad in the newspaper for her job, assumed she was about to be fired, went into the office late at night, and erased 7 years' worth of drawings and blueprints worth $2.5 million.

In cases such as these, where an employee erases data, the employer has a federal statutory remedy – the Computer Fraud and Abuse Act. This criminal statute generally prohibits one from causing the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization to a protected computer.

The seminal case for employee liability under this statute is International Airport Centers v. Citrin. In that case, Citrin decided to quit his employment with IAC and going into business for himself. Before returning his laptop to IAC, he wiped the hard drive loading a secure-erasure program, permanently erasing all of the stored data. His intent was not only to prevent his employer from recovering his work product, but also to hide the improper conduct in which he had engaged before he decided to quit. The 7th Circuit permitted IAC to pursue a private cause of action against Citrin under the Computer Fraud and Abuse Act. To date, no Ohio Court that I am aware of has ruled on whether this liability is available under the CFAA.

While courts are still wrestling with the limits of the CFAA in the employment context, it provides employers with a powerful weapon against disgruntled employees and employees who seek to harm an employer for anti-competitive purposes. To try to deter this type of conduct in your workplace, think about putting language into employee handbooks that informs employees that it would be a violation of federal law to engage in this type of industrial espionage.

[Hat tip: Strategic HR Lawyer]

DOL proposes FMLA changes

In June 2007, the Department of Labor published a 181-page report on the FMLA that concluded, "In the vast majority of cases, the FMLA is working as intended." So, if the FMLA is working just fine, why is today's New York Times reporting that the DOL has proposed new regulations to address corporate complaints that workers are abusing the FMLA?

The Times reports that the proposed changes would require workers to call in to request a leave before being eligible to take it, eliminating the current two-day grace period, with an exception for employees who are too ill to call in. The DOL also proposes tightening medical certification procedures to eliminate disagreements over whether an employees had done enough to show they qualified for leaves.

While this is certainly a step, it remains be seen if this is a step in the right direction for employers who are dying for some help with the FMLA quagmire.

What else I'm reading this week #15

This week has been a historic one for the Blog, as I passed 10,000 visits. Thank you to all my readers for helping me reach this milestone. Part of this success comes from links from other blogs, so allow me to return the favor.

John Phillips from The Word on Employment Law publishes Part IV in his series on Avoiding Employment Lawsuits, focusing on whether you should offer a terminated employee the opportunity to resign.

Dan Schwartz at the Connecticut Employment Law Blog reports on a 2nd Circuit case that reminds us of a very important wage and hour point: if an employee works overtime, you have to pay it even if it was not authorized and even if you have a policy that says it won't be paid unless authorized.

Michael Moore from the Pennsylvania Employment Law Blog continues his series on Five Things Every HR Generalist Should Know, this time focusing on the classification of workers as employees or independent contractors. For my thoughts on this prickly issue, check out Stripping independent contractor protections.

Workplace Horizons has a very thorough post on Microsoft's scary new employee monitoring patent.

D. Jill Pugh's Employee Handbooks Blog gives us some more pointers to keep in mind when firing an employee.

The Labor & Employment Law Blog gives us 5 ways to avoid whistleblower retaliation claims.

HR World reminds us that family-friendly policies help attract and retain employees. I've also written on the pros and cons of family friendly policies.

Alaska Employment Law comments on how well intentioned laws such as the ADA have unintended consequences.

Finally, Lou Michels from Suits in the Workplace reminds us of the dangers instant messaging can cause in the workplace.

An expectational argument for overtime pay

Another day, another wage and hour issue.

In 2006, IBM settled a wage and hour class action lawsuit for $65 million. In the lawsuit, it was alleged that IBM had misclassified 7,600 technical workers as exempt and therefore withheld overtime from them. As a result of the settlement, IBM has reclassified those employees as non-exempt, and has begun to pay them overtime. However, to ensure that the employees not be paid a higher overall salary, IBM has cut their salaries by 15% to compensate for overtime payments. The goal is not to punish the employees, but to keep their total compensation roughly the same as before the reclassification. [See IBM Cuts Base Salaries by Switching 7,600 Workers to Nonexempt Status.]

The blogosphere is starting to light up with criticism of IBM. From HR World: "Newsflash, people aren’t stupid: salary is guaranteed income and overtime is not. Can you say disgruntled employees?"

Let me offer a different perspective, based on expectations. Let's say someone is hired and told, "We are going to pay you $60,000 a year." So, twice a month, the employer expects to cut a check for $2,500 and the employee expects to receive a check for that amount. Now, let's say the Department of Labor comes in and says, "No, no, that is a non-exempt position. You have to pay that employee overtime." Why should that change the fact that the employee still expects to earn $60,000 per year? The employee is doing the same exact work, and should expect the same pay. The only thing that has changed is the Department of Labor's opinion on an exemption. But that determination should have no effect on the employee's salary expectation. So, if an employer wants to figure out what hourly rate, coupled with an average amount of overtime, will get an employee to the expected $60,000 per year, where's the harm? I need someone to explain to me how the employee has been hurt.

Fortune Small Business Magazine: The ticking time bomb of overtime

Fortune Small Business Magazine has a frightening article this week on fatal wage and hour mistakes. While I've written on this topic repeatedly, this article caught my eye because it spotlights an Ohio company that got caught in the Department of Labor's cross hairs.

Rod Cotner, owner of Jericho Mortgage in Lancaster, Ohio, was shocked when the U.S. Department of Labor showed up at his door to investigate a wage-and-hour lawsuit filed on behalf of his 54 loan officers and sales managers. His company was growing - sales exceeded $4 million that year - and his employees were profiting: "Some of the staffers named in the lawsuit were making over $150,000," he says. "After working in the industry for years, I'd never heard of this happening. Everyone pays their officers on a commission basis. How can someone who makes six figures a year demand back wages for his time?"

Ultimately, the lawsuit cost Cotner a $220,000 settlement of back overtime, untold legal fees, and has caused him to cut his staff to fewer than 10 employees. Needless to say, Jericho Mortgage exemplifies how a Department of Labor investigation can devastate a small business.

What really grabbed my attention was this quote: "Cotner, 37, incorrectly assumed that his employees were exempt under the U.S. Fair Labor Standards Act." Jericho Mortgage was not trying to game the system. He was merely doing what his years of experience told him was industry practice, figuring that commissioned loan officers who were earning a good living during the height of the mortgage boom couldn't possibly gripe about their wages. Nevertheless, this small business owner, who was not out to hurt anyone, has had his business decimated.

The fact is few if any companies do wage and hour perfectly. The biggest mistake the a company can make, though (apart from intentionally trying to skirt their obligations) is to assume that employees are not owed overtime. The regulations that govern who is and is not exempt are complex, tricky, and highly fact sensitive. Companies should be engaging lawyers to scrutinize their exempt classifications to ensure that all employees who are supposed to be paid overtime are being paid overtime. All it takes is one phone call by a disgruntled employee to the Department of Labor for any company to be in the same shoes as Jericho Mortgage. Ask anyone who's been audited by the DOL - those are very uncomfortable shoes to wear.

For other posts I've done on the topic of wage and hour audits and the proliferation of these claims, take a look at:

• Use a wage and hour audit to proactively head off claims
• Wage and hour litigation hits the big time
• Department of Labor investigations highlight important wage and hour compliance issues

[Hat Tip: California Labor & Employment Defense Blog]