WIRTW #169 (the madness edition)

If you wonder why office productivity sinks like a rock for the next two weeks, look no further than all of your employees checking their brackets while clogging up your computer network watching live college basketball feeds. Three of my fellow bloggers shared their thoughts this week on March Madness’s effect on the workplace:

• March Madness and the Workplace – from Philip Miles’s Lawffice Space
• March Madness in the Office – from Evil HR Lady
• An Employer’s FMLA Nightmare? Hooters Offers Fake “Doctor’s Notes” to Skip Work During NCAA Tourney – from FMLA Insights

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

Discrimination

• When sexting 64 times in 2 1/2 hours ISN’T sexual harassment – from Eric Meyer’s The Employer Handbook Blog
• New Bill Bans Discrimination Against Unemployed – from Stephanie Thomas’s The Proactive Employer Blog
• From Cats Paw to Proximate Cause: A Short Trip? – from Workplace Prof Blog
• “Notorious Nine” mistakes by employers in dealing with the EEOC – from Employment and Labor Insider
• Must You Allow Telecommuting as an ADA Accommodation? – from HR Daily Advisor
• EEOC Holds Hearing on Employment of Individuals with Intellectual and Psychiatric Disabilities – from Washington D.C. Employment Law Update
• Service Animals Limited to Dogs and Some Miniature Horses Under New ADA Rules – from World of Work
• ADA and Drug Addiction: The Ninth Circuit Provides Guidance – from Delaware Employment Law Blog
• The Cost of Employment Laws – from Mark Toth’s Manpower Employment Blawg
• EEOC Provides Insight Into Its Increase in Charges Filed – from Labor & Employment Law Perspectives
• Back to basic on the defense – from Work Matters

Labor Relations

• Union-Controlled NLRB Approves Union Thuggery in Union Elections – from LaborUnionReport.com
• Secret Ballot Protection Act Introduced in House – from Seth Borden at Labor Relations Today
• Questioning Dress Code Was Protected Activity, NLRB Holds – from Joe’s HR and Benefits Blog
• The Problem with Unions – from Maryland Employment Law Developments
• NLRB General Counsel Issues Memorandums Targeting Backpay Mitigation and Calculation – from Labor Relations Counsel
• Dress codes: protected, concerted activity and the non union employer – from Michigan Employment Law Connection
• Women bear brunt of union-busting – from Politico

Social Media & Workplace Technology

• Moms feel stress, guilt from work emails, texts at home – from Eve Tahmincioglu at Careers on MSNBC.com
• Tweets That Will Get You Fired – from The Not-So Private Parts
• Can an Employee Be Terminated for Simply Surfing the Internet? – from TLNT
• Who Owns My Social Media Contacts and Posts? – from Screw You Guys, I’m Going Home
• Will Tweets Destroy the NFL and NFLPA CBA Negotiations? – from Shear on Social Media Law
• Now this is how you use a corporate blog! Chrysler does it right after Twitter F-bomb – from Social Media Today

HR & Employee Relations

• Court: Failure to Follow Training Program Does Not Give Rise to Breach of Contract Claim – from Daniel Schwartz’s Connecticut Employment Law Blog
• Candidate Friendly Background Check Practices – from employeescreenIQ Blog
• Emailed Policy Updates for Noncompetes - Not A Best Practice – from Trade Secret / Noncompete Blog
• Is It Legal For An Employer To Charge A Potential Employee For A Background Check? – from fyiscreening.com
• Drug and Alcohol Testing of Employees in the Workplace – from Minnesota Labor & Employment Law Blog
• Protecting Trade Secrets Through Employee Surveillance: Risky Business – from Trade Secrets & Non-Compete Blog
• Tips for Dealing with Workplace Bullying – from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Daylight Savings Time Has FLSA Implications: Employers Beware – from Wage & Hour - Development & Highlights
• Knock, Knock: We Are The Government And We Are Here To Help (Especially If You Want To Sue Your Employer) – from Employment Essential
• Supreme Court Affirms Second Circuit Court's Ruling in Wage and Hour Case: Enormous Implications for the Pharmaceutical Industry – from Employment Lawyer Blog
• Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer's Telephone Calls – from Employer Law Report
• Ninth Circuit Defines FMLA Interference Claim – from What's New in Employment Law?
• Correctly Treating Travel Time As Hours Worked Under Fair Labor Standards Act (FLSA) Regulations – from George’s Employment Blawg
• Give Moms a Break: Anticipating Final Regulations On Break Time for Nursing Mothers – from Washington Workplace Law

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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 does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices:

• Illegal questions on employment applications, such as age, medical conditions, or workers compensation histories.
• Irregularities in pre-hiring procedures, such as unlawful background checks, medical inquiries, and medical exams.
• Overly broad policies in employee handbooks, such as anti-union no-solicitation policies or policies that ban discussions of wages and other workplace terms and conditions.
• FMLA policies that do not comply with the law’s recent regulatory changes.
• Absent technology and social media policies.
• Harassment training done less frequently than ever other year.
• Misclassified employees (non-exempt as exempt, and employees as independent contractors).
• Managers and supervisors that have not been trained in the handling, discipline, and documentation of problem employees?
• Missing EEO, DOL, and other mandatory employment law postings.
• Key employees that are not locked down with appropriate confidentiality, no-solicitation, and/or non-competition agreements.

While there may never have been snakes in Ireland, we at least know that they haven’t bothered anyone on the Emerald Isle since the time of St. Patrick. Do yourself a favor by ensuring that these employment law snakes do not bother your business again.

Telecommuting employees raise special wage and hour issues

At Overlawyered, Walter Olson asks whether telecommuting is the next wave of wage and hour litigation. He might have a point. Some estimate that as many as 50 million Americans work remotely at least part of the time. Because many of these telecommuters will be non-exempt, how employers track their hours and pay their wages has the potential to cause problems.
Pursuant to the Fair Labor Standards Act, non-exempt employees must be paid for all time worked, including overtime for hours in a week worked in excess of 40. Employers must also maintain a tracking system that accurately records this compensable work time. Because telecommuters work outside of the workplace, and often during odd hours, they present special problems for accurately tracking the amount of time spent working.

If your business is going to employ telecommuters, you should take appropriate measures—in a telecommuting policy or contract—to control the time spent working:

• Employers should clearly communicate to the employee the number of hours expected to be worked each week.
• Telecommuting employees must be required to accurately track all time spent working. Whatever the system used (pen and paper timesheets, Excel spreadsheets, timekeeping software, or electronic logins or other “punches”), employees must understand that they will only be paid for the amount of time reported.
• Because telecommuting employees are working without direct supervision, all submitted work should be reviewed by a manager or supervisor to ensure that the work performed correlates to the amount of working time reported. An employer cannot dock time or refuse to pay an employee for time spent working. However, an employer can take away an employee’s ability to telecommute (or otherwise discipline) if the employee proves to be irresponsible or abuses the telecommuting privilege.

Telecommuting may not be “the next big thing” in wage and hour litigation. It raises, however, enough unique wage and hour issues that inattentive employers who ignore these issues risk getting burned.

Time to play Medical Costs Price is Right

As many of you know, last month my son spent 19 days in the Cleveland Clinic. Now that he is home and, most importantly, healthy, I thought we’d have a little fun, while at the same time providing an editorial on the ridiculously high cost of American medical services. It’s time to play Medical Costs Price is Right.

Here are the rules:

1. Anyone who is 18 years of age or older, a legal U.S. resident, and has a valid email address is eligible to enter.
2. Current KJK employees and their immediate family members are not eligible to enter.
3. No purchase of anything (including legal services) is required to enter.
4. Your bid will be for the total, non-insurance adjusted, cost of a 19-day inpatient stay at the Cleveland Clinic, including all procedures, doctors, tests, and labs:
   • 19 days in the pediatric ward at the Cleveland Clinic Main Campus
   • 1 endoscopy (with general anesthesia)
   • 1 PICC line insertion (with general anesthesia)
   • Professional fees for gastroenterology, surgery, cardiology, and hematology
   • Emergency room fees
   • 3 x-rays
   • 1 ultrasound
   • 2 echocardiograms
   • 16 days of intravenous feedings
   • Laboratory charges for blood work
5. The closest bid that does not go over the total cost wins.
6. Bids will be accepted until March 31 at 11:59 p.m.
7. There are 3 ways to enter:
   • Post a comment with your guess to this blog post. I will not accept any anonymous comments as an entry.
   • Send a reply with your guess to @jonhyman on Twitter, using the hashtag #MedicalCostsPriceIsRight.
   • Post your guess on the wall of the Ohio Employer’s Law Blog Facebook Page, also using the hashtag #MedicalCostsPriceIsRight.
8. Each person is only allowed one entry total, no matter how the guess is submitted. I will disqualify anyone that submits more than one guess.
9. I will reject any bids that do not follow these rules.
10. The winning bid must provide a valid address within one week of my announcing of the winner. Otherwise, I reserve the right to select the next closest bid that did not go over the total cost.
11. If no bids are submitted that do not go over the total cost, I reserve the right to select the closest overall bid to the total cost.

What will the winner get?

A box of KJK-branded Pro V1s and a KJK-branded water bottle (I never promised a car).

Good luck and happy bidding.

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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.

Understanding the legal issues of the NFL labor problems

At 11:59 p.m. Friday night, the collective bargaining agreement between the NFL and the NFLPA expired, and the owners locked out its players. We’ve all heard about lockouts before, but what does all this mean? Gabriel Feldman, at the Huffington Post, provides the answer for those unaccustomed to the ins and outs of federal labor law:

A lockout is the “withholding of employment by an employer from its employees for the purpose of either resisting their demands or gaining a concession from them.” In other words, a lockout is when an employer refuses to let workers work, and therefore get paid, as a form of leverage. A lockout is prohibited if it is motivated primarily as an attempt to discourage union membership or interfere with employees’ organizational rights. Lockouts can occur before or after a bargaining impasse has been reached.

Mr. Feldman offers answers to 25 other labor law questions necessary to understand the NFL’s labor strife, including:

• What is decertification?
• What is the process for decertification?
• Why do the players have to break up their union to bring an antitrust suit?
• And, would the NFL owners be permitted to lock out Brett Favre, and only Brett Favre?

The article is mandatory reading for anyone looking to understand the basics of the complex issues behind the NFL’s ongoing and evolving labor woes.

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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 #168 (the Tiger blood … Winning … Whatever … edition)

My god, I tried to avoid Charlie Sheen this week. Yet, here’s my fourth Sheen-related post in the last four days. I guess you can’t avoid the inevitable, especially when there’s $100 million at stake. In fact, Sheen’s been a popular topic around the blawgosphere:

• Wait. Charlie Sheen Has Essential Duties? A Legal Look at His Termination Letters – from Daniel Schwartz’s Connecticut Employment Law Blog
• Charlie Sheen – from LaborRelated
• Employment Law Hits Hollywood – from the Manpower Employment Blawg
• Charlie Sheen and “Moral Turpitude” – from Koncision
• Get Ready for the Charlie Sheen Employment Litigation – from New York City Employment Lawyer
• All That’s Wrong With Social Media I Learned from Charlie Sheen – from Social Media Today
• Deadspin Publishes Charlie Sheen’s Phone Number – from The Not-So Private Parts

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

Discrimination

• Ensuring Your Wellness Programs Do Not Violate GINA – from Delaware Employment Law Blog
• Discrimination in Decisions About Near-Future and Far-Future Events – from Stephanie Thomas’s The Proactive Employer Blog
• What has the Supreme Court Done to Employer Investigations? – from Philip Miles’s Lawffice Space
• As The EEOC World Turns In 2011 – from Hunton Employment & Labor Law Perspectives™
• Supreme Court: Check before taking a supervisor’s word on discipline – from HR Cafe
• Creating A Split With the Second Circuit, The Sixth Circuit Approves Sick Leave Policies That May Reveal A Disability To A Supervisor – from Sixth Circuit Appellate Blog
• Workforce Management on sexual orientation at work – from David Yamada’s Minding the Workplace

Social Media & Workplace Technology

• OMG! Chrysler’s Twitter account drops the F-Bomb – from Eric Meyer’s The Employer Handbook Blog
• Judge Rules Facebook Won’t Be the New Frontier In Debt Collection – from Molly DiBianca’s Going Paperless
• Restrictive Social Media Policies Lead To a Better Union Case – from TLNT
• Judges use Facebook to research litigants – from Internet Cases
• Is it Really Illegal to Require an Applicant or Employee to Disclose her Password to a “Friends-Only” Facebook Page? – from Workplace Privacy Counsel
• Do You Check Facebook When Hiring? – from Nolo’s Employment Law Blog
• Why You Could Be Breaking The Law By Researching Job Candidates Online – from Business Insider
• Developing a Social Media Policy—Dos and Don’ts – from Labor & Employment Law Perspectives
• These Are The Emails Jim Tressel Sent While Being Really Serious – from Deadspin
• What the iPad 2 Means for Lawyers – from The Mac Lawyer

Labor Relations

• 10 Labor Relations Resources for HR – from The Human Race Horses
• Secretly taping the boss: Is there a problem? – from Michigan Employment Law Connection
• NLRB Explains Its Google Ads, Discontinuation of Practice – from Labor Relations Today
• National Right to Work Act Reintroduced in the Senate – from Washington DC Employment Law Update
• Is the Board Ready to Use this Union Access Case to Overturn Register Guard? – from Labor Relations Update
• The NLRB Solicits Amicus Briefs On Whether Witness NLRB invites briefs on witness statements – from LawMemo Employment Law Blog
• Union Myths – from Real Clear Politics
• Public Sector Employees Earn More than their Counterparts in the Private Sector – from LaborPains
• The Decertification Strategy for NFLPA – from Workplace Prof Blog

Wage & Hour

• Recordkeeping Under the FLSA – from Michael Haberman’s Omega HR Solutions
• Could You Be Accused of “Wage Theft”? – from Compensation Café
• The Legality Of Reducing Wage Rate To “Avoid” Overtime: The Supreme Court May Decide – from Wage & Hour - Development & Highlights
• Independent Contractor or Employee? – from HR Lawyer’s Blog

Litigation & Employee Relations

• The ins and out of tortious interference allegations after employees depart – from Work Matters
• Virginia Supreme Court Reverses Damages Award For Violation Of Nondisparagement Clause – from Laconic Law Blog
• It’s Not About the Law – from Jay Shepherd at Above the Law
• U.S. Chamber of Commerce Study Ranks States by Employment Regulations – from HR.BLR.com
• Would You Hire OJ? – from The HR Capitalist, Kris Dunn

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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.

I love it when I’m right: Charlie Sheen sues for disability discrimination

Hot off the presses, TMZ has a copy of the lawsuit Charlie Sheen filed against Chuck Lorre and Warner Brothers. And, as I discussed Tuesday, Sheen is alleging disability discrimination.

Sheen also alleges retaliation, in addition to various contractual theories. Let the fun begin!

Thanks to Eric Meyer (via twitter), for pointing me to this filing.

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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.