Happy Leap Day (or, Happy Exempt Employees Work Free Day)

Today is Leap Day, an every-fourth-year occurrence that adjusts for the astronomical anomaly that it takes the Earth 365.25 days, and not 365, to circumnavigate the sun.

What does this have to do with employment law, you might ask?

WIRTW #402 (the “starman” edition)

I realize that these Friday posts have started taking on a decided rock ‘n’ roll feel. It's a hobby, what can I say. If you prefer, you can skip lede and go right to the list of what I read this week.

Wednesday night, the Brit Awards (aka, the British Grammys) were held in London. They did an amazing tribute to David Bowie, which started with a medley played by members of his backing bands throughout the years, and ended with a stirring version of what might be his best song, Life on Mars?, sung by Lorde. I promise, it’s worth a few moments of your time.

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

Language matters when drafting restrictive covenants

Consider the following language in a non-solicitation agreement:

Neither PARTY will directly solicit for employment a current or former employee of the other PARTY who has performed any work in connection with this AGREEMENT. This provision will remain in effect during the term of the SERVICES and for one (1) year from the date of said former employee’s separation of employment from P&G or CONTRACTOR.… Further it is acknowledged that simply hiring an employee of the other PARTY is not a restricted activity in the absence of an improper solicitation as described above.

“Lady Murderface”, Yelp, and the National Labor Relations Act

By now, you’ve likely heard about the employee fired by Yelp for her very public blog post directed at her former employer’s CEO, criticizing her $24,000 annual salary. Here’s a particular biting excerpt:

I wonder what it would be like if I made $24,000 more annually. I could probably get the headlight fixed on my car. And the flat tire. And maybe even get the oil change and renewed registration — but I don’t want to dream too extravagantly. Maybe you could cut out all the coconut waters altogether? You could probably cut back on a lot of the drinks and snacks that are stocked on every single floor. I mean, I could handle losing out on pistachio nuts if I was getting paid enough to afford groceries. No one really eats the pistachios anyway — have you ever tried answering the phone fifty times an hour while eating pistachios? Those hard shells really get in the way of talking to hundreds of customers and restaurants a day.

EEOC is now an open book for employees, grants access to employer position statements

Back in the day, if an employee wanted to obtain a copy of an employer’s EEOC position statement, the employee had to go through a process under the federal Freedom of Information Act. For starters, the employee had to wait until after the EEOC issued a right to sue letter, and the EEOC could deny the request for a variety of reasons.

By back in the day, I mean last week. Because, last week, the EEOC implemented a yuge (inner Trump voice) policy change, which provides for the release of an emplyer’s position statements and non-confidential attachments to an employee, upon request, during the investigation of a charge of discrimination. Employees or their representatives must request the document. The agency will not automatically turn it over. But, employees avoid the formality of the FOIA-request process. FOIA, on the other hand, still governs employers’ requests for copies of employees’ submissions (How is that fair?)

Two reasons not to forget about the ADA’s interactive process

Two recent EEOC cases illustrate the importance of employers engaging in the ADA’s interactive process to determine if one can offer a disabled employee a reasonable accommodation.

WIRTW #401 (the “rock off” edition)

Last Saturday night Norah performed to a crowd of 1000-plus inside the Rock & Roll Hall of Fame. We weren’t allowed backstage, but heard that she was pacing a trench of nerves into the Rock Hall’s floor before her band took the stage. Was she nervous about having to perform in front of a crowd that large in the most important gig of her young life? Nope. “I don’t get nervous about that, dad.” She was just nervous that the cold she’d been fighting would cause her voice to crack. It didn’t, and she rocked the Rock Hall.

The future of rock is in very good hands, the 15-second video evidence. @hsrockoff @schoolofrockcle @rockhall #thisiscle

A video posted by Jon Hyman (@jonhyman) on Feb 14, 2016 at 6:52am PST

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