WIRTW #214 (the “errata” edition)

A few weeks ago I gave a presentation about legal blogging to the Ohio Women’s Bar Association Leadership Institute. During my talk the question arose of whether I’ve ever made a mistake, and, if so, how I handled it. I spoke of one incident when something I had written was incorrect. I also spoke of the importance of transparency with my readers, and my willingness to fall on my sword and admit that I was wrong (my wife will tell you this isn’t always easy for me).

Today is post number 1,365 (yikes). When you write as much as I do, something is bound to fall through the cracks every now and again. An astute reader pointed out an omission from Monday’s post on holiday pay. I wrote that because paid holidays are discretionary, there is no legal requirement that you have pay non-exempt employees for holidays off. That statement is true, but not if you pay the non-exempt employee a fixed salary pursuant to a fluctuating workweek calculation. In that instance, you must pay the employee for any holidays off, or risk the fluctuating workweek status and the overtime calculation benefits that come with it. For more on the fluctuating workweek, I recommend Robert Fitzpatrick’s excellent white paper [pdf] on the topic.

The way I figure it, I’m batting .999, MVP-like numbers no matter how you slice it.

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

Discrimination

• Has the Expanded Definition of Disability under the ADAAA Gone Too Far? — from Russell Cawyer’s Texas Employment Law Update
• With DSM-5 on the Way, Is It Time to Update Definition of “Mental Disability”? — from Dan Schwartz’s Connecticut Employment Law Blog
• Supervisor’s advice to sexually-harassed employee: “Pray…” — from Eric Meyer’s The Employer Handbook Blog
• Asking for a doctor’s note explaining a health-related absence can violate the ADA — from Warren & Associates Blog
• Employee’s inability to work overtime is not a per se disability under the ADA — from Employment Law Matters
• 12 Tips to Lower Legal Bills, Assist Lawyer in Employment Disputes — from HR Hero Line
• Lent, Catholicism, Religious Accommodations — from LaborRelated
• Title VII and Contraceptive Coverage — from The Proactive Employer Blog
• Why Genetic Discrimination Is Illegal — from Time

Social Media & Workplace Technology

• Social Media Policies: The Latest — from Manpower Employment Blawg
• Tech Co Daxko’s Social Media Policy Like TV’s Tattoo — from Fistful of Talent
• Why corporate Facebook policies are stupid — from Jay Shepherd’s Gruntled Employees
• Social Media And The Fight To Be First — from Social Media Employment Law Blog

HR & Employee Relations

• Employee Handbooks Revisited: Damned If You Do, Damned If You Don’t — from Mike Haberman’s Omega HR Solutions
• Promoting a Culture of Security: Is It the Most Important Step in Protecting Trade Secrets? — from Trade Secret Litigator Blog
• When is it okay to quit without giving notice? — from The Evil HR Lady, Suzanne Lucas

Wage & Hour

• Exploring an Employer’s Obligations to Pay Accrued Vacation and Severance under Michigan Law — from Jason Shinn’s Michigan Employment Law Advisor
• When is the Minimum Wage Not the Minimum Wage? — from Stephanie Thomas at Compensation Cafe
• Another Call Center Case Focuses On Off The Clock Working Time — from Wage & Hour - Development & Highlights
• IRS to Employers: Raise Your Hand If You’ve Misclassified Workers — from Delaware Employment Law Blog
• Summary of 2011 FMLA Cases: Valuable Resource to Employers — from Jeff Nowak’s FMLA Insights
• Stephen Colbert Provides Reminder That Family Medical Leave Is Not A Laughing Matter — from California Employment Law Report
• DOL’s “Updated” FMLA Forms List New 2015 Expiration Date — from New York Labor and Employment Law Report

Labor Relations

• By George! Here’s an angle on NLRB/social media that I bet you haven’t thought of — from Robin Shea’s Employment and Labor Insider
• Research Reveals How Labor Unions Use Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• Your Position at the Bargaining Table May Open the Door to a Broad Request for Information From the Union — from Trade Secret / Noncompete Blog

NLRB refuses to expand representation rights to non-union employees during investigatory interviews

The NLRB’s Acting General Counsel continues to try to chip away at the rights of non-unionized employers. His latest involves an attempt to expand Weingarten rights to non-unionized employees. What are Weingarten rights, you ask? They are the rights of employees to have union representation during an employer’s investigatory interview. In 2000, the Clinton-era NLRB expanded these rights to employees at non-unionized workplaces. Unsurprisingly, non-union employers lost their collective minds. Less than four years later, however, George Bush’s NLRB restored sanity by reversing that ruling and again limiting Weingarten rights to union shops only. It was only a matter of time before someone tried to swing the Weingarten pendulum again. This time, however, the NLRB didn’t take the bait.

In Praxair Distribution, Inc. (2/21/12) [pdf], the NLRB’s Acting General Counsel argued that the employer denied a non-union employee his Weingarten rights when it refused to allow him to make a phone call in connection with an investigatory interview. The NLRB clearly and unequivocally refused to expand the protections of Weingarten to non-union employees:

Under existing case law, Weingarten rights do not apply to unrepresented workers such as the employees of the Praxair operation involved here.

Now, if we can only get the Board to rein in its Acting General Counsel on the scope of appropriate workplace social media policies, we’ll really have something to celebrate.

Sitting on the dock … of the paycheck (or how to lose an employee’s exemption in 1 easy step)

The hallmark of the key exemptions under the Fair Labor Standards Act (administrative, executive, and professional) is that the exempt employee must be paid a salary of at least $455 per week. An employee is paid on a salary basis when the employee receives the same amount of pay each pay period, without any deductions. For this reason, if you take deductions from an exempt employee’s weekly pay, you place their exemption at risk. This error could prove costly. The lost exemption does not only apply to the employee against whom the deduction was taken, but also to all employees in the same job classification working for the same managers responsible for the deduction.

Yesterday, in Orton v. Johnny’s Lunch Franchise, LLC [pdf], the 6th Circuit illustrated the implications of these rules. Johnny’s Lunch employed Orton as a vice president, at an annual base salary of $125,000. The employer suffered from financial difficulties and was unable to make its payroll. Thus, from August 2008 until Johnny’s Lunch laid off the entire executive staff on December 1, 2008, Orton worked without receiving any pay. The 6th Circuit concluded that the employer’s failure to pay Orton his full salary for those four months eradicated the exemption, which, in turn, put the employer on the hook not only for Orton’s unpaid salary, but also any overtime he worked during those months.

The Court started by defining the scope of an “improper deduction” from an employees salary: “An employer who makes improper deductions from salary shall lose the exemption if the facts demonstrate that the employer did not intend to pay employees on a salary basis.” 29 C.F.R. § 541.603(a). The Court concluded that Orton’s employment agreement (which established his annual salary) was irrelevant to the issue of whether he lost his exemption: “The question is therefore not what Orton was owed under his employment agreement; rather, the question is what compensation Orton actually received.” Because Orton did not receive his full salary for the weeks in question, he lost his exemption.

All of this begs the question — what is an employer to do if it cannot afford to pay an otherwise exempt employee his or her full salary, and needs to make deductions to keep the doors open? The 6th Circuit answered this question, too:

That is not to say a company with cash flow issues is left with no recourse. Nothing in the FLSA prevents such an employer from renegotiating in good faith a new, lower salary with one of its otherwise salaried employees. The salary-basis test does not require that the predetermined amount stay constant during the course of the employment relationship. Of course, if the predetermined salary goes below [$455 per week], the employer may be unable to satisfy the salary-level test, which explicitly addresses the amount an employee must be compensated to remain exempt.

I firmly believe that employers should not pigeonhole legal issues and business issues. Sometimes (like with social media and the NLRB) business issues impact and guide legal decisions. In this case, the legal issues must guide the business decision. The the legal issues surrounding the proper payment of an employee’s salary under applicable wage and hour laws and regulations directly impact the business issues of remaining solvent. An employer cannot navigate that business decision without understanding and accounting for the legal implications of failing to pay exempt employees their salaries.

Putting the “human” back in human resources (or, how the FMLA covers life-support decisions)

On April 4, 2006, Jerry Romans Plaintiff received a call at work from his sister, who told him that his terminally ill mother was unlikely to survive the night, and decisions needed to be made about whether to keep her on life support. Prior, Romans had submitted paperwork to his employer certifying that he was a health care provider and power of attorney for his mother. He intended to go to the hospital immediately after his shift, which was scheduled to end at 11 p.m. His employer, however, told him to work a double shift to cover for an employee on the next shift who had called off. Romans told his supervisor, “I’m not staying. My mom’s dying. I’m leaving,” but the supervisor responded, “I’ll have you fired if you leave.” Romans nevertheless punched out, left the facility, and drove to the hospital.

In his subsequent lawsuit, Romans challenged that the one-day suspension he received for “leaving the facility and abandoning his shift” violated the FMLA. In Romans v. Michigan Dep’t of Human Servs. (2/16/12) [pdf], the 6th Circuit agreed. The court pointed out that the FMLA’s regulations provide that an employee who is “needed to care for” a family member is entitled to FMLA leave. That “care” can be either psychological comfort or physical care, and includes arrangements for changes in care. The 6th Circuit concluded that “a decision regarding whether an ill mother should stay on life support would logically be encompassed by ‘arrangements for changes in care.’” Applying a common sense (and, dare I say, human) interpretation of the FMLA, the court added, “To be sure, this is the kind of decision, like transfer to a nursing home, that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

To often, we, as lawyers, business owners, HR professionals, and the like, become too caught up in what the law allows us to do or forbids us from doing. When you focus too much on the legalities of a personnel decision, you risk losing focus on the humanities of the situation. This case illustrates 1) that the law, every now and again, lets employers make humane personnel decisions, and 2) bad things happen when businesses ignore the golden rule of employment relations.

8 things you need to know about holiday pay

Today is Presidents’ Day. According to a recent poll of employers conducted by SHRM, 34% of employers will be closed today. Whether you are closed on any holiday, here are 8 things you should know about holiday pay for your employees. All of these guidelines assume that your company lacks a collective bargaining agreement.

1. Do you have to pay for holidays? You are not required to pay non-exempt employees for holidays. Paid holidays is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status, at least for that week.

2. What happens if holiday falls on an employee’s regularly scheduled day off, or when the business is closed? While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on a Saturday or Sunday when the employer is not ordinarily open.

3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify? It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.

4. Can we require employees to work on holidays? Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).

5. Can we place conditions on the receipt of holiday pay? Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.

6. How do paid holidays interact with the overtime rules for non-exempt employees? If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).

7. Do you have to provide holiday pay for employees on FMLA leave? You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).

8. If an employee takes a day off as a religious accommodation, does it have to be paid? An employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance.

Here comes the disclaimer. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with counsel.

WIRTW #213 (the “Hello Cleveland!” edition)

Above the Law (c/o the Chicago Sun-Times) reports that Justice Scalia offered the following words of wisdom while speaking to a group of students at the University of Chicago School of Law:

Try to find a practice that enables you to maintain a human existence … time for your family, your church or synagogue, community … boy scouts, little league…. You should look for a place like that. I’m sure they’re still out there. Maybe you have to go to Cleveland.

Readers, introducing the next spokesperson for Positively Cleveland, United States Supreme Court Justice Antonin Scalia.

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

Discrimination

• Age Discrimination Suits Jump, But Wins Are Elusive — from NPR’s Morning Edition
• Employee is Not “Substantially Limited” Under the ADA When He is Able to Work a 40-Hour Week But No Overtime — from Employment Matters Blog
• All You Need Is … A Sexual Harassment Complaint — from Dawn Lomer at i-Sight Investigation Software Blog
• A Valentine's Day bouquet of sexual harassment cases — from Robin Shea’s Employment and Labor Insider
• Lawsuit Alleges Sexual Harassment at Breastaurant. Again. — from Tim Eavenson’s Current Employment
• Plaintiff’s Repeated “I Don't Know” in Depositions Are Claim Killers — from Russell Cawyer’s Texas Employment Law Update
• Hoops, Race and Workplace Stereotypes: Why I’m Ordering a Jeremy Lin T-Shirt Today… — from The HR Capitalist, Kris Dunn
• New Approaches to Understand Why Women Earn Less — from Stephanie Thomas’s Proactive Employer Blog

Social Media & Workplace Technology

• Are Your Employees Committing Thought Crimes? — from Frank Roche’s KnowHR Blog
• Tracking Employees By GPS: Better Have a Good Policy — from Mike Haberman’s Omega HR Solutions
• I’m unPinterested — from Tim Sackett at Fistful of Talent
• Protecting Trade Secrets and Confidential Information In The Social Media Generation — from Trading Secrets
• Teacher “Hates” Students on Facebook, Lies, Jokes About Child's Death - Reinstated! — from Phil Miles’s Lawffice Space
• What The Internet Knows About You And How To Protect Yourself — from Forbes

HR & Employee Relations

• 26 Years on the Job and Not One Sick Day — from the Wall Street Journal
• Hi boss — I’m too bored … er, sick … to come in fr— from om Today Money
• Rogue Employee of the Week – The case of the lunchtime drunk — from damnedif
• Nepotism Is Not Illegal — from Donna Ballman’s Screw You Guys, I’m Going Home
• Suck it, Cupid. You don’t work here! — from Michael VanDervort’s The Human Race Horses
• No-Hire Tobacco Policies: Why They Are a Communication and Cultural Challenge — from TLNT
• The Four Questions to Ask Before Changing to PTO — from HR Daily Advisor
• Would you get a divorce in order to telecommute? — from Evil HR Lady, Suzanne Lucas
• Working from Home More Important than Showering & Spouses — from Jessica Miller-Merrell’s Blogging4Jobs
• 10 Things Bosses Never Tell Employees — from Inc.com

Wage & Hour

• Annals of wage and hour law — from Walter Olson’s Overlawyered
• DOL Proposes Significant Changes to the Home Health Care Industry — from BLEG Blog
• Federal Judge Enjoins Alleged Retaliatory Group Termination of Warehouse Workers — from Wage and Hour Law Update
• “Linsanity” for Employers to Fail to Post Required Notices — from Dan Schwartz’s Connecticut Employment Law Blog
• New FMLA Certification Forms Available from DOL — from Smart HR Manager
• The wrong way and the right way to request FMLA certification — from Eric Meyer’s The Employer Handbook Blog

Until next week:

Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data

ZDNet’s Friending Facebook blog reports on a survey [pdf] conducted by marketing agency Russell Herder, which concluded that 21% of employees are Facebook friends with the boss. I’ve written before about some of the risks, and some of the benefits, that germinate from taking workplace relationships online into the social sphere. Those issues haven’t changed.

There’s a lot of interesting data in the report. At 9 pages, it’s definitely worth your reading time. The data that I found to be the most interesting deals with the impact of an employee’s age on the opinion of online relationships between managers and employees:

Only 28% of employees ages 18-34 believe it is inappropriate to friend their supervisor on Facebook. The number rises to nearly 50% for those ages 45 and up.

These numbers confirm what I’ve long believed—that generational differences in attitudes about the role of technology in our daily lives exponentially complicates employers’ ability to regulate the use of social media in the workplace. To effectively implement a social media policy in your organization, you will have to account for (and solve) this generational divide.