Tweeting away your job

Before yesterday, former major league pitcher was likely most famous for giving up Barry Bonds 756th homer. This morning, he is perhaps more well known for the racially insensitive tweet that has cost him his sports radio hosting gig in Dallas.

According to the Dallas Morning News, Bacsik said he drunkenly tweeted, “Congrats to all the dirty mexicans in San Antonio” after watching the Spurs beat the Mavs on Sunday night. To his benefit, Bacsik at least realizes his mistake. He has removed the offensive tweet, and replaced it with the following apology on this Twitter account.

ESPN.com quotes Bacsik’s words of wisdom for all employees:

When you tweet like I did, you can’t see the sarcasm. It’s not a good joke. You can’t tell if it was pure hate or sarcasm. I never got to say anything. My tweets were talking for me. When you tweet like that, it’s not a playful, harmless thing. It’s not what it was meant to be.

A disciplined or terminated employee may not be as understanding or remorseful as Bacsik. So that employees understand your expectations about responsible social networking, it is best to have a policy. That policy should spell out to employees that what they post online is public, that anything in cyberspace can be used as grounds for discipline or termination, and that there are consequences for posting anything that negatively reflects on your business.

For more on drafting a social networking policy, see Drafting a social networking policy: 7 considerations.

---

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.

Do you know? Paying overtime to salaried, non-exempt employees

In my never-ending quest to show you how many different ways you can screw up paying your employees under the federal wage and hour laws, today I am going to talk about how to properly calculate overtime payments for salaried, non-exempt employees.

An employer has two choices in how to pay overtime to a salaried non-exempt employee: by a fixed work week or based on a fluctuating work week. For reasons that will be illustrated below, the latter is a much more cost-effective option for most employers.

By a Fixed Work Week

1. If the employee is paid solely a weekly salary, his regular hourly rate of pay—on which time and a half must be paid—is computed by dividing the salary by the number of hours that the salary compensates. For example, If an employee is hired at a weekly salary of $525, which is intended to be compensation for a regular 35 hour work week, the employee’s regular rate of pay will be $15 per hour ($525 / 35). If that employee works overtime (more than 40 hours in a given work week), he or she will have to paid $22.50 for each overtime hour worked. Thus, in a 45-hour week, the employee would be paid $637.50.
   
2. Where the salary covers a period longer than a work week, such as a month, it must be reduced to its work week equivalent. Thus, for example, a monthly salary can be converted to a weekly salary by multiplying it by 12 and dividing by 52. Once the regular weekly salary is calculated, the analysis is the same as #1 above.
   

On a Fluctuating Work Week

1. Often times, the number of hours a salaried employee works will vary from week to week, depending on the given needs of the job. One might work 40 hours one week, 45 the next, and 38 the week after that. An employer and employee can agree that a salary will cover all straight time pay for all hours worked in a given week, no matter how few or how many. Payment for overtime hours at one-half such rate satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate as part of the salary. And, that overtime premium will vary from week to week depending on the number of hours worked.
   
2. To use this method of overtime calculation, there has to be a clear mutual understanding of between the employer and employee that the fixed salary is compensation (apart from overtime premiums) for the hours worked each work week, whatever the number.
   
3. This “fluctuating workweek” method of overtime payment may not be used unless the salary is sufficiently large to ensure that there will be no work weeks in which the employee’s average hourly earnings from the salary fall below the minimum wage.
   
4. For example, taking our $525 salary from above, in a 45-hour work week, the hourly rate would be $11.66 ($525 / 45). But, for the extra 5 hours the employee would only be owed an additional $29.15 ($5.83 * 5), for a total weekly compensation of $554.15. The fluctuating work week saves this employer $83.35 in wages for the week. Thus, it is easy to see why the fluctuation work week is the preferred method for calculating overtime premiums for salaried non-exempt employees.

Wage and Hour audits are not without their risks (but are still necessary)

I’ve long preached the benefits of proactive wage and hour audits. In fact, in the nearly three years I’ve been writing this blog, I’ve written at least 10 different posts on this issue. (For a summary and list of links, jump here). A story posted last week at Wage & Hour—Developments & Highlights caught my eye. It illustrates that wage and hour audits have a downside of which employers must be aware, but should not deter employers from implementing this important proactive measure.

In Wlotkowski et al. v. Michigan Bell Telephone Co., a federal judge conditionally certified a class of workers who claim they are owed overtime as a result of being misclassified as “exempt”. The class is comprised of employees who are currently classified as “non-exempt.” They are suing to recover unpaid overtime for the time during which their employer had previously allegedly misclassified them as exempt. Because their job duties didn’t change when their pay classification changed, they questioned why they had been working for years without being paid overtime.

Employers may read this case and decide that they are better off burying their heads in the sand and ignoring wage and hour violations. This is a bad idea. Here’s what happens. A terminated employee goes to see a lawyer about a wrongful discharge lawsuit. The lawyer then asks this question: “Tell me about how you were paid.” The next thing you know, you are defending a class action and spending hundreds of thousands, if not millions, of dollars in legal fees, back wages, and potential liquidated damages and the plaintiffs’ attorneys’ fees. A wage and hour audit conducted by an experienced attorney can help stop this scenario from ever happening.

This Wlotkowski case teaches a very important lesson. When you audit your wage and hour practices, you should be prepared to pay for any mistakes that you find. It is much less costly to pay off a discovered mistake to than to defend a lawsuit in which you have, in essence, admitted liability.

---

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 #124

This week brought us two huge employment law stories, one of which I covered this week and one which I’ve covered in the past.

On Monday, the Supreme Court agreed to review the issue of the applicability of the “cat’s paw” to discrimination cases. For my thoughts on this issue, jump over to The Return of the Cat’s Paw. For others’ thoughts, I recommend: Fitzpatrick on Employment Law, Maryland Employment Law Developments, World of Work, SCOTUSblog, Washington D.C. Employment Law Update, Daily Developments in EEO Law, Workplace Prof Blog, Michael Fox’s Jottings By An Employer’s Lawyer, and LawMemo Employment Law Blog.

Also on Monday, the Supreme Court heard oral argument in Quon v. Arch Wireless, which may decide the issue of an employee’s right of privacy in non-work related emails and text messages on employer-owned and issued equipment. I covered this case last June, with the 9th Circuit’s original decision, and will cover it again when the Supreme Court issues its decision. In the meantime, the following blogs covered the oral argument: Rob Radcliff’s Smooth Transitions, Abovethelaw.com, How Appealing, SCOTUSblog, Philip Miles’s Lawffice Space, Dan Schwartz’s Connecticut Employment Law Blog, LawMemo Employment Law Blog, Workplace Prof Blog, and Workplace Privacy Counsel.

Here’s the rest of the best I read this week:

Discrimination

• Frivolous Litigation and the EEOC – from The ChamberPost

• Sexting at Work: What is an employer to do? – from Jennifer Hays at the Warren & Hays Employment Law Blog

• Colwell v. Rite Aid Corp.: Employer May Be Required To Modify Work Schedule to Accommodate Commuting Difficulties – from A Case of the Mondays

• The ADA: Headaches or a Litigation Perfect Storm? – from GT LE Blog

• Male Sexual Harassment Claims On The Rise – from Wyatt Employment Law Report

Wage & Hour

• Today is Equal Pay Day – from Stephanie R. Thomas, Ph.D.

• Obama Establishes National Equal Pay Day – from Washington D.C. Employment Law Update

• NPR on the Paycheck Fairness Act – from Workplace Prof Blog

• FMLA Right to Commence Leave is Not Absolute, 11th Circuit Holds – from The FMLA Blog

• Health Care Reform -- What Employers Need To Know Now – from Hunton Employment & Labor Law Perspectives™

• New Federal Workplace Lactation Law–Why It’s Good for Families, Good for Business – from Corporate Voices for Working Families

• Pick Your Poison: An IRS Audit or Visit to the Proctologist? – from Compensation Cafe

• House Committee Holds Hearing on Work-Life Balance Award Act – from Washington D.C. Employment Law Update

Social Networking

• The backstory on the lost iPhone 4 – from The Apple Core

• Social Media Revolution & What it Means for Employers – from Defending The Digital Workplace

Labor Relations

• Shock! Not all unions like card-check... – from LaborUnionReport.com

• SEIU’s Anna Burger: Push NLRB to Regulate, Congress to Use Reconciliation to Push EFCA – from Labor Relations Today

• The Future of Unions: A Key Question – from Michael Fox’s Jottings By An Employer’s Lawyer

• President Re-Submits NLRB Nominations of Becker, Pearce to Senate – from Labor Relations Today

Background Checks

• Boy Scouts Hit With $1.4 Million Plus Another $25 Million (Maybe) – from The Word on Employment Law with John Phillips

• Report: Disney Bus Driver Arrested on Child Pornography Charge – from StitchKingdom.com

• Negative Employment Verification Leads to Multimillion Dollar Judgment – from Nick Fishman at the employeescreenIQ Blog

• The Use of Credit Checks by Employers is Under Attack on Many Fronts—Oregon Statute is but One Example – from Fitzpatrick on Employment Law

Miscellaneous

• 75 Online Legal-Writing Resources, Just in Time for Summer Associates – from Molly DiBianca’s Going Paperless

---

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.

Today is “Take Our Daughters and Sons to Work” Day

I’ve brought my daughter to work before, but at not yet 4 years old, an entire day in the office might be a little much for her (and me). So, instead of taking her to work today, I’m posting the video of her all-time favorite song, Seven Days of the Week (I Never Go to Work), by They Might Be Giants. Bonus points for me because it actually has something to do with employment.

---

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.

The DOL confirms that it has its eye on unpaid internships

Two weeks ago I reported that the Department of Labor was going to start cracking down on for-profit employers that use the services of unpaid interns. The proof, as they say, is in the pudding, or in this case, on the DOL’s own website. Just moments ago the DOL released Fact Sheet #71, entitled, Internship Programs Under The Fair Labor Standards Act. In this fact sheet, the DOL affirms that internships in the “for-profit” private sector will most often be viewed as employment, which must be paid at least the minimum wage and overtime compensation for any hours in excess of 40 in a work week.

The six factors that comprise a lawful unpaid internship remain as they have been for years, and as I discussed a couple of weeks ago. Yet, the DOL went further, and explained how most internships are, in reality, paid employment in disguise as opposed to extensions of education or training:

[I]f the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work…. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.

If I was an employer, I would be very careful in the use of unpaid interns. As the publication of Fact Sheet #71 points out, the DOL is watching.

---

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.

The Return of the Cat’s Paw

No, this is not a review of a 70’s B movie. The Supreme Court has agreed to review a case concerning the “cat’s paw” theory of discrimination liability. The case, Staub v. Proctor Hosp. (7th Cir. 3/25/09) [pdf], involves the termination of an army reservist who claims discrimination based on his association with the military under USERRA.

Here’s how the 7th Circuit eloquently described the origins of the “cat’s paw”:

One would guess that the chances are pretty slim that the work of a 17th century French poet would find its way into a Chicago courtroom in 2009. But that’s the situation in this case as we try to make sense out of what has been dubbed the “cat’s paw” theory. The term derives from the fable “The Monkey and the Cat” penned by Jean de La Fontaine (1621-1695). In the tale, a clever—and rather unscrupulous—monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat’s paw is a “tool” or “one used by another to accomplish his purposes.” Webster’s Third New International Dictionary (1976).

In discrimination cases, the “cat’s paw” refers to a decision maker who lacks an unlawful bias, but who bases the adverse employment decision on the influence of another with such a bias. The Staub court described its interpretation of the “cat’s paw”:

[W]here an employee without formal authority to materially alter the terms and conditions of a plaintiff’s employment nonetheless uses her “singular influence” over an employee who does have such power to harm the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the employer….

[W]here a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision, the employer is not liable for an employee’s submission of misinformation to the decision maker.

It is likely that the cat’s paw will survive the Supreme Court’s review in one form or another. It is unclear, though, whether the Court will sanction Staub’s employer-friendly “singular influence” standard as the standard-bearing definition of the cat’s paw.  

Nevertheless, as long as cat’s paw liability is a valid theory of discrimination, it is imperative that decision makers verify the information upon which they rely. Unless the decision maker has first-hand knowledge of the reasons justifying the action, he or she should undertake some investigation and independently verify that the decision is the result of a legitimate non-discriminatory reason and not an unlawful animus.

---

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.