It’s time to update your severe-weather policy

How bad is the weather going to be in Cleveland today? It’s so cold that even the Horseshoe Casino is closed. You can’t even get hot at the tables.

In light of these historically frigid temperatures, I’m re-sharing a post I ran all the way back in 2010 on workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

1. Communication. How will your business communicate to its employees and the public whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes? Phone chains, email blasts, text messages, and even social media updates are all effective tools to communicate this essential information.
2. Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?
3. Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?
4. Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?
5. Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

Please be safe and stay warm.

WIRTW #302 (the "peace and quiet" edition)

It’s been a nice couple of weeks of relative peace and quiet (or at least as much peace and quiet as one can get in one’s house during winter break).

While we’re on the subject of peace and quiet, Santa left my 7-year-old a karaoke machine under the tree. And, no, we’re not crazy. It lets her practice for her upcoming debut, which will take place at Brother’s Lounge on January 19. If you’re in the neighborhood, please stop by at 2 pm and check her out. “What will we hear,” you ask? You’ll hear my girl playing lead guitar and singing lead vocal on this eclectic setlist:

• Pork and Beans — Weezer
• The New Kid — Old 97s (one the best songs you’ve probably never heard)
• Living After Midnight — Judas Priest

And, lest you still think I’m crazy by giving Santa the thumbs-up on the karaoke machine, here’s a sample from a recent band rehearsal (yes, I’m bragging; it’s my right as a dad).

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

Discrimination

• Plaintiff Who Was “Pantsed” Appeals Six-Figure Verdict in His Favor — from Lowering the Bar
• Within Employment Discrimination, It’s a Wage-and-Hour World — from WSJ.com: Law Blog
• Those nice people who file ADA suits — from Walter Olson’s Overlawyered
• Checking it Twice? EEOC Offers Further Discussion on Criminal Background Checks — from All in a Day’s Work

Social Media & Workplace Technology

• Incorporating Anti-Harassment into Your BYOD Policy — from HR Daily Advisor
• Offensive Tweets and Twitter Justice: The Tale of Justine Sacco for Employers — from Dan Schwartz’s Connecticut Employment Law Blog
• Sacco tweet summons social media mob — from The Evil HR Lady, Suzanne Lucas
• So your public relations executive just tweeted a racist joke that went viral... — from Eric Meyer’s The Employer Handbook Blog
• Justine Sacco’s Nightmare Before Christmas, Twitter-Version — from The Not-So Private Parts

HR & Employee Relations

• Just Because Duck Dynasty’s Phil Robertson Survived Doesn’t Mean You Have Free Speech At Work — from Donna Ballman’s Screw You Guys, I’m Going Home
• Of Ducks and Men - Duck Dynasty and the Misunderstanding of Religious Discrimination and First Amendment Right in the Workplace — from Michigan Employment Law Advisor
• The Greatest Response To A Cease And Desist Letter, Probably Written While Drunk — from Above the Law
• Suing Your Employer? Be Respectful About It — from Corporate Counsel
• Not in My Backyard: Bringing Claims Against Employees In the Corporate HQ’s Home State May Not Be as Easy As You Think — from Technology Company Counselor
• The Inbox, What Kind Of Severance Do The Lords-A-Leaping Get Edition — from Suits by Suits

Wage & Hour

• Employers Must Be Wary On Docking Exempt Employees For Snow Day Absences — from Wage & Hour - Development & Highlights
• Does your company’s year-end bonus create an FLSA overtime issue? — from Employment Law Matters
• What?! You May Have to Pay Your IT Employees Overtime?! — from The Emplawyerologist
• Huge Settlement in FLSA Bank of America Case Highlights Prudence of Getting Out Early — from Wage & Hour - Development & Highlights

Labor Relations

• Make Sure Your Labor Lawyer Knows About Johnnie’s Poultry — from Matt Austin Labor Law
• A holiday gift from the NLRB to employees — from HR Hero Line

Lessons from children’s lit: A New Year’s resolution

Among the toys and the clothes, my kids always receive books for Christmas. This year, the books included The Day the Crayons Quit. This book tells the story of a boy’s box of crayons, and the colors inside that have quit their jobs, each for a different reason. Blue no longer wants to be known just for bodies of water. Black is tired of outlining objects to be filled in by other colors. Yellow and Orange are no longer speaking to each other, each believing it is the true color of the sun. And Beige, his wrapper having been peeled off, is too embarrassed to exit the box naked. It’s a very clever book, and the sounds of both my kids cackling during it’s telling is their gift to me.

The lesson to draw from this story is important for all employers to take to heart. Employees are unique. Each has his or her own personality, needs, and wants. For this reason, an employer cannot treat all employees the same. To appease Black by re-wrapping it will not address its concern of only being used for outlining, and by using Beige to fill in the ocean will not fix its fear of being naked. Similarly, your employee-mother-of-two is going to value flexibility and work-life-balance a whole lot more than a 22-year-old employee fresh out of college.

This year resolve to learn what makes each of your employees unique. Resolve not to treat your employees as fungible commodities, but as special assets, each with his of her own talents and concerns. Recognizing each employee’s individuality will result in a more engaged workforce, which, in turn, will repay you with happier, more productive, and more loyal employees.

The 12 Days of Employment-Law Christmas

This time last year, I published a song, “The 12 Days of Employment Law Christmas.” In the last year, though, I’ve gained a lot of new readers. So, since Christmas is almost upon us, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2013. I’ll see everyone with fresh content on January 2.

---

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Merry Christmas!

WIRTW #301 (the “shattered dreams” edition)

When I was 9 years old, I ruined Christmas for a neighbor when I spilled the beans that Santa Claus wasn’t real. I still feel bad about it to this day.

Flash forward thirty years. Buzz Lightyear has played a huge role in my family. He’s my 5-year-old son’s hero. He helped get Donovan through some tough medical issues in his young life. To Donovan, Buzz is very real … or was very real until his Kindergarten teacher thought it was a good idea to share with the class that the characters at Disney World aren’t real, but just people wearing costumes.

I was stunned. Where the hell does anyone get the right to ruin my kid’s dream. If he wants to think Buzz Lightyear is as real as President Obama, who am I to say otherwise. What’s the harm in a little boy having a dream? When did kids stop having the right to be kids?

After talking to the teacher, I learned that it’s part of the “common core curriculum” to discuss the difference between real and imaginary, and some of the kids asked about Disney as an example. Could she have handled it differently? Absolutely. Should have softened the blow or deflected the question so that the kids who still want to believe in the Disney magic can do so? Yup. Regardless, I remain bummed that part of my child’s childhood has been taken away.

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

Discrimination

• Smoking: Many States Try Snuffing Out Employment Bias Against US Smokers — from Employment Intelligence
• Telling An Employee They Need to Lose Weight is NOT Discrimination — from TLNT

Social Media & Workplace Technology

• The Spy Who Loved Me? IKEA and Surveillance Laws — from Dan Schwartz’s Connecticut Employment Law Blog
• Ownership of Business-Related Social Media Accounts — from Socially Aware Blog
• Does BYOD = Bring Your Own Dangers? — from Corporate Counsel
• Employee Owned Tablets and Technology Devices: Managing the Risks and Rewards Starts with BYOD Policy — from Jason Shinn’s Michigan Employment Law Advisor
• Non-competes in the world of social media: LinkedIn notifications are not “solicitation” — from Warren & Associates Blog

HR & Employee Relations

• The Risk of Fishing for Support in an Employee Discipline Matter — from Molly DiBianca’s Delaware Employment Law Blog
• Sometimes you have to fire your “star.” Here’s why. — from Robin Shea’s Employment and Labor Insider
• Next Year’s Headache for Employers — from Jottings By An Employer’s Lawyer
• What A Christmas Party Can Reveal About Company Culture — from Compensation Café
• Crowdsourcing Illustrative Examples of “At-Will Employment” — from Workplace Prof Blog
• Can My Employer Trash Me In References? 6 things you need to know about job references — from Donna Ballman’s Screw You Guys, I’m Going Home
• Never Say Goodbye to a Great Employee — from Harvard Business Review

Wage & Hour

• Wage and Hour Compliance: Look Out, Here Comes 2014! — from Workplace Insights
• Supreme Court May Hear FLSA Case Finding Owner Personally Liable For FLSA Violations — from Overtime Lawyer Blog
• To Moot Or Not To Moot—The First FLSA Case In Texas To Grapple With The Genesis Healthcare Ruling — from The Wage and Hour Litigation Blog
• Wage & Hour Division Obtains Nearly $250 Million in Back Wages — from The Wage and Hour Litigation Blog
• Can Employees Sue Over 401(k) Losses? Supreme Court to Decide — from WSJ Law Blog
• SCOTUS on ERISA Plan Limitations Provisions — from Phil Miles’ Lawffice Space
• Two Ohio Cases Highlight That When It Comes to the FMLA, Employers Need to Set Their Radars to Detect Potential Interference Claims — from Employer Law Report

Labor Relations

• NLRB’s New Top Attorney Threatens to Overturn Employer-Friendly E-Mail Decision — from The Blue Ink
• Department of Labor’s Persuader Rule Postponed to March 2014 — from Labor Relations Today
• Employers Beware: 2014 NLRB is Unrestrained and Ready for Activism — from Employment Law Watch
• What is “Just Cause” Termination for Unionized Employees? — from Minnesota Employer

Accuracy counts in drafting job descriptions (a lesson on ADA reasonable accommodations)

Do you have written job descriptions for all of your employees? Henschel v. Clare County Road Commission (6th Cir. 12/13/13) illustrates that if you’re going to claim that a job function is essential, you should probably include it in a written job description.

Wayne Henschel worked as an excavator operator for Clare County Road Commission. He lost his left leg above the knee in a motorcycle accident. His employer refused to permit him to continue operating the excavator, claiming that the ability to haul the excavator to the job site was an essential function of the position. Among the factors that the court of appeals used to reverse the trial court’s grant of summary judgment to the employer on Henschel’s ADA reasonable accommodation claim was the fact that it had omitted the hauling function from its Operator-Excavator job description.

Whether a job function is included in a job description is only one of seven factors courts consider in determining whether that function is essential to the job:

1. The employer’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The experience of past incumbents in the job; or
7. The current work experience of incumbents in similar jobs.

In this case, the exclusion of hauling from the Operator-Excavator job description was not dispositive in the case, but it certainly didn’t help the employer’s cause.

Here are the practical takeaways for employers:

1. You should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also helps set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions.

2. Accuracy counts. It is hard to establish a job function as essential if it’s omitted from a written job description.

3. Conversely, just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors cut against you, you’ll have a hard time showing that a job function is essential no matter what your document says.

4. As jobs change, so should their written descriptions. It’s not enough to file away a job description after it’s prepared. You should periodically review it to make sure it’s current, and updated when needed because of changes to the job.

FAMILY Act would provide paid leave for employees

Tony Soprano once said, “Family: they’re the only ones you can depend on.” If Congressional Democrats get their wish, American workers will be able to depend on the FAMILY Act to provide up to 12 weeks of paid leave each year for the birth or adoption of a new child, the serious illness of an immediate family member, or a worker’s own medical condition.

Late last week, Representative Rosa DeLauro (D-CT) introduced H.R. 3712—the Family and Medical Insurance Leave Act of 2013 (aka, the FAMILY Act).

Five years ago, Ohio tried to enact its own paid sick leave law—the Healthy Families Act. At that time, I strongly opposed the OHFA, not because I’m against paid leave for employees, but because it was expensive for employers and would have labeled Ohio as unfriendly to businesses.

Here’s the key difference between the FAMILY Act, and Ohio’s old plan. The paid leave employees would receive under the FAMILY Act does not come out of ordinary payroll. It’s essentially an insurance benefit, paid by a nominal 0.2 percent payroll tax shared equally by the employer and the employee. As a result, employees would be eligible to collect paid-leave insurance benefits equal to 66 percent of their typical monthly wages, with a capped maximum of $1,000 per week for up to 12 weeks per year.

This solution seems like a win-win. The United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth. This legislation would bring us up to par with the rest of the civilized world without imposing a significant monetary penalty on employers. I expect partisan lobbying on this bill, which could prevent it from progressing. That would be a shame, since I view the FAMILY Act as a business-friendly approach to solving one of our workplaces’ nagging problems.

[Hat tip: Eric Meyer]