Chopping Down Workplace Cherry Trees

By Stearns Weaver Miller on February 26, 2016 Posted in Employee & Management Counseling

We all recall the myth of George Washington and the Cherry Tree. Washington told his father that he could not tell a lie and that he had in fact tried to chop down his father’s cherry tree. His father then praised young George and embraced him for his honesty.

A friend recently relayed to me his exasperation with his daughter’s prep school. It seems the student engaged in some teen-aged antics with a few classmates, and after admitting her involvement, was expelled from school. However, her classmates, who denied involvement, were not punished because the school could not prove their complicity. Surely the school has a right to discipline as it deems proper, but are they sending the right message to the student who cooperates in an investigation and is honest about her commission of a minor transgression?

2-4-6-8 Minimum Wage is Not So Great: NFL Cheerleaders Fight Back

By Andrew Rodman on February 16, 2016 Posted in Employee Benefits & Compensation, Wage & Hour/Employee Classification

The NFL is a multi-billion dollar bu$ine$$.

Peyton Manning won the Super Bowl with the Denver Broncos. On top of his $15 million salary, he earned a $2 million bonus. Cam Newton lost the Super Bowl, but don’t feel sorry for him; he signed a 5-year $103.8 million contract. For their Super Bowl appearances, every player on the winning Broncos received a $102,000 bonus, and every player on the losing Carolina Panthers received a $51,000 bonus. NFL Commissioner Roger Goodell may receive compensation and benefits valued in excess of $40 million per year (reports show that he earned more than $44 million in 2012).

How much does an NFL cheerleader earn? Below the minimum wage, if allegations asserted by many NFL cheerleaders are accurate.

The “Accidental” Termination?

By Ingrid Ponce on February 10, 2016 Posted in Hiring/Termination

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Rumors of more potential layoffs have been circulating for quite some time at the once internet giant, Yahoo. Despite reductions in its workforce by 14% in 2014, Yahoo’s economic woes continue. So, it was not necessarily a surprise when approximately 30 employees were laid off in late January even after statements by Yahoo’s CEO denying layoffs would occur “this week.” The surprise was that the individuals fired were allegedly placed on the termination list by mistake. Oops!

According to news reports published in Fortune.com and the Detroit Newstime, an anonymous source is claiming that the individuals terminated were never supposed to be fired. Rather, these individuals were simply placed on the wrong list and managers – who were not informed of the mistake – proceeded with the terminations. Yahoo denies the rumors and has further refused to comment on whether any future layoffs are imminent.

Regardless of whether or not the terminations were accidental, this story reminds us of the importance of handling any terminations – especially layoffs – with extreme care. More often than not, news of potential layoffs spreads like wildfire and leads to rumors or misinformation before actual decisions are even made. Here are a few tips to help ensure your layoff goes as smoothly as possible.

Same Pay for the Same Day? EEOC Wants to Take a Look

By Eric Gabrielle on February 2, 2016 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

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Once in a while, everyone might feel like Bill Murray in “Groundhog Day”, wondering whether we are living the same day at work over and over again. A persistent question, though, is whether everyone is being paid lawfully for doing so.

Last Friday, seven years to the day that President Obama signed the Lilly Ledbetter Fair Pay Act on the day of his inauguration, the Equal Employment Opportunity Commission (EEOC) announced proposed changes to its EEO-1 report. Beginning next year, employers with 100 or more employees – whether or not those employers are federal contractors – would be required to submit data on employee W-2 earnings and hours worked, broken down by race/ethnicity and gender. There are about 60,000 such employers.

The EEOC proposes the addition of the new pay and the use of the new form data to annual EEO-1 reports because it believes the new data will assist the agency in identifying possible pay discrimination and will assist employers in analyzing equal pay issues in their workplaces.

Turn a FICA Sting Into a FICA Benefit

By Sharon Quinn Dixon on January 29, 2016 Posted in Employee Benefits & Compensation

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The final chapter of an unusual FICA tax saga recently was ordered in the form of a settlement between Henkel Corporation and a group of its retirees. Although framed as a case involving retiree benefits, the case’s application is not that narrow.

Henkel sponsored a nonqualified deferred compensation (“NQDC”) plan that provided monthly benefits after retirement. The case involved the timing of the payment of FICA taxes due on the benefit. Background on that issue is in order: Employee wages usually are FICA taxable when they’re actually paid (under the “general timing rule”). Under the “special timing rule” for NQDC, an amount deferred under a NQDC plan is taxable for FICA on the later of: (a) the date on which the services creating the right to that amount are performed; or (b) the date on which the right to the deferred amount is no longer subject to a substantial risk of forfeiture, i.e., the vesting date. Under the special timing rule, the full present value of a benefit is taxable, regardless of whether the benefit is paid later. This rule actually can be beneficial to an employee because the date of vesting – which triggers the FICA tax – often occurs when the employee still is working and has regular wages that exceed the FICA wage base. Including the amount vested under the special timing rule for FICA usually results only in payment of the “hospital insurance” portion of FICA – 1.45% – and not the “social security” portion of FICA – 6.2%. Once the present value of the benefit is taxed under the special timing rule, then FICA tax never is due on the future payment of the benefit – by the employee or the employer.

Telecommuting: Perk or Problem?

By Stearns Weaver Miller on January 20, 2016 Posted in Employee Benefits & Compensation, Employee Handbooks & Policies

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As we become increasingly more mobile, telecommuting programs are among the fastest growing benefit for employees. While the term “work from home” may trigger visions of a 24-year-old with a laptop at a Starbucks, the typical telecommuter is actually a 49-year old college graduate.

Having an endless supply of caramel macchiatos during the workday may be appealing for some workers, but the idea of avoiding hours in the car for a daily commute to work is probably even more appealing.

Employees benefit from work-from-home options because it allows them more flexibility and potentially less stress, which results in higher job satisfaction. Employers benefit because workers are more productive (think less time in the car), have lower absenteeism and can save on office space and employee parking.

If telecommuting is such a great perk, why did Yahoo CEO Marissa Mayer famously ban the practice several years ago? Mayer acknowledged that telecommuting employees are more productive than non-telecommuting employees but the fact that employees are “more collaborative and innovative when they’re together” trumped when it came to Yahoo’s priorities at the time.

Happy New Year from the NLRB!

By Rene Ruiz on January 13, 2016 Posted in Employee Handbooks & Policies, Labor Law

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The New Year has begun with a knock on your door: “We are from the NLRB, and we are here to help.” Do not continue to assume that you can pretend no one is home simply because your company is non-union. The Board continues to assert itself as an active stakeholder in your operations, and 2016 may indeed leave you scratching your head.

On December 24, a Board majority concluded that a work rule contained in Whole Foods’ employment handbook prohibiting the recording of company meetings without approval violates the NLRA. The Board concluded that such a restriction could prevent employees from engaging together in workplace activities such as discussing the terms and conditions of employment and unionization. Noting that “photography and audio and video recording at the workplace are protected under certain circumstances,” the Board held that the rule amounted to a prohibition of protected, concerted activity “such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment-related matters.” Ultimately, Whole Foods was ordered to discard the rule. Without providing specific guidance, the Board implied that a less restrictive policy may be lawful. Further, the Board did not address how their ruling conflicts with states, like Florida, that make it a crime to record others without their consent.

Think about what you just read for a second. You may no longer be able to issue a blanket policy that requires your employee get approval before video recording or photographing at your worksite. That would have sounded absurd a few short years ago. Let’s see if a federal court is asked to review this decision. I predict there is more to come from the NLRB in 2016.

Background Check Forms: One-Liners That Can Cost Your Business Millions in 2016

By Stearns Weaver Miller on January 4, 2016 Posted in Hiring/Termination, Legislation & Regulations

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If you ring in the New Year with a list of new year’s resolutions, chances are, your business should, too. For those who prefer to learn from others’ mistakes before they become their own, here is one simple resolution to put at the top of your HR Team’s list for 2016.

To put the stakes into perspective, in 2015, minor technical violations of the Fair Credit Reporting Act cost individual companies millions of dollars each. This federal law, which despite its name applies to more than just “credit” checks, imposes a number of specific requirements as to both the form and substance of background check authorization forms (among other things) used for employment purposes.

Many of the violations are surprising, and even counter-intuitive: consider language such as a statement of at-will or equal opportunity employment, an acknowledgment of the employer’s privacy policies, a waiver of liability for conducting the background check, or information pertaining to the employer’s philanthropic activities, to name a few. All of these items have a place, but NOT in your background check authorization form! These are precisely the kinds of impermissible “extraneous language” (sometimes one- or two-liners) that have gotten your business counterparts into legal trouble.

Happy Holidays From Stearns Weaver Miller’s Labor & Employment Law Department!

By Robert Turk on December 28, 2015 Posted in Labor Law

Our very best wishes for a happy and healthy New Year!

Click the image below to view our Labor & Employment Law Department’s holiday message. Feel free to share!

My Top Ten Ways to Avoid Being Sued in 2016

By Lisa Berg on December 23, 2015 Posted in Discrimination & Harassment, Employee Handbooks & Policies, Employment Litigation, Legislation & Regulations, Wage & Hour/Employee Classification

I love this time of year. For some magical reason, everyone’s mood changes and smiles appear. Perhaps it’s their pending vacation or the chance to spend quality time with friends and family. So, in the spirit of the holidays, here is my gift to all our readers. Drum rolls please . . .

TEN WAYS TO AVOID GETTING SUED IN THE NEW YEAR