WIRTW #289 (the “now you see me” edition)

Every now and again I like to provide you an update on my upcoming speaking engagements. If you are attending one of these events, please stop and say hi. I love meeting readers.

• Think Before You Click: Strategies for Managing Social Media in the Workplace — Midwest Labor & Employment Law Conference (October 4)
• X+Y+Z = A Generational Mess for Your Workplace Policies — 2013 COSE Small Business Convention (October 24)
• New NLRB Requirements — NBI Teleconference (November 1)

As always, you can find all of my past and future speaking gigs by clicking on the Speaking Engagements tab at the top of the page.

Also, if you’re not tired of reading what I have to say, you can check out my column in this month’s issue of Law Practice Today, on managing generational issues in the workplace. Thanks to Molly DiBianca for inviting my participation.

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

Discrimination

• EEOC Sues Popeye’s for Failing to Hire Applicant with HIV — from Smart HR Manager
• GINA: Don’t Ask About Mom! — from Employment Law Lookout
• Workplace Revenge and the Equal Opportunity Jerk — from Molly DiBianca’s Delaware Employment Law Blog
• How ordering cheesesteaks can help employers with disability-accommodation requests — from Eric Meyer’s The Employer Handbook Blog
• Abercrombie & Fitch Loses Yet Another Religious Garb Case — from Wisconsin Employment & Labor Law Blog
• Why Employers Need to Respond to EEOC Subpoenas As Soon As Possible — from Minnesota Employer
• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Transgender Discrimination: Update Your Company Policies — from In House

Social Media & Workplace Technology

• A “Like” is a Like, Court Says, and is Protected Free Speech — from Dan Schwartz’s Connecticut Employment Law Blog
• A Peak at Workplace Privacy Laws: 10 Things All Employers Need to Know — from The Sociable Lawyer Blog
• Twitter’s Counsel Helped Make Financial Tweets Legal — from WSJ.com Law Blog
• Non-Solicitation Clauses and Social Media — from Augmented Legality
• Here’s how Apple’s iPhone 5s fingerprint scanner might incriminate you — from Boy Genius Report
• Employment law app - check it out! — from Robin Shea’s Employment and Labor Insider
• Smartphones now account for almost two-thirds of all mobile phones in the U.S. — from Boy Genius Report

HR & Employee Relations

• Trade Secrets - Even if You Didn’t Use or Disclose Them You Can Be Liable — from Suits by Suits
• Workplace Threats? Kiss Your Job and Your Unemployment Compensation Goodbye — from Phil Miles’s Lawffice Space
• The Proper Way To Say Goodbye To Departing Employees — from Employment Essentials
• The Witness Files: The High-Risk Harasser — from i-Sight Investigation Software Blog
• Detroit’s bankruptcy: lessons for employers — from Michigan Employment Law Connection
• Employers’ evolving use of background and credit checks — from EmployerLINC
• 73% of Workers Want More Flexibility in the Workplace — from Blogging4Jobs

Wage & Hour

• Are Unpaid Interns and Law Clerks Illegal? — from Lawyerist
• 8th Cir.: Unauthorized Aliens May Sue Under the FLSA to Recover Damages for Work Performed — from Overtime Law Blog
• Labor Secretary Details Obama Administration Wage-Hour Agenda at AFL-CIO Convention — from Wage and Hour Law Update

Expanding my reach: Announcing my monthly column in Workforce magazine.

It’s been almost a year-and-a-half since I started my relationship with Workforce.com. Most days, Workforce.com republishes my blog at The Practical Employer.

Workforce.com is the website of Workforce magazine, the world’s oldest HR publication, clocking in at 91 years old.

I was honored when, early this year, Workforce’s editorial director asked me to expand my relationship with the magazine by joining its Editorial Advisory Board. In this role, I, along with a dozen other industry leaders, content experts, and HR executives from leading companies, provide input and guidance into the editorial strategy and execution of the publication.

Part of this editorial strategy was directed at this month’s relaunch of the print magazine. One of the key cogs in this relaunch is the inclusion of monthly columnists in the magazine. To this end, I’ll be anchoring the magazine’s legal section with a monthly column.

You can read my first column—Talkin’ ‘bout Retaliation—in the September issue of Workforce.

DOL expands wage and hour laws to home care workers

Do you employ home health aides, personal care aides, or certified nursing assistants? Do you pay them less than the minimum wage, or less than time-and-a-half for any hours worked in excess of 40 in a week? If you answered “yes” to both of these questions, then you will need to make a big change to your pay practices beginning January 1, 2015.

Yesterday, the Department of Labor’s Wage and Hour Division released its final rule [pdf] extending minimum wage and overtime protections under the Fair Labor Standards Act to home care workers.

Beginning January 1, 2015, third-party employers (such as home-care staffing agencies) will no longer be entitled to claim that home care workers are exempt under the FLSA’s companionship services or live-in domestic service exemptions.

Steven Greenhouse, writing in the New York Times (hat tip: Workplace Prof Blog), did a great job summarizing this new rule:

Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services”—defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance—are limited to the individual, family or household using the services.

If an aide or companion provides “care” that exceeds 20 percent of the total hours he or she works each week, then the worker is to receive minimum wage and overtime protections.

In support of this change, the DOL has published various resources—including a Home Care web portal, a FAQ, various fact sheets, and interactive web tools—which are worth your time reading if you think you employ workers covered by this new rule.

Your company’s personnel files are not your employees’ personal property

One repeat question that I seem to receive is whether employees have a right to see their personnel files. At least in Ohio, the answer is “no”—with three key exceptions:

1. Medical Records. Ohio Revised Code 4113.23(A) provides employees access to their own medical records from physical examinations either that are required for employment or stem from a job-related injury or disease.

2. Wage & Hour Records. Ohio Revised Code 4111.14(G) provides employees (or their designated representative) access to their own wage and hour records, which must include their rate of pay, total gross wages per pay period, and hours worked each day.

3. Public Employees. Ohio Revised Code 149.43 provides employees of the state, or any county, city, village, township, or school district, access to their personnel files as public records.

Mileage may vary in your jurisdiction. According to The HR Café, 20 states require that employers provide employees periodic access to their personnel files. Thus, it is critical that you have a policy establishing rights and expectations in relation to personnel files. Something as simple as, “The Company will provide employees access to personnel files according to state law,” should suffice.

Also, unless a state law provides otherwise, if you permit access to personnel files you should make the following internal decisions about their handling:

• Will you permit access to an entire file, or only certain parts?
• Will you permit employees to photocopy parts of their files?
• Will you permit employees to designate their right to inspect (for example, to a family member, union rep, or lawyer)?
• Will you permit employees to challenge information, and if so, how?
• Will you place limits on access to confidential information (i.e., background checks or workplace investigation reports)?
• Will you limit how often an employee can access a personnel file?

How does state law interpret a “disability” after the ADAAA?

This coming January will mark the five-year anniversary of the ADA Amendments Act. The ADAAA expanded the definition of a “disability” by undoing decades of Supreme Court precedent.

One example is the distinction between a long-term ailment and a short-term or temporary disabling condition. Under the originally drafted ADA, as interpreted by the U.S. Supreme Court in Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002), to be substantially limiting and meet the definition of a “disability” an impairment “must ... be permanent or long term.” With the ADAAA, Congress rejected the Williams construction of “substantially limiting” by requiring an individualized inquiry of an impairments limitations regardless of the duration of the impairment.

One lingering question, however, is whether courts interpreting state disability statutes will fall in line with the ADAAA, or chart their own course under their own separate state laws. Ohio courts, for example, have long held that they look to federal law to interpret Ohio’s employment discrimination statutes, including that which prohibits disability discrimination. Does this rule hold in state-law disability-discrimination claims in the absence of an intent expressed by the Ohio legislature to follow the changes in the ADAAA?

In Welch v. IAC Huron, LLC (N.D. Ohio 9/10/13), we get the beginnings an answer to this important question. Welsh involved an employee with a short-term, yet disabling, shoulder injury. She sued under Ohio’s disability discrimination statute after her employer terminated her during her medical leave. The employer argued that Welch was not disabled because Ohio’s disability discrimination law follows Williams and does not cover short-term medical conditions. The court, however, disagreed, tersely stating:

The Supreme Court of Ohio repeatedly has held courts considering disability discrimination claims under [Ohio law] may look to case law and regulations interpreting the ADA for guidance. The statutory definitions of “disability” under federal and Ohio law are nearly identical, and neither definition includes the temporal limitation Williams endorsed and Congress rejected.... I conclude Ohio courts no longer would apply the Williams temporary/permanent distinction Congress rejected, and that the temporal duration of Welch’s condition would not disqualify that condition as a disability under the meaning of [Ohio’s disability discrimination statute].

In other words, at least according to this court, Ohio courts follow the ADAAA in applying and interpreting Ohio’s disability discrimination statute. While the courts have yet to flush out this issue, employers should not hold out hope that Ohio courts will apply Ohio’s disability-discrimination protections more liberally than the ADAAA.

Instead of focusing on whether an employee is “disabled” under the ADA or its Ohio counterpart, employer should focus on reasonable accommodations and engaging employees in the interactive process. The distinction between who is (or is not) disabled is a legal issue to be worked out in costly and time consuming litigation. Attempting to accommodate a disabled employee is an issue to be worked out in the workplace in collaboration with the employee. I’ll let you decide which is the path of lease resistance.

WIRTW #288 (the “words of wisdom” edition)

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

Discrimination

• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Obesity is Now a “Disease,” AMA says; What’s That Mean for HR? — from HR Gazette
• EEOC Commissioner Feldblum provides answers on obesity as a disability — from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit embraces “no jerks” rule after mediation meltdown — from Work Matters
• Can The EEOC Troll For Plaintiffs By Sending A Blast Email To Business Email Addresses? — from Workplace Class Action Litigation
• 6 Ways To Prove You’re A Victim Of Age Discrimination — from Donna Ballman’s from Screw You Guys, I’m Going Home
• Employer not liable for shift leader’s bad acts — from EmployerLINC
• Retaliation is Reality TV — from EntertainHR
• What Happens AFTER a Remand from the Appellate Court? — from Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• Do you follow terminated employees on Twitter? — from The Tim Sackett Project
• Is BYOD Right For Your Workplace? — from Washington Workplace Law
• “Your cellphone: private or not?” — from How Appealing
• More Facebook Issues: This Time, It’s the Stored Communications Act — from Trade Secret / Noncompete Blog
• Employer Failure to Preserve Employee Social-Media Evidence — from Delaware Employment Law Blog
• Can You Say Discrimination? 28% of Recruiters React Negatively to Religious Posts/Tweets — from WinWinHR

HR & Employee Relations

• What to expect when you return to work — from Evil HR Lady, Suzanne Lucas
• Well, That Stinks: Dealing With Smelly Co-workers — from Workplace Diva
• You Say Let’s Talk Severance/Your Employer Hears I Quit (Or, Employees Are From Pluto, Employers Are From Uranus) — from Workplace Fairness

Wage & Hour

• Dear Evil Skippy: My Employee Was Out Shopping When She Was Supposed To Be On Medical Leave — from Evil Skippy at Work
• Does employee use of DOL “timesheet” app mean we can’t ban cellphones? — from Business Management Daily
• “Protected Activity” No Shield for Insubordination — from Lawffice Space
• What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave — from Jeff Nowak’s FMLA Insights

Bathroom breaks do not equal breaks in pay

Yesterday’s post on OSHA’s bathroom rules generated an interesting reader question: can an employer deduct bathroom time from an employee’s pay?

The answer is no. Under the FLSA, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The Department of Labor includes “restroom breaks” as an example of these short-duration rest period for which an employer must pay its employees.

Thus, failing to pay your employees for time spent taking care of their personal business will subject you to a claim for unpaid wages.

Moreover, if the employees are exempt, pay deductions will also jeopardize their exempt status. You are required to pay exempt employees a weekly salary. Taking short-time deductions from an employee’s pay treat them like hourly employees, which, in turn, destroys the exemption for that job class.

In addition to these legal reasons to pay your employees for bathroom time, there is also a good practical reason. Treating your employees like tagged wildlife—tracking and recording their every move within the workplace—will create an work environment of distrust and apathy. Instead, you should treat all employees like professionals, and address performance-based issues as they arise. Is an employee failing to produce because he or she is spending too much time in the bathroom (or taking smoking breaks, or hanging around the coffee machine, or looking at Facebook, etc.)? Then address the performance issue. Is there a medical reason for which the employee needs a reasonable accommodation? Is the employee not busy enough and is looking for other way to fill time? Or is the employee a slacker that needs counseling, and if necessary, discipline?

Address the underlying performance issue on an employee-by-employee basis; avoid implementing company-wide edicts that will alienate the majority of your employees.