Settlement highlights wage and hour risks of remote work

The City of Cleveland has agreed to pay $50,000 to settle the wage and hour claim of a City Hall employee who claimed that she wasn't paid overtime while working from home during the Covid-19 pandemic.

Eve Bonvissuto, an assistant administrator in the city's public safety department's medical unit, had claimed $68,709 in overtime pay. She alleged that the city had misclassified her as exempt, and that city had no timecard or time-tracking system in place at the time for remote workers.

A supersized harassment settlement highlights the extra care employers must take when employing minors

How bad must sexual harassment be for an employer to settle a harassment case for $2 million? This bad.

AMTCR—the owner of 18 McDonald's franchises across California, Nevada, and Arizona—will pay $1,997,500 to resolve a sexual harassment lawsuit filed by the EEOC.

WIRTW #655: the “FTC did WHAT?!?!” edition

Yesterday, the FTC broke the employment law internet when it announced a Notice of Proposed Rulemaking that, if it takes effect, would ban all employment-related non-compete agreements on a national level.

The proposed rule, on which the FTC will accept comments for the next 60 days, would—

• Provide that noncompete clauses are an unfair method of competition, and, as a result, would ban employers from entering noncompete clauses with their workers, including independent contractors; and

• Require employers to rescind existing noncompete clauses with workers and actively inform their employees that the contracts are no longer in effect.

The FTC is also soliciting opinions on certain key issues, such as whether senior executives should be exempted from the rule, or subject to a rebuttable presumption rather than a ban; and whether low- and high-wage workers should be treated differently.

The agency has published a wealth of information, including the proposed rule itself and a fact sheet.

I have serious questions, specifically as to how a federal agency can enact a rule such as this, and whether a change of this magnitude must be enacted by law and not regulation. To me, this rule would go well beyond the FTC's rulemaking authority. Expect litigation to be filed in a business-friendly court, and for the Supreme Court to have the final say on this important issue. It is certainly far from a done deal that this proposed regulation will ever take effect. So keep those noncompete agreements in place, at least for now.

Here's what else I read this past week that you should read, too.

While I was away, Congress pumped life into workplace rights of pregnant employees and new moms

Two laws — the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act — took effect when President Biden signed the Consolidated Appropriations Act just before Christmas.

Just because the law may not require first aid training in your workplace doesn’t mean it’s not a good idea

There is no law or regulation that requires employers to have a person or persons trained to provide first aid in the workplace. Instead, OSHA's standards (here and here) merely require that an employer ensure prompt first aid treatment for injured employees, either by ensuring that emergency treatment services are within a reasonable proximity of the worksite, or by providing for the availability of a trained first aid provider at the worksite. 

Do you know what to do when an employee suffers a severe accident at work?

It was like nothing we've ever seen in a televised sporting event … and hope we never see again. 

During last night's Monday Night Football game, 24-year-old Bills safety Damar Hamlin suffered a cardiac arrest while making a hard but routine tackle. He received CPR on the field for 10 minutes in front of his teammates and a full stadium of fans before being transported by ambulance to a local hospital. Those 10 minutes almost certainly saved his life. He is currently sedated and listed in critical condition. We all continue to pray for his health and recovery.

Do you know what to do if one of your employees suffers a severe accident on the job?

’Twas the Employment Law Night Before Christmas (2022 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2022. 

As has been the case in years past, you can read my tale below. This year, however, you also get my holiday present of a download in booklet form, should you so choose.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone on January 3, 2022, with fresh content to kick off the new year.

Announcing the WINNER of the Worst Employer of 2022

The votes have been counted … and in the end it wasn't all that close. The WINNER of The Worst Employer of 2022 is

The Murder Enabler

Avoiding liability missteps with year-end bonuses

As employers plan for year-end bonus payments to employees, you need to learn the difference between nondiscretionary bonuses, discretionary bonuses, and special occasion bonuses (such as holiday or other gifts). Otherwise, you risk finding a Department of Labor lump of coal in your wage and hour stocking.

What's the difference between these three types of bonus payments?

Your religion isn’t a license to discriminate (but we may need to accommodate you anyway)

Pronouns confuse me. It's not that I want to misgender anyone. In fact, quite to the contrary, I try really hard to get people's pronouns correct when addressing them or speaking about them. To me, it's a simple matter of common decency. My efforts to get them correct, however, doesn't mean that they still don't confuse me. When I grew up, I learned that "they" refers to a group of people. Thus, when someone refers to someone else as "they," my brains says, "more than one." It's just difficult, but I still try to get it right.

Which brings me to the story of Vivian Geraghty, a middle school teacher. She is suing her former employer after being told either to use the preferred pronouns of her students or resign. She chose the latter, and claims in her lawsuit that the school's mandate discriminated against her Christian beliefs, which the school should have accommodated. Geraghty says the school instead should have explored potential accommodations such as moving her to another classroom or addressing students by their last names

WIRTW #654: the “gifts” edition

What's the best holiday gift you've ever given or received? With the holidays quickly approaching, this is the question Norah and I tackled on this week's episode of The Norah and Dad Show.

Find us on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, Stitcher, internet, and everywhere else you listen to podcasts. And while you're in your podcast player of choice, hit the subscribe button to ensure that you never miss a future episode.

Before I sign off for 2022, I'll be back next week with two gifts for you — the winner of The Worst Employer of 2022 (Wed.) and this year's telling of The Employment Law Night Before Christmas (Thurs.).

Here's what I read this past week that you should be reading, too.

Reasonable accommodations are for actual disabilities, not unhinged conspiracies

If I've learned one thing from my 25+ years of practicing law it's that when a court describes your arguments as a "rambling and hyperbolic tirade," your goose is cooked. 

This is the story of Meltzer v. The Trial Court of the Commonwealth, by John Bello, Administrator. 

Today is your LAST chance to vote for 𝗧𝗵𝗲 𝗪𝗼𝗿𝘀𝘁 𝗘𝗺𝗽𝗹𝗼𝘆𝗲𝗿 𝗼𝗳 𝟮𝟬𝟮𝟮

If you haven't yet cast your ballot for The Worst Employer of 2022, time is quickly running out. Polls close at the end of today. 

In case you need a refresher on the seven finalists, here they are (in alphabetical order):

B-i-t-c-h spells dismissal

We're a team, we need to work together. Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

That's what Tina Braunstein, a bartender working at The Plaza Hotel, claims one of her supervisors, Martin Mariano, told her during her 60-day review. When the hotel terminated her employment shortly thereafter and during her probationary period, she pointed to Mariano's spelling of "b-i-t-c-h" as evidence of his sexually discriminatory motive.

A tale of two employee nondisclosure agreements

"It was the best of times, it was the worst of times…." This is perhaps the most famous opening line in the history of literature, A Tale of Two Cities, by Charles Dickens. It's also an apt description of how two tech giants—Apple and Twitter—recently handled the issue of employee nondisclosure agreements.

WIRTW #653: the “playlist” edition

Last Friday, after sharing the Old 97's new holiday classic from the Guardians of the Galaxy Holiday Special, I asked LinkedIn for their favorite holiday songs. My LinkedIn community delivered in a major way. So today, I am thrilled to be able to share with you Jon Hyman's LinkedIn Crowdsourced Holiday Music Playlist Extravaganza. 

It's 42 songs spread over 2 hour, 27 minutes of eclectic rock, punk, country, pop, rap, and classical holiday standards and songs that will now be standards for your holidays. 

It's available to stream on Apple Music and Spotify. Shuffle, repeat, and jingle all the way through the holiday season.

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If you haven't already voted for The Worst Employer of 2022, what are you waiting for? Polls remain open until 14-Dec. 

VOTE HERE.

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Here's what I read and listened to this past week that you should also read and listen to.

Musings on dead dogs and terminated managers

We are no longer taking ANY EXCUSE for calling off. If you're sick, you need to come prove it to us. If your dog died, you need to bring him in and prove it to us. If it's a "family emergency," too bad. Go work somewhere else.

That was part of a written message an Olive Garden manager in Kansas recently delivered to his staff. The message that Olive Garden corporate delivered to that manager — "You're fired."

What should you do when the DOL shows up at your door?

"I'm an investigator with the Wage and Hour Division of the Department of Labor. I'm here to conduct an investigation into how your pay your employees." He then shows you his badge, and asks to see the following:

Records showing the business's annual dollar volume of transactions in in interstate commerce to establish that the DOL has jurisdiction; and

Payroll and time records for the past three years. 

With that, you're off the races in a DOL wage and hour investigation. The investigator will seek to determine if you've properly classified your employees as exempt or non-exempt, and if you've met your minimum wage and overtime obligations.

What do you do now? 

Pay attention to the industries the Department of Labor is targeting

Take a look at the following headlines, each taken from a Department of Labor news release from just the past month.

• US Department of Labor obtains court judgment ordering Pennsylvania restaurant, owner to pay 68 employees $193K in back wages, damages
• US Department of Labor finds overtime, tip violations; recovers $80K in back wages for 52 workers at 5 Carolina restaurants
• Dollars to doughnuts: Krispy Kreme to pay more than $1.1M to 516 workers after US Department of Labor finds systemic overtime violations

Bank properly terminates misbehaving employee despite FMLA leave, 6th Circuit holds

In 2017, a series of personal adversities, including probation for an incident with a gun and an ex-girlfriend, cocaine use, and a DUI arrest, ultimately culminated in a stroke for Mark Snyder, a financial director for U.S. Bank. When he returned in 2018 for his FMLA leave following his stroke, he suffered from residual physical and behavioral conditions, such as depression, agitation, and anxiety. Employees began to complain to management about his combative and confrontational behavior. After an investigation, the Bank told Snyder that further issues could result in other disciplinary actions, including termination of employment.

On June 4, 2018, Snyder had yet another confrontation with his supervisor, Johnnie Carrol, and his assistant Marcia Kleinhenz. As a result, Carroll emailed HR, explaining that Snyder's behavior "is consistent with his issues of attempting to intimidate people" and "I no longer think [Snyder's] situation is redeemable and feel I need to act." Carroll made the decision to terminate Snyder's employment that evening.

That same night, Snyder suffered a nervous breakdown and was hospitalized. The following day, he requested FMLA leave, which the Bank granted. A couple weeks later, however, Carroll and HR contacted Snyder to inform him that Bank was terminating his employment effective at the end of his FMLA leave.

The 6th Circuit had little difficulty affirming the dismissal of Snyder's FMLA claims.

• On his FMLA interference claim, the Court concluded that the June 4 confrontation was the "point of no return" for Carroll, and that he made the decision to terminated Snyder before learning of his nervous breakdown and hospitalization later that night.

• On his FMLA retaliation claim, the Court disagreed that evidence that Snyder had been a good employee before he took FMLA leave for his stroke supported a theory that the Bank schemed to push him out of the company after he took his that initial FMLA leave. To the contrary, the Court held, "Snyder cites no evidence supporting his theory that it was the FMLA leave, not the numerous complaints into his behavior, that was the reason for his termination, and "the only evidence he has supporting his theory is timing, which by itself is insufficient."

Many employers have a paralyzing fear of terminating an employee who has engaged in protected conduct, no matter the circumstances. Snyder demonstrates that this can be unfounded. The potential of a lawsuit certainly ups the ante when terminating an employee who has, for example, taken or requested FMLA leave. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they have a legitimate reason, have taken the right steps, and have the proper documentation.