WIRTW #88

A few weeks ago I cautioned about the dangers that lurk in positive recommendations on LinkedIn. Two of my blogging brethren disagree. Read the opposing viewpoints of Dan Schwartz at the Connecticut Employment Law Blog and Molly DiBianca at the Delaware Employment Law Blog.

I’ve often preached on the importance of treating employees fairly. Becky Regan at Compensation Cafe agrees.

I’ve previously reported that employers might be at risk for unpaid wages for non-exempt employees who check work-related email off-the-clock (Overtime pay for reading emails and Can't get away from the office). It seems that plaintiffs’ lawyers are starting to take notice of this issue. According to Kim Licata at Fair Labor Standards Act Law, “T-Mobile USA has been sued in the Eastern District of New York by its retail sales associates and supervisors who allege that they were not compensated for "off-the-clock" activities linked to Blackberrys and other hand-held device.”

The recent changes to the proposed Employee Free Choice Act continue to garner a lot of attention. For more thoughts on this issue I suggest Michael Fox’s Jottings By An Employer’s Lawyer and the EFCA Report.

Jennifer Hays at the Warren & Hays Blog offers some practical information on what to do and what not to do during a union organizing campaign.

James Gelfand at the Chamber Post breaks down the impact the pending health care legislation will have on employers.

World of Work shares 7 ways employers can save on litigation costs.

This week has a couple of good posts on employees’ use of vacation time: Philip Miles’s Lawffice Space shares his thoughts on mandatory vacation days, while Kari Henley at Today’s Workplace thinks we all work too hard and praises the introduction of the Paid Vacation Act of 2009, which would amend the Fair Labor Standards Act to require that employers provide all employees with 1 week of paid leave per year.

Kris Dunn, The HR Capitalist, has some suggestions on what to do when an employee has a positive drug test.

Workplace Privacy Counsel suggests that laws against online harassment may aid employers battling disgruntled ex-employees.

Wage and Hour Counsel shows how reliance on a Department of Labor opinion letter can save your bacon in a wage and hour lawsuit.

Strategic HR Lawyer has some advice for employees on what not to post on Twitter.

Finally, Dan Schwartz at the Connecticut Employment Law Blog uses a personal anecdote to illustrate the importance of communicating with the complainant in a workplace investigation.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best Of... Department of Labor to step up enforcement; employers should step up self-audits

You may have noticed that I write a lot about wage and hour issues. I do so because it’s an issue that often gets even well-intentioned businesses into trouble. As if employers don’t already have it bad enough with the explosion of wage and hour class action litigation, this week brings us news that new Labor Secretary Hilda Solis promises to “reinvigorate the work” of the DOL’s Wage & Hour Division. Her quote comes in response to an investigation by the General Accounting Office, which reports that the Wage & Hour Division has mishandled hundreds of cases. In yesterday’s New York Times, Steven Greenhouse reports:

The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.

In light of the DOL’s planned stepped-up enforcement, employers must be extra vigilant in uncovering wage and hour violation in their own workplaces. A wage and hour audit feels like an unpleasant medical exam. The investigator is not necessarily limited to the alleged violation, and will turn your workplace upside-down, pouring through years of records and privately interviewing your employees. And, once you are on their radar, it is hard to get off. In other words, they’ll be back to make sure you are staying on the path of all that is right and just. For employers, the best advice I can give is to get out ahead of this issue. Take a hard look at all of your current wage and hour issues: employee classifications, meal and rest breaks, off-the-clock issues, and child any workers. Make sure you are 100% compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is “card check” really dead?

Okay, so today is not “Best of…” as I had promised on Friday. This story is too important to pass on. The New York Times is reporting that Senate Democrats may have worked out a compromise on the Employee Free Choice Act that would eliminate its controversial card check provisions. The equally controversial mandatory arbitration provisions remain in the floated compromise.

For more info on this evolving story, check out what some of my fellow bloggers have to say:

• The EFCA Report: EFCA "Compromise": Quick Elections and More...
• World of Work: Democrats Delete Card Check from Employee Free Choice Act
• Dan Schwartz: EFCA "Compromise" in the Works?
• The Word on Employment Law with John Phillips: EFCA: Card Check Bites Dust
• Workplace Prof Blog: New EFCA Compromise, with no Card-Check
• Labor Pains: Dems Say They Will Drop Card Check From EFCA
• Talking Points Memo: EFCA Compromise? Moderates To Embrace Labor Reform...Without Card Check
• Lawffice Space: EFCA Only Part-Dead

Before we all get excited that card check might be going the way of the dodo, let me suggest that Senate Democrats floated this story to the Times as a trial balloon to see if enough moderates would bite to pass some form of labor reform this year. In other words, the only way we’ll know if there is a compromise is if and when President Obama signs the law. Stay tuned for more information on this story as it develops.

The rest of the week … best of (I think).

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #87

Many harassment cases involve things being rubbed. Walter Olson, whose Overlawyered just celebrated its 10th anniversary, brings us what may be the greatest harassment lawsuit ever filed: “Saudi family sues genie, alleges harassment.” 

If you need yet another reminder why it’s important to have a social networking policy for your organization, the Strategic HR Lawyer discusses the 20.2 million people between the ages of 35 and 54 who are registered on Facebook. Ellen Simon, writing from the employee’s perspective at Today’s Workplace, gives another reason to have such a policy  – employees terminated for writing something in a blog.

World of Work reports on a Tennessee court which held that an employee’s “shy bladder syndrome” qualified as an ADA-protected disability.

Debra Weiss at the ABA Journal Blog notes that GE’s CEO thinks that women make risky career moves when they take time off to start families.

Jason Morris at the Employeescreen IQ Blog reports on newly introduced legislation in Congress, the Equal Employment for All Act, that would prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.

Dan Schwartz at the Connecticut Employment Law Blog talks about some the legal risks inherent in mandatory furloughs.

Molly DiBianca at the Delaware Employment Law Blog provides a very good summary on the legal issues and risks inherent in employment testing.

Jay Shepherd at Gruntled Employees debates the pros and cons of noncompete agreements.

Adams Drafting deconstructs the use of the word “salary” in a separation agreement in relation to the inclusion of bonuses.

Mark Toth at the Manpower Employment Blawg talks about two terms that you might not be familiar with – “E-Verify” and “No-Match.”

The Arkansas Employment Law Blog discusses the importance of properly classifying administrative employees under the FLSA.

Michael Haberman’s HR Observations observes ageism in the workplace.

I’m on a working vacation next week – speaking on the FMLA at the SEAK 29th Annual National Workers' Compensation and Occupational Medicine Conference on Cape Cod. I’ll be running “Best Of” next week, but should be back next Friday with a fresh set of the week’s best links.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC enters the fray on proper waivers of discrimination claims

As unemployment heads towards 10%, layoffs have unfortunately become the norm for many employers. As predicted, the EEOC has seen both a spike in age discrimination charges and requests by employers for laid-off employees to sign waivers in exchange for severance packages. I’ve previously provided guidance to employers to help navigate the tricky waters of lawful age discrimination waivers under the Older Workers Benefit Protection Act: Refresher on age discrimination waivers and Defining the proper "decisional unit" is key in legitimacy of RIFs. This week, the EEOC entered the fray by publishing a short Q&A to help employers and employees understand waivers of discrimination claims in severance agreements.

While this EEOC guidance is more geared to employees, it offers some good nuggets of information for employers considering offering severance packages to terminated employees:

1. Severance is not mandatory. No law requires a company to offer a laid-off or otherwise terminated employee severance. Nevertheless, in all but the most egregious of terminations, employers should consider severance pay in exchange for a signed release if for no other reason than the peace of mind that a comprehensive waiver provides. I can reasonably assure employers the that total cost of severance paid out to all employees in a year will be less than the cost of defending one discrimination lawsuit.

2. Any waiver must be “knowing and voluntary.” Is the agreement clearly written in a manner understandable to the employee? Was the employee given enough time to think about whether to accept the severance offer and sign the agreement? Was the employee encouraged to talk to a lawyer before signing? Was the employee given the chance to negotiate terms? Was the employee offered something above and beyond that which is already owed to him or her?

3. Agreements cannot bar EEOC charges. No severance agreement can prohibit an employee from filing a charge with the EEOC, or limit an employee’s right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC. Any provision in a waiver that attempts to waive these rights is invalid and unenforceable. An agreement can, however, waive an employee’s right to any monetary remuneration from a successful EEOC proceeding.

Most importantly, employers act at their own peril by offering severance agreements to employees without having them prepared, or at a minimum reviewed, by an attorney before presentation to the employee. The EEOC has done employers a disservice by giving some form language for severance agreements, which may or may not fit an employer’s specific need. It may save a few dollars to use a form found on the Internet without first consulting an attorney. It will cost exponentially more to hire a lawyer to fix a mistake after the fact, especially if the mistake does not come up until an ex-employee files a lawsuit because of a loophole or error in a severance agreement.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Employees’ social networking continues to confound employers

Let’s suppose that you learn that a group of employees have created an on-line group that’s sole purpose is to provide a forum for other employees to bash your company. Do you have the right to require the employees to provide the password to enable you access the forum and its members? According to one federal court in New Jersey, the answer is no.

According to Law.com, a federal jury has awarded $15,000 to two restaurant employees terminated for criticizing their employer on MySpace. The jury determined that by requiring the employees to divulge their passwords, the employer violated the Stored Communications Act, a federal law that extends liability to parties that exceed authorization to access electronic communications.

This area of the law is decidedly gray. The question for you, as an employer, to ask yourself before you undertake a gray-area employment practice is whether you want to foot the legal bill to prove its legality if a lawsuit is filed. In the case discussed above, the restaurant did not have to access the on-line forum for grounds to terminate the two employees who administered it. A manager had reliable information that the two at-will employees were acting unprofessionally by flaming management. While the damages to be paid were low, the attorneys’ fees expended by the employer to defend its practice were certainly significantly higher. Companies should consider letting others push the legal envelope and only adopt tried and tested employment policies and practices that clearly pass legal muster.

Do you know? Ohio has criminal penalties for unauthorized computer use or access

Ohio has criminal statutes that cover employees’ unauthorized use or access of their employers’ computers. Ohio Revised Code 2913.04 criminalizes, as a felony, the unauthorized use of property and the unauthorized access to a computer:

(A) No person shall knowingly use or operate the property of another without the consent of the owner or person authorized to give consent.

(B) No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.

State v. Wolf (Ohio Ct. App. 4/28/09) [PDF] illustrates how these statutes operate.

Richard Lee Wolf worked at the Shelby, Ohio, Wastewater Treatment Plant. When a supervisor was cleaning files off an old computer, he came across a nude photo of Wolf. During the subsequent investigation, Wolf admitted that he had visited a website called “Adult Friend Finder” during work hours to meet women, some of whom asked for a nude picture. The city then conducted a forensic examination of the computer’s hard drive. and found 703 pornographic photos. It also found several sexually explicit emails, such as the following, in which Wolf appears to have been soliciting services from a dominatrix named Madam Patrice:

First off, thank you for taking the time to remember me. I have yet to be at the mercy of a true dom mistress. You are incredibly seductive, and I would love for you to be the first one to ‘break me in’. We’re talking ‘light stuff’ here, OK! Also, I have never been involved in any monetary transactions or arrangements….so this is all new to me. Obviously I would be with you for at least an hour, but I would prefer to be with you for at (sic) 2 hrs, contingent on your discount. Is it possible to spend the last half hour or so being your lover? Whatever is possible, please let me know. I look forward to hearing from you again. Have a great weekend. Rick.

When the city confronted Wolf with the mass of photos and emails, Wolf admitted that he had spent over 100 hours of work time on the internet for personal business. As a result of the investigation, Wolf was not only fired, but also successfully prosecuted under 2913.04. The court found that the convictions were warranted because the city had not authorized or consented to Wolf’s use of his work computer to upload nude photos or himself, to access pornographic websites, or to solicit sex for money.

Only extreme case will justify an employer filing criminal charges against an employee for misuse of work computers. Nevertheless, the Wolf case illustrates the importance of periodic monitoring how employees use workplace technology.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.