WIRTW #173 (the bird brain edition)

We know spring is in the air in the southwestern suburbs of Cleveland because the robins are out in full flight. One of these robins must have a nest somewhere outside my family room, because it keeps attacking the window (see right, for proof). It boggles my mind that something would engage in the same fruitless (and painful) endeavor for weeks on end. And yet, should it? We’ve all dealt with employees who repeat the same deficiencies. We try to rehabilitate them via performance reviews, improvement plans, and write-ups, often in vain. Are we any different than the bird?

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

Discrimination

• When an anti-harassment policy won’t defeat a bias claim... – from Eric Meyer’s The Employer Handbook Blog
• Will My Atheism Hurt My Career? – from Evil HR Lady, by Suzanne Lucas
• Equal Pay Day, The Paycheck Fairness Act, and The Easter Bunny – from Stephanie Thomas’s The Proactive Employer Blog
• STFU “We Want Boobies” (It's the Employer’s Response that Counts) – from Philip Miles’s Lawffice Space
• From the Docket: Mr. Potato Head – from Lowering the Bar
• New Jersey Court Asked to Decide What Constitutes a “Man” in Transgender Discrimination Suit – from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employers: beware accidental discrimination – from Employment Law Bits
• A rigid return-to-work policy could cause you ADA legal woes – from HR Cafe
• The New ADA Test: Does It Walk Like A Duck – from Employment Law Worldview
• Court of Appeal Says No Accommodation for Violent Threats – from What's New in Employment Law?
• A Testy Bloomberg Emerges in Discrimination Case – from The New York Times
• Seventh Circuit Affirms Denial of Certification in Equal Pay Act/Title VII Gender Case – from Employment Class Action Blog
• Kobe Shows his True Color – from Rob Schwartz’s Fairness Matters
• Wal-Mart Could Face Major Unanticipated Problems in Historic Class Action – from Richard Levick’s The Communicators Blog (at Forbes.com)

Wage & Hour

• Class action demands pay for Huffington Post bloggers – from Walter Olson’s Overlawyered
• Working through lunch may create overtime issues for employers – from The Employer Handbook Blog
• What To Do About “Service Writers” And Similar Employees? – from Wage and Hour Laws Blog
• US DOL Issues Fluctuating Work Week Regulations: Agency Sticks To What It Knows – from Wage & Hour - Development & Highlights
• DOL Seeks To Undermine Fluctuating-Workweek Plans – from Wage and Hour Laws Blog
• DOL Wage-and-Hour Division Issues New Regulations – from Employer Law Report
• Family and Medical Leave Enhancement Act is Reintroduced – from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Using Social Networking Sites to Defend Your Company in Employment Law Cases – from Daniel Schwartz’s Connecticut Employment Law Blog
• Social Media Discovery Made Easy – from Rob Radcliff’s Smooth Transitions
• Screening Job Candidates With Facebook: Part 1 and Part 2 – from Molly DiBianca’s Delaware Employment Law Blog
• Oh, the humanity! Stupidity rules in social media and employment – from Employment and Labor Insider
• NLRB Set to Issue Complaint Arising Out of Employee Twitter Comment – from Seth Borden’s Labor Relations Today
• NLRB Protecting Negative Online Comments About Employer – from employeescreenIQ Blog
• A Union Calls a Twitter Strike: Will Anyone Notice (or Care)? – from LaborUnionReport
• In the name of productivity and consistency, employers should permit employee Internet access at work – from Work Matters
• Don't Take Your Smartphone to the Bathroom from bnet

HR & Employee Relations

• Lessons from my Daughter’s Laptop – from Harvard Business Review
• A Short Checklist to Avoid a Disgruntled Former Employee Costing Your Company $200,000 – from Michigan Employment Law Advisor
• Onboarding 101, or What NOT to Do When a New Employee Starts Work – from TLNT

Labor Relations

• If I Were Starting A Union, Here's What I’d Do... – from The HR Capitalist, by Kris Dunn
• Is the Board Ready to Move on Relocation Decisions? – from Labor Relations Update
• Board: Unenforced Handbook Rules Violate NLRA Despite Disclaimer – from Labor Relations Counsel

Litigation

• Lessons for Employers in the Rejection of “The Harvard Twins’” Efforts to Reopen the Settlement with Facebook – from Iowa Employer Law Blog
• Winklevoss-Proof Your Mediated Settlement Agreements – from Settle It Now Negotiation Blog
• Settling Non-Compete Cases: Postponing Battle for Another Day? – from Trade Secrets & Non-Compete Blog
• Employee lawsuits a bigger part of modern American workplace – from Alison Grant at cleveland.com
• Court Considers Hypotheticals In Determining Overbreadth of CVS Non-Compete Agreement – from Legal Developments In Non-Competition Agreements

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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.

Coming soon to your bookshelf: HR and Social Media

It’s no coincidence that Facebook’s founder was Time’s 2010 Person of the Year. 2011 has become the breakout year for social media, as it continues increase in importance everyday. Social media not only permeates every aspect of our daily lives, but also every aspect of today’s HR.

I am pleased to announce that I will be authoring HR and Social Media: Practical and Legal Guidance, to be published by Thompson Publishing this summer. I believe it is the first such book of its kind. It will be a comprehensive resource covering the following issues in this cutting-edge area of employment law:

1. Introduction: Social Media Horror Stories
2. What is Social Media?
3. Drafting the Social Media Policy (including Harassment, Discrimination, and Retaliation)
4. Using Social Media in Hiring and Recruiting
5. Employee Privacy and Defamation
6. Confidentiality, Non-Competition Agreements, and Trade Secrets
7. Discovery of Social Media in Litigation
8. Social Media and Labor Law

I am not alone on this task. I have recruited an amazing group of my blogging colleagues to contribute chapters (in alphabetical order):

• Seth Borden (Labor Relations Today; @SHBorden): writing about social media and labor law
• Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi): writing about privacy issues
• Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer): writing about discovery and litigation
• Philip Miles (Lawffice Space; @PhilipMiles): writing about the nuts and bolts of social media
• Rob Radcliff (Smooth Transitions; @robradcliff): writing about confidentiality, non-competition agreements, and trade Secrets
• Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz): writing about hiring, recruiting, and employee engagement

I’ll be writing about social media horror stories and how to draft, implement, and enforce an effective and workable social media policy, including incorporating your social media program into your harassment and discrimination policies.

Continue to watch this space in the coming months for updates, including publication, availability, and how to add this tool to your HR library.

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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.

Has the ADA swallowed the FMLA for employee medical leaves?

It’s likely that by now you know that the recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA.

Yesterday morning, KJK’s Labor & Employment lawyers (me included) held a spirited Breakfast Briefing discussing the recent ADA amendments. One of the topics covered was the impact of the ADA on employers’ obligations under the FMLA. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

In light of this intersection between the ADA and the FMLA, employers should beware the following mistakes:

1. Those un-covered by the FMLA should not assume that they never have to provide unpaid leaves to employee.
2. Employers covered by the FMLA should not assume that ineligible employees are never eligible for unpaid leaves.
3. Employers should not assume that the leave of an FMLA-eligible employee is capped at 12 weeks.

Instead non-FMLA employee medical leaves of absence should be determined between the employer and the employee through the use of the ADA’s interactive process. Otherwise, you are putting yourself in the crosshairs of an ADA claim.

For the benefit of those who could not attend yesterday’s Breakfast Briefing, the slides are available below.

Handling Employee Medical Issues Under the ADAAA (KJK Breakfast Briefing: April 12, 2011)

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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.

Does GINA cover sexual orientation discrimination?

Michael Haberman has a very interesting post at his HR Observations blog discussing whether the Genetic Information Nondiscrimination Act covers addictions potentially grounded in genetics, such as caffeine or nicotine addiction.

Michael’s post sparked the following thought. There are few questions that provoke as much debate as what makes a person gay or straight. Just as many people will tell you that sexual orientation is genetic, as will tell you it’s environmental, as will tell you it’s a combination of the two. If you accept for the sake of argument that sexual orientation has a genetic component, then if an employer fires an employee because of his or her sexual orientation, then hasn’t the employer acted “because of genetic information with respect to the employee?” And, if that’s the case, has GINA made the Employment Non-Discrimination Act moot before it has the chance to become law?

When the first sexual-orientation-as-genetic-discrimination lawsuit is filed, it will be a very interesting (and controversial) legal issue for a judge to decide.

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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.

FMLA coverage vs. eligibility: Employer notice and recordkeeping requirements

Last week, we discussed the difference between employer coverage and employee eligibility in the calculus of determining when you must provide FMLA leave to an employee. Today, we’ll examine the two other key areas in which this distinction matters: notice and recordkeeping.

Notice

Every employer covered by the FMLA is required to post a notice explaining the FMLA’s provisions. The notice must be posted prominently where it can be easily seen by employees and applicants for employment, and must be large enough to be legible and easily read. A copy of the poster suggested by the Department of Labor is available (as a PDF) from the DOL’s website.

Covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must post this general notice even if no employees are eligible for FMLA leave (no employee was employed for at least 12 non-consecutive months, worked 1,250 hours during the 12-month period preceding the start of the requested leave; and works at a location where the employer employs 50 or more employees within a 75-mile radius).

If, however, an FMLA-covered employer has at least one FMLA-eligible employees, it must also provide this same general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring. In either case, distribution may be accomplished electronically.

Recordkeeping

The FMLA requires covered employers to maintain records that disclose the following information on all employees:

• Basic payroll and identifying employee data, including name, address, and occupation.
• Rate or basis of pay and terms of compensation.
• Daily and weekly hours worked per pay period.
• Additions to or deductions from wages.
• And total compensation paid.

Covered employers who have eligible employees must additionally maintain records that disclose the following:

• Dates FMLA leave is taken by FMLA eligible employees. Time records and leave request forms are sufficient as long as the leave in those records is designated as FMLA leave.
• If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
• Copies FMLA-leave requests made by employees (if in writing), and copies of all written FMLA designations and other notices given to employees. Copies may be maintained in employee personnel files.
• Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
• Premium payments of employee benefits.
• Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

An employer is not required to keep a record of actual hours worked for any FMLA-eligible employee who is either not covered by the FLSA or are exempt from the FLSA. For these employees, however, FMLA eligibility will be presumed for any employee who has been employed for at least 12 months. Additionally, for employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee must agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record that that employer preserves.

Employers must maintain records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, as confidential medical records in separate files/records from the usual personnel files, and in compliance with ADA confidentiality requirements.

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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 #172 (the juxtaposition edition)

These two stories came through my feed reader this week, and I thought that together they tell an interesting story:

Why Is It So Hard to Get a Low Paying Job? – from Suzanne Lucas, the Evil HR Lady

and

McDonald’s will hold hiring day April 19 to fill 50,000 jobs – from USAToday

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

Discrimination

• Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers – from Workplace Fairness
• Say “cheese” – from Michael Maslanka’s Work Matters
• Can the EEOC legally recruit claimants over the radio? – from Eric Meyer’s The Employer Handbook Blog
• Soft Porn in the Workplace can be Sexual Harassment – from Maryland Employment Law Developments
• Damning Gay Co-Workers to Hell – from Philip Miles’s Lawffice Space
• Real Men Don’t Harass Other Men — And If They Do, the Employer Pays the Damages – from Joe’s HR and Benefits Blog
• EEOC’s “Shoot-First, Aim Later” Tactics Result In $751,942 Sanction – from Workplace Class Action Litigation
• Pennsylvania Federal Court Holds There are No Mixed-Motive Retaliation Claims Under Title VII – from Wisconsin Employment & Labor Law Blog
• Supreme Court Issues Victory for Employees in Anti-retaliation Claims – from The L•E•Jer
• Supreme Court to consider scope of ministerial exemption – from Walter Olson’s Overlawyered
• Can an Employer in the Employment Application Shorten the Statute of Limitations for Anti-Discrimination Claims? – from Fitzpatrick on Employment Law
• Summary of the EEOC’s Final Regulations for the ADAAA – What Companies Should Know (Part One) – from Employment & the Law
• New ADAAA regs: the untold story!!! – from Employment and Labor Insider
• What the Final Regulations on Implementing the ADAAA Mean For Employers – from Stephanie Thomas’s The Proactive Employer Blog

Social Media

• Are Managers Gun-Shy About Disciplining Reckless Online Behavior? – from TLNT
• The Era of Corp Social Media Discrimination – from Blogging 4 Jobs
• Can Employers in an FLSA Overtime Case Issue Subpoenas Concerning an Employee’s Social Media, Banking, and Texting Activities? – from Labor & Employment Law Perspectives
• Social Media in the Workplace - The Social Media Policy – from LE Blog
• Taking A Chance With Workplace Gambling – from Social Media Employment Law Blog
• How to Avoid a Social Media Lawsuit – from INC.
• Social Media and Good Manners – from Social Media Today
• Tackling the informal nature of social media – from Raising the HR Bar
• MySpace evidence was inadmissible hearsay – from Internet Cases

Employee Relations & HR

• The Joy of a National Championship: Employment Law Lessons From the UConn Huskies – from Daniel Schwartz’s Connecticut Employment Law Blog
• I Secretly Taped My Boss And Now I Want to Sue – from Screw You Guys, I'm Going Home
• Adding to the Employer's Arsenal - Garden Leave – from Rob Radcliff’s Smooth Transitions
• Top 10 Employment Background Check Issues – from employeescreenIQ Blog
• Should Preventing Work Place Violence Yield to an Employee’s Right to Bear Arms? – from Michigan Employment Law Advisor
• Three best practices for terminating insubordinates – from HR Cafe
• Hiring in the Recovery: Time for Some Honest Answers – from Michael Haberman’s Omega HR Solutions
• Why Employees Don’t Complain – from YourHRGuy.com
• Legalities? Here's How References Work in the Real World.... – from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL “Updates” Mangle Longstanding FLSA Principles – from Wage and Hour Laws Blog
• DOL’s FLSA Rulemaking Limits Fluctuating Workweek, Tip Credit – from The Wage and Hour Litigation Blog
• New IRS Guidance for Health Care Reform: More News You Can Use – from Marc Alifanz at World of Work
• Are Managers Who Perform Non-Managerial Duties Entitled to Overtime Pay? – from Virginia Employment Law Journal
• Play Ball! An FMLA Lineup That Keeps You in the Pennant Race – from FMLA Insights
• Sick Leave Laws: Coming to a Town Near You! – from Labor Relations Institute
• FindLaw Legal Bloggers Sue for Overtime Pay – from ABA Journal Daily News

Labor Relations

• What to expect in Tom Brady vs. NFL injunction hearing – from Michael McCann at SI.com
• Governor Kasich Signs Senate Bill 5 - Referendum Battle Expected – from Employer Law Report
• Ohio Unions to Mandate More Money From Members to Fund SB5 Campaign Fight? – from LaborUnionReport.com
• Handbook Rules Alone May Overturn Decertification Election: NLRB – from Labor Relations Update

SpongeBob

• Career lessons from SpongeBob – from CareerDiva Eve Tahmincioglu

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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.

When does 50 not equal 50?

Most people think of “50” as the magic number for the FMLA. “Oh, we have 50 employees, so we now have to comply with the FMLA,” is a popular refrain among HR departments. It’s not that simple.

The FMLA has two different rules that must be met before you have to offer FMLA leave to an employee—coverage and eligibility. Coverage applies to the employer and eligibility applies to the employee. They both have the magic number 50 as a key component, but are very different in application.

Coverage. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year. Who counts as an employee for coverage purposes?

• Any employee whose name appears on the payroll will be considered employed each working day of the calendar week, and must be counted whether or not any compensation is received for the week.
• Employees on paid or unpaid leave, including FMLA leave, leaves of absence, disciplinary suspension, etc., are counted as long as the employer has a reasonable expectation that the employee will later return to active employment.
• If there is no employer/employee relationship (as when an employee is laid off, whether temporarily or permanently) that individual is not counted.
• Part-time employees are considered to be employed each working day of the calendar week, as long as they are maintained on the payroll.
• An employee who does not begin to work for an employer until after the first working day of a calendar week, or who terminates employment before the last working day of a calendar week, is not considered employed on each working day of that calendar week.

Once a private employer meets the 50 employees/20 workweeks threshold, that employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year. Thus an employer who met this threshold in 2010, drops below it later that year, and never crosses it again during 2011, would remain covered until December 31, 2011.

Eligibility. Just because the FMLA covers a particular employer, does not mean that the FMLA requires that employer to provide FMLA leave to any or its employees. An employee must still meet the FMLA’s eligibility requirements. To be eligible for FMLA leave, an employee must work for a covered employer, and:

1. Was employed by the employer for at least 12 non-consecutive months;
2. Worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. Works at a location where the employer employs 50 or more employees within a 75-mile radius.

There you have it. At least as the FMLA is concerned, 50 does not necessarily equal 50. If you a business that has 50 or more employees who are fragmented across smaller locations, each more than 75 miles from the others, then you may fall into the weird vortex of being covered by the Act, but never having any employees who are eligible for leave.

Next week, we’ll look at what this distinction means on a practical level for your business, and also explore whether in light of the recent ADA Amendments it even matters.