And the Beat Goes On (at the NLRB)

By Glenn Rissman on May 29, 2014 Posted in Employment Litigation, Labor Law

Those of you who attended our annual labor & employment seminar on May 1 or read our blog with any regularity or just pay attention to developments in employment law, know that the National Labor Relations Board (NLRB) and its administrative law judges have been finding employers guilty of unfair labor practices in new and creative ways.

Recently, an NLRB administrative law judge said that it was fine for technicians, who conduct service calls at customers’ homes, to wear buttons and display bumper stickers that read: “WTF, Where’s The Fairness,” “FTW Fight To Win,” and “CUT the CRAP! Not My Healthcare.” The employer sent home more than 1,500 employees and asked other employees to remove the buttons.

The employer argued that the buttons were obscene and offensive to customers because WTF is short for “What the F**k” and FTW is short for “F**k the World” in texting lingo. The administrative law judge rejected this argument and found that the buttons and stickers were not profane or vulgar and would not impugn the employer’s reputation with its customers. The judge recommended to the NLRB that the employer be found to have committed unfair labor practice violations by sending the employees home and having them remove the buttons and stickers. The judge’s decision will be reviewed by the NLRB.

FYI – Not long ago, the NLRB struck down a company policy requiring employees to represent the employer in the community in a positive and professional manner. The reason: The NLRB ruled that this policy could scare employees from exercising their right to complain about their wages and terms and conditions of employment with outside representatives. Really? Employees can’t be required to act in a civilized manner even when they complain about their wages, and their work conditions? Is civility dead? The NLRB seems to be answering this question in the positive.

A Little HR Humor: Employee Tardiness

By Andrew Rodman on May 27, 2014 Posted in Employee Handbooks & Policies

Ver la versión en español aquí

It’s often said that laughter is the best medicine, so maybe a little laughter will help you transition back to work after the holiday weekend.

We recently came across the results of a survey conducted by CareerBuilder on employee tardiness. While the survey already is a few months old, we couldn’t resist the urge to pass it along.

The survey included 3,008 full-time, private sector employees and 2,201 hiring managers and HR professionals.

Takeaway Lessons from One Employer’s Loss on FMLA Retaliation Claim

By Stearns Weaver Miller on May 22, 2014 Posted in Disability & Leave, Employment Litigation, Legislation & Regulations

Ver la versión en español aquí

The City of Hot Springs, Arkansas, found itself in hot water after not rehiring employee Wayne Jackson following his leave under the Family and Medical Leave Act (FMLA). Jackson had surgery and went on leave in January 2010. After using his 9 weeks of sick leave, he took 12 weeks FMLA leave and then requested 30 days of additional leave under the City’s leave without pay policy (provided up to 60 days of leave). The City granted the request, but when Jackson was unable to return to work after 30 days, it terminated him. Jackson was released to return to work 5 weeks later and sought reemployment in his former position, which was still open. The supervisor required Jackson to apply for his former job. Even though Jackson was identified as the most qualified candidate by a three-person interview panel, the supervisor did not hire Jackson and left the job unfilled. When the position was reposted 3 months later, Jackson (who had applied again) was not interviewed and the City hired a candidate with less experience than Jackson on the welding and fabrication machines used for the position.

Jackson sued for retaliation under the FMLA. He won at trial ($112,000 in lost wages, plus liquidated damages, attorneys’ fees and costs), and the City appealed. On May 12, 2014, the federal 8th Circuit Court of Appeals upheld the jury verdict on Jackson’s FMLA claim.

"Right to Work" and "Employment at Will"

By Lisa Berg on May 21, 2014 Posted in Employment Contracts & Corporate Issues, Hiring/Termination, Labor Law

I wish I had $5 for every time I hear an employer say, “Florida is a right-to-work state, so doesn’t that mean I can terminate an employee for any reason?” Well, sort of, but you have confused the concepts of “right to work” and “at will” employment.

Meaning of “Right to Work State”

When we say that Florida is a “right to work state,” we mean that a Florida employee cannot be forced to join a union as a condition of employment. In fact, this concept is part of our Constitution. Article 1, Section 6 of the Florida Constitution provides that collective bargaining agreements negotiated between unions and employers cannot include the requirement that all employees covered by the contract must join the union or be forced to pay union dues, as a condition of employment. For those of you who love statistics, 24 U.S. states, mostly in the southern and western United States, have a Right to Work law.

Flexible Workplace: What’s in a Name?

By Stearns Weaver Miller on May 13, 2014 Posted in Employee & Management Counseling, Employee Benefits & Compensation

Many companies tout themselves as a “flexible workplace.” But what exactly does that mean? Does the company permit employees to have a regular telecommuting schedule or just work from home occasionally? Does the company offer modified start and stop times or compressed workweeks? All of these options and more can be components of a flexible workplace.

The 2014 National Study of Employers issued by the Families and Work Institute (“FWI”) and Society for Human Resource Management (“SHRM”) measured the use and popularity of 18 flexibility policies and programs by employers. These flexibility policies and programs range from employee management of breaks, shifts and overtime hours to flex time and flex place to flex careers, sabbaticals, and career breaks for family responsibilities. Of these policies and procedures measured by the study, the most frequently used options were: employee control over break times, taking time off without loss of pay for family and personal responsibilities, and occasional changes of start and stop times. Check out pages 18-24 of the study to see how your organization compares to the employers measured in the study. Continue Reading

By The Numbers: How Working Moms & Dads Compare in Salary and Job Satisfaction

By Andrew Rodman on May 9, 2014 Posted in Employee Benefits & Compensation

CareerBuilder.com has released its “Mother’s Day Survey” comparing working moms and dads in categories such as salary, title, and job satisfaction. The conclusion: “While salary data indicates that female breadwinners may have a tougher time making ends meet, working moms in general tend to be happier in their jobs.”

The study was conducted between February 10 and March 14, 2014, and included 453 working moms and 375 working dads (both with kids 18 years old and younger living at home) and 2,138 hiring managers and HR professionals across different industries.

And now for the results . . . drum roll please:

31% of working moms and 37% of working dads report that they are the sole breadwinners in their homes.
Working moms and dads who are the sole breadwinners in their homes are equally as likely to work in a management position, but more dads hold senior management positions (CEO, CFO, Senior VP, etc.).
Working dads who are the sole breadwinners are twice as likely to hold a professional or technical role (57% v. 28%), and working moms who are the sole breadwinners are more than twice as likely to work in an administrative or clerical role (52% v. 23%).
Working dads who are the sole breadwinners are four times as likely to earn 6-figures than working moms who are the sole breadwinners (24% v. 6%).
Working moms who are the sole breadwinners are nearly twice as likely to earn less than $35,000 than working dads who are the sole breadwinners (38% v. 21%).
26% of both genders say they are dissatisfied with their work/life balance.
34% of working moms who had a baby in the last 3 years didn’t take the full maternity leave offered by their employers. 22% took 1 month or less. 11% took 2 weeks or less. 10% worked while on maternity leave.
54% of working dads who welcomed a new baby in the last 3 years didn’t take the full paternity leave offered by their employers. 49% took 2 weeks or less. 21% took 5 weeks or more. 22% didn’t take any time off. You may recall, I expressed RAGE over a paternity leave issue in my April 7 blog post.
78% of working moms report they are happy in their current roles at work, compared to 73% of working dads.

Interesting numbers, indeed. For all you moms out there, put aside your work this weekend and enjoy your Mother’s Day. You deserve it.

– See more at: https://www.belaborthepoint.com/2014/05/by-the-numbers-how-working-moms-dads-compare-in-salary-and-job-satisfaction/#sthash.prcjD43F.dpuf

Pay to Quit Policies: “Go On, Take the Money and Run”

By Andrew Rodman on April 28, 2014 Posted in Employee Benefits & Compensation, Hiring/Termination

(in other words, do as Steve Miller says)

I think most would agree that loyalty is right up there among the most desirable employee traits (and if you disagree, please don’t stop reading . . . I spent a precious weekend writing this blog).

Assessing employee loyalty can be difficult. Don’t expect an employee to walk into your office and say, “hey, I really don’t care about this company, but it’s a paying job, so I guess I’ll hang around for a while.”

Look around your office. Who do you consider among your most loyal employees? Is it the guy who has been around since the company opened its doors? Is it the woman who always steps-up to accept additional work while others pretend not to have heard the initial request for help? Is it the one (and there’s probably only one) who looks forward to attending every company sponsored event? How loyal are you?

Jail Staffer’s Response to Complaints Aids & Abets Sexual Harassment

By Andrew Rodman on April 23, 2014 Posted in Discrimination & Harassment, Employment Litigation

“Think before you speak.” That’s a lesson we all learn at some point between childhood and early adolescence, right? Often, it’s a lesson instilled in us by our parents, and at times, we learn the lesson only after an embarrassing “foot in mouth” experience.

Apparently, there is at least one full-grown adult out there who recently learned this lesson the hard way – through an adverse jury verdict in a sexual harassment case.

Here’s what happened – Melissa Noyes, while serving a 6-month jail sentence for burglary, was admitted to a “women in transition” program in a minimum security, pre-release correctional facility in Massachusetts. Inmates in the program were permitted to work during the day. Noyes worked at a local Honey Dew Donut shop owned by Sameer Hussin.

Keep reading. This is not your normal cop and donut shop story.

Is the Job Market Improving? For Some Folks, Yes

By Glenn Rissman on April 21, 2014 Posted in Immigration

Two weeks ago, the H-1B visa filing season kicked off and, within five days, the U.S. Citizenship and Immigration Services received about 175,000 H-1B petitions for 65,000 available H-1B visas, plus 20,000 H-1Bs set aside for foreign nationals who hold U.S. advanced degrees. Clearly, employers are looking to hire – at least highly skilled workers who hold a bachelor’s degree or higher. The situation was the same last year – within five days, USCIS had received enough H-1B petitions to meet the annual quota.

Who are these folks? To qualify for the H-1B, they must have a bachelor’s degree or the equivalent of a bachelor’s degree. Their prospective employers had to promise to pay them at least the prevailing wage, as determined by the U.S. Department of Labor or a wage survey that meets DOL standards. Because the annual H-1B quota only applies to foreign nationals who have not held H-1B visas in the past, there is a good chance that the foreign nationals attended university in the United States on student visas. Otherwise, they are looking to move to the United States. The graduates of U.S. schools may already be working for their prospective U.S. employer on a temporary work authorization available to foreign students. Granted, some of the 175,000 H-1B hopefuls may work for overseas consulting firms that plan to send them to the U.S. as consultants for U.S. businesses, but many of those folks probably have dreams of working directly for a U.S. employer and becoming a permanent resident of the United States. All of the H-1B candidates have some specialized knowledge and should all earn at least the same pay as their similarly situated co-workers, assuming the would-be employer is on the up and up.