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