Do you know? Eligibility for FMLA leave

FMLA leave continues to be one of the most confounding HR issues for employers. The first issue you often face is whether an employee seeking leave is eligible for the leave sought.

To be eligible for FMLA leave, an employee must meet two criteria:

1. The employee must have been employed for at least 12 months. These months, however, do not have to be consecutive and do not even have to immediately precede the request for FMLA leave. As long the employee has worked for the employer for a total of 12 months over any duration of time, this criteria is met.

2. The employee must have at least 1,250 hours of service during the previous 12-month period. “Hours of service” means hours worked. Thus, non-working time, paid or unpaid, such as vacations, holidays, furloughs, sick leave, other FMLA leave, and other time-off, do not count in the calculation of hours of service. This rule, however, has two key exceptions. First, an employee returning from fulfilling his or her National Guard or Reserve military obligation must be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the required 1,250 hours. Secondly, time that an employee would have worked but for an unlawful termination also counts towards the required 1,250 hours.

Because of these eligibility requirements, it is important to keep accurate records of work hours, even for exempt employees. If an employer does not keep an accurate record of hours worked, it will be presumed that the employee worked enough hours.

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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.

If you can’t trust your son…. Multi-million dollar jury verdict for boss’s son’s theft of trade secrets

According to the Youngstown Business Journal, a federal court jury awarded Allied Erecting & Dismantling $3.046 million for claims that its president’s son, Mark Ramun, misappropriated trade secrets while working for a competitor, Genesis Equipment & Manufacturing. The article describes the dispute:

At the center of the dispute is a product Allied … developed…. Between 1992 and 2001, court papers say, Mark Ramun had access to “highly confidential proprietary information and documentation” related to the Allied MT while employed at the company. Those trade secrets, Allied alleged, were given to Genesis after the company hired the younger Ramun in 2003. Allied argued in its case that Mark Ramun kept nearly 15,000 documents that contained “a substantial array of highly confidential and proprietary information.”

There is a good lesson to be learned from this story. When there is money to be made, even those who you trust the most are apt to let you down. I don’t know what the relationship between senior and junior Ramuns was like (although I’m pretty sure they won’t be sharing a Thanksgiving turkey anytime soon). I am confident, however, that dad never for a second thought his son would divert confidential information to a competitor. Even those who you trust the most should be locked down with agreements, and diligently pursued when they breach your trust.
[Hat tip: Trade Secrets Blog]

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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 #134

At the bottom of the page you’ll notice a new feature I’m trying out – a Wibiya toolbar. It adds new functionality to the blog, including a revamped search engine, a widget for recent posts, and new ways to share content via Twitter and Facebook. Leave a comment (or tweet me) and let me know what you think.

Here’s what I read this week:

Discrimination

• When talking about disabilities, put people first – from Stephen Meyer at the HR Cafe

• Sometimes, the equal opportunity jerk defense prevails – from Sindy Warren at the Warren & Hays Employment Law Blog

• Disgruntlement – from Charles Sullivan at the Workplace Prof Blog

• Employee’s Fetus was Creating a Negative Energy Field in the Work Place – from Philip Miles’s Lawffice Space

• How To Screw Up A Termination Case And Pay Big Money! – from Minnesota Labor & Employment Law Blog

• Fitness-for-Duty Exams: When Can They Be Used? – from Mindy Chapman’s Case in Point

• Age is Just a State of Mind: At Least I Think So Because Today Is My Birthday – from Michael Haberman’s HR Observations

Social Media

• Indiana Jurors Instructed Not to “Talk” About the Case on Social Networking Sites – from Molly DiBianca’s Going Paperless

• How to Increase the Likelihood Employees will Follow Your Social Media Policy – from Defending The Digital Workplace

• Facebook Posts As Evidence? – from Lawyerist

Wage & Hour

• The Importance of Clear, Accurate Notices – from FMLA Insights

• Who’s The Bimbo Here? Another Class Action Focusing On Independent Contractor – from Wage & Hour - Development & Highlights

Miscellaneous

• The Top 10 Worst Fictional Bosses – from Alanah Throop (Hat tip to Bob Sutton’s Work Matters)

• Supreme Court recap: Employment Law – from LawMemo Employment Law Blog

• On the Road Again: What State Cell-Phone Bans Mean for Employers – from Adria Martinelli at the Delaware Employment Law Blog

• The Importance of Follow Through: More Lessons from Wal-Mart – from Stephanie Thomas’s The Proactive Employer

• Would You Want to Know About a Triple Murder Charge on an Employment Background Check? – from Nick Fishman at employeescreenIQ Blog

• “We Will Not Threaten to Kill You” – The Problem with NLRB Enforcement – from Work in Progress

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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.

What LeBron James teaches us about employee retention

I'm about to make a startling confession -- I could care less if LeBron James signs with the Cavs, Knicks, Bulls, Heat, or becomes the first NBA player in space. It doesn't affect my life one iota (other than the latter outcomes exponentially increasing the availability of my firm's Cavs tickets, at which point I wouldn't want them anyway). Frankly, I'm disgusted by the way King James has handled himself over the past several weeks, waiting for every media outlet and NBA fan to genuflect before him hoping to catch any hint at his impending choice. Our country's southern coastline is an ecological disaster, and we treat the contract choice of someone who plays a game for a living as the most important story of the decade.

Tonights primetime announcement of his team-of-choice on ESPN takes the cake. It is shameless PR for a player that is in love with his own sense of self-importance. Think back 15 years. There was no bigger sports story than MJ's return from baseball to the Bulls.  Yet, he made his announcement with no press conferences, no media circuses, and certainly no hour-long ESPN specials -- just a simple two-word press release: "I'm back." And yes, I know that 2010 is a whole lot different than 1995 in terms of the immediacy of news and the cult of celebrity. But, class is class whether its 1995, 2010, or 2110. Some people have it, and some are proving that they don't.

The LeBron circus leads me to this thought. Yesterday, at the blog of the Harvard Business Review, Sharon Daniels posted Retaining a Workforce That Wants to Quit. Ms. Daniels shares these stats:

• In each of the past three months, more employees quit their jobs than were terminated.
• The cost of replacing an employee is estimated at up to 250% of annual salary.
• Approximately one in every four employees plan to leave their jobs within a year. 

She correctly concludes that the three biggest reasons employees leave jobs -- even in a down economy and tight job market -- are a lack of growth opportunities, dissatisfaction with compensation, and employees feeling their contributions aren't being recognized. As for employers:

Regrettably, too many managers unwittingly encourage employees to walk out because they regard them as replaceable cogs in a wheel. The key to retaining valued employees is to manage them person-to-person rather than with one-size-fits-all management. Every employee marches to a different drummer; successful managers don't make them parade in lockstep.

In other words, your retention efforts have to be personalized. One more thought -- your organization need to have a back-up plan in the event your LeBron leaves. The Cavs have none, and are facing years of obscurity and mediocrity if LeBron chooses Miami (as is now being reported).

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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.

2nd Circuit issues groundbreaking ruling on sales reps and overtime payments

I’ve written a lot in the past about FLSA exemptions, particularly the administrative exemption and the outside sales exemption.

Yesterday, the 2nd Circuit issued a landmark ruling reconciling these two exemptions in the context of pharmaceutical sales reps. In In re Novartis Wage & Hour Litigation [pdf], the court was faced with the claims of approximately 2,500 Novartis reps who claim they are owed back overtime. Novartis claims it did not have to pay overtime to this class of employees, either because they qualified as exempt outsides sales people or exempt administrative professionals. The court disagreed.

The 33-page opinion is a must-read for any business that employs salespeople and pays them as exempt. The highlights:

Outside sales exemption: The sales reps do not qualify for the outside sales exemption because they do not actually sell any products. Instead, in their brief sales calls on physicians, they merely promote their employer’s product. The physician cannot neither buy directly from the rep, not commit to making a purchase:

In sum, where the employee promotes a pharmaceutical product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug in exchange for anything of value, cannot lawfully take an order for its purchase, and cannot  lawfully even obtain from the physician a binding commitment to prescribe it, we conclude that … the employee has not in any sense … made a sale.

Administrative employee exemption: The sales reps do not qualify for the administrative employee exemption because their jobs lack the exercise of discretion and independent judgment. Specifically, the court pointed to the reps’ lack of any role in planning marketing strategies or formulating the core messages delivered to doctors, inability to deviate from the promotional core messages or to answer any questions for which they have not been scripted, and quotas for doctors’ visits, sales pitches, and promotional events.

Three things about this opinion stand out to me:

1. Novartis has taken an absolute beating this summer. As Dan Schwartz at Connecticut Employment Law Blog points out, it was only seven weeks ago that a jury tagged the pharmaceutical company for a quarter-billion dollars in a sex discrimination lawsuit brought by female sales reps. Now, pending a reversal by the full 2nd Circuit or the Supreme Court, it is going to be on the hook for an untold amount of back overtime to another group of sales reps.

2. If your business employs salespeople, this opinion has the potential to dramatically alter how you pay them. At a minimum, you should be retaining employment counsel to review—and potentially overhaul—the classifications of your employees.

3. The Department of Labor is proving itself to be a formidable ally of the worker on the issue of FLSA exemptions. In March, it issued its game-changing Administrator’s Interpretation in which it pronounced, for the first time, that mortgage loan officers are generally non-exempt positions. In this case (as reported by Bloomberg News), the DOL submitted a brief in supporting the sales rep’s position. Your business should be looking at employees’ FLSA classifications with the same critical eye as the DOL to avoid potential problems down the road.

[Hat tip: Howard Bashman’s How Appealing]

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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.

The dark side of discrimination litigation

The San Francisco Chronicle reports that a jury awarded a former applicant for a job a Lucasfilm $113,800 in damages on a pregnancy discrimination claim. The jury concluded that the media company withdrew its job offer to Julie Veronese after she disclosed her pregnancy.

This case proves two important points about discrimination litigation:

1. The smoking-gun piece of evidence in the case was an email Veronese's supervisor-to-be in which she expressed concern about Veronese's ability to do the job while pregnant. This case illustrates the dangers of email and proves the point that if you should not put in an email what you do not want shown to a jury or published in the newspaper.

2. Veronese's attorney is reported as saying that she will seek $1.2 million in attorney's fees from Lucasfilm. While the number is stagging, what is more staggering is that one can collect ten-fold in attorney's fees than what she recovered as damages in the actual litigation. Many claims carry risk for damages, and a six-figure verdict is nothing to sneeze at. The real risk in many discrimination lawsuits, however, is the attorney's fees that a successful plaintiff can recover. The risk of a fee award must play into the exposure calculus in strategizing the defense of any discrimination claim. Failing to take both the likelihood of a fee award and the potential amount of that award into account very early on in litigation could lead to an expensive surprise at the end of the case.

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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 #133

Jeffrey Hirsch at the Workplace Prof Blog reports that the NLRB has announced its plan to handle some of the nearly 600 cases invalidated by the Supreme Court in New Process Steel. According to Professor Hirsch:

[T]he Board is addressing the cases currently pending in court—not the cases already decided in court, cases in which the losing party complied with the NLRB order, or cases that may be brought to court but haven’t yet. As expected, the Board will rehear these pending cases with a three-member panel that will include Chairwoman Liebman and Member Schaumber, who were on the original two-member panel. This makes sense, as it means that only one member will have to start from scratch on these cases.

The story of the week, however, comes via OnPointNews. I’ll let the title speak for itself. You’ll have to click over for the details – Bias Suit Claims New Age Boss Fired Woman for Fetus.

Like most of America, I’m off on Monday, enjoying the unofficial 4th of July. I’ll be back with fresh content on Tuesday. In the meantime, enjoy what I read this week:

HR

• Anti-nepotism policies: implement and exercise with caution – from Donna Seale’s Human Rights in the Workplace

• When a Storm Hits, What's an Employer to Do In Connecticut? – from Dan Schwartz’s Connecticut Employment Law Blog

• Top 10 Things I Learned as a Summer Intern – from KnowHR Blog

Wage & Hour

• BP Capping Wages for Recovery Workers at $200/Day – from Work in Progress

• No Wonder this Job is So Hard: Contradictory Messages From the Government – from Michael Haberman’s HR Observations

• DOL Testimony Regarding The Employment Misclassification Prevention Act And Misclassification Enforcement Efforts – from Overtime Advisor

• He Shoots … and Misses! Does the World Cup Invite FMLA Abuse? – from FMLA Insights

Discrimination

• Protecting yourself from age discrimination claims – from Employment Law Bits

• New York cop’s $80,000 bias award – from Walter Olson’s Overlawyered

• Educational requirements can be discriminatory, according to the EEOC – from Sindy Warren at the Warren & Hays Employment Law Blog

• Still No GINA Regs, But New Website on the Basics – from Delaware Employment Law Blog

• The Fourth Circuit Undercuts the “Equal Opportunity Jerk” Defense – from Maryland Employment Law Developments

Litigation

• Is Your Document Retention the Stuff of Nightmares? – from Stephanie Thomas at Compensation Cafe

• Discovery: Who to depose—and how to get ready – from What About Clients?

• Opening Statement? We’ve got an app for that – from Deliberations

Whistleblowing

• Financial Reform Bill Contains Several Provisions Impacting the Workplace – from Washington D.C. Employment Law Update

• SOX Whistleblower Must Actually Believe Employer’s Conduct Was Illegal, Says Eleventh Circuit – from Florida Employment Law Blog

And, finally, since I live in Cleveland and cannot escape the circus that is LeBron James, Matthew Gibson shares his thoughts at his Wills & Wealth blog – I Can't Take it Anymore. It's Time to Talk LeBron.

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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.