On May 14 Governor Brownback signed into law the Health Care Rights of Conscience Act.  So why report about a new health care law in an employment law blog?  Because the law gives new employment protection to persons who work at medical care facilities.

Particularly, the law says that no person (regardless of whether he or she works at a medical care facility) can be required to "perform, refer for, or participate in medical procedures or in the prescription or administration of any device or drug which result [sic] in the termination of a pregnancy or an effect which the person reasonably believes may result in the termination of a pregnancy."  The law then provides that it is unlawful for any "medical care facility" to "terminate the employment of, prevent or impair the practice or occupation of or impose any other sanction on any person because of such person's exercise of rights protected by this section."  The law becomes effective July 1, 2012.

The NLRB's new quick election rule (also dubbed the ambush election rule), which took effect at the end of April, has quickly been shelved.  Yesterday, a federal district court ruled the election rule was improperly put into effect because the NLRB lacked a quorum to take action.  For the NLRB to take action, three members are required.  In this particular instance, only two members took action on the finalization of the rule, according to the court.  This lack of a quorum invalidates the rule.  Shortly after the ruling was issued, the NLRB announced it would suspend application of the rule until further notice.

While the ruling is a victory for employer groups, it may be a short-lived victory.  The court failed to address any of the substantive arguments brought by the employer groups and simply invalidated the rule based upon the lack of a quorum.  This procedural defect can be easily remedied by the NLRB since there is now a full NLRB complement following the recess appointments.  For now, all of the election petitions filed going forward and any of the election petitions filed under the new rule will utilize the old process in effect prior to the rule change.  Stay tuned for the NLRB's next announcement on this issue.

The NLRB's announcement of the rule suspension can be found here.

You know that firing an employee by email is not best practices.  You also know you should carefully proofread your emails, including the distribution list--particularly the distribution list--before hitting send.  Here's a cautionary tale of what can happen when such errors are compounded.

Employees of the U.K. insurance company Aviva--all 1,300 of them--recently received an email from HR notifying them of their termination.  But, you guessed it, the email was really intended for only one person.  Somebody in HR hit "send to all" by mistake.

That's embarrassing.  But, even more embarrassing, the email said that the reason the employees were being terminated was because they failed to properly secure the company's confidential information.  In other words, the poor chap being fired for not keeping things confidential was fired via an email about a confidential personnel matter sent to every employee in the company.

So let's review.  Firing someone by email rather than in person.  Strike one.  Not  carefully reviewing the distribution list of a sensitive email.  Strike two.  Violating confidentiality rules while firing someone for failing to protect confidential information.  Strike three.

It took only 20 minutes for HR to recognize the error and send an apology.  The errant email was the result of a "clerical error," the company said.  No word on what happened to the employee who made the mistake.  But you can bet that person is nervous everytime he or she gets an email from HR.

It is unlawful to fire an employee in retaliation for making internal oral complaints involving rights protected by the Kansas Wage Payment Act, the Kansas Court of Appeals ruled on May 4.  Less than a year ago the Kansas Supreme Court held that is is unlawful to discharge an employee for exercising rights under the Wage Payment Act, such as by filing a claim for wages with the Kansas Department of Labor.  The new decision clarifies that this anti-retaliation rule is not limited to situations where the employee has filed a formal claim, but also covers oral complaints to company management. 

However, to be protected, the complaint, whether written or oral, must be "clear enough that the employer would understand that the employee is asserting rights protected by the statute."  The Wage Payment Act requires, among other things, that employers must pay employees all wages when due.  But in this case, the court said, the employee's complaints were "too equivocal" to put the employer on notice that he was making some claim under the Wage Payment Act.  So the court upheld the district court's ruling to dismiss the claim.

As part of the insurance-market reforms enacted by the Patient Protection and Affordable Care Act (PPACA), insurance carriers are required to spend a minimum percentage of premiums (generally 85%) on medical care and quality improvement.  If this percentage -- the "medical loss ratio" -- is not satisfied, premiums must be returned to the policyholder to the extent necessary to reach the required percentage.

A recent report by the Kaiser Family Foundation (read here) estimates that under this rule, carriers nationwide will be rebating as much as $1.3 billion in total premiums collected during 2011.  Of that, employer-sponsored plans are expected to receive approximately $900 million, and at least some rebates are expected in every state except Hawaii.

When a rebate is received with respect to an ERISA-covered plan, care must be taken to determine whether some portion of the rebate is a "plan asset".  If so, it must be treated in a manner that complies with the ERISA fiduciary obligations that apply to handling plan assets.  The Department of Labor (DOL) has provided some specific guidance on this issue (read here).  The guidance instructs that the rebate generally must be allocated between the employer and the plan participants.  The portion allocable to the participants is a plan asset and must either be returned to the participants or used exclusively for their benefit.

The facts of each arrangement must be considered, but a rebate generally will be allocated between the employer and the plan participants based on their relative contributions to the premiums ........read more

Recent IRS regulations provide guidance to employers and insurers on the calculation and payment of a new fee on health plans.  The fee is part of health care reform and will be used to fund the Patient Centered Outcomes Research Institute.  The first fee payments will be due by July 31, 2013, and relate to plan years ending on or after October 1, 2012. 

Employers are responsible for calculating and paying this fee with respect to any self-insured health plans they sponsor.  Insured plans are subject to the fee also, although the insurance carrier is responsible for calculating and paying the fee.  The fee is $1 (increasing to $2 in the second year), multiplied by the average number of lives covered under the plan during the year. 

A key issue in calculating the fee is determining the average number of lives covered by a plan during a year.  (Covered lives include not only covered employees, but also spouses, dependent children, COBRA beneficiaries, retirees, and any other persons with coverage under the plan.)  The regulations give employers four options for calculating this number.  Two of the options involve counting the actual number of covered lives under the plan as of certain dates during the plan year.  A third option uses a formula based on "snapshots" of the number of employees in the plan at various points during the plan year, and the fourth option uses a formula based on the number of participants shown on the Form 5500 for the plan.

The fee applies to all self-insured ........read more

The Kansas Department of Labor wants employers to let the agency know which sections of the Workers Compensation Annual Statistical Report they find most helpful.  The Report contains basic information about the Workers Compensation Division, workplace injury data, and claims statistics.  An interesting trend is that while the number of workplace injuries has been steadily decreasing (down 40% since 1998), the average cost per claim has been rising rapidly (over 70% increase from 2004 to 2010).  Click here to see the KDOL 2011 Workers Compensation Annual Statistical Report (1.7 MB).

The survey takes only a few minutes to complete.  Responses are due by May 11, 2012.  Click here to take the survey.

The effort in the Senate to prevent the implementation of the NLRB's new set of election rules failed yesterday.  By all appearances, the new election rules will take effect on April 30th.  These rules are designed to fast-track union representation elections.  This change should increase the election victory rate for unions resulting in more employee groups becoming union represented. 

What does all this really mean for employers?  The simple message is that employers that wish to remain union-free should consider educating their workforce on the topic before the employer becomes aware of a union's presence.  The time-line currently in place is already short.  The new rule will slice several weeks off of the existing schedule.  The practical effect of the change is that once a representation petition is filed, it will be almost too late for an employer to effectively respond with educational information to fully inform employees.  As they say, an ounce of prevention is worth a pound of cure.  This will be more true than ever once the fast-track election rules take effect next week. 

In a recent press release the U.S. Department of Labor announced child labor penalties against a chain retailer for allowing employees under the age of 18 to perform certain tasks the DOL has determined to be hazardous.  You might wonder what terrible tasks the employer required the minor employees to perform.  Was it handling hazardous chemicals?  Or maybe operating dangerous cutting equipment?  Not a chance.  It was nothing along those lines. 

Like many companies, this retailer had a trash and box compactor in the back of the store, and the minor employees were operating it.  Unfortunately, the DOL's Hazardous Occupation Order No. 12 generally prohibits employees under the age of 18 from operating, loading, or unloading paper balers or trash compactors.  These simple violations led to the assessment of a $12,000 civil penalty against the employer.

The lesson to be learned from this case is to be careful in how you utilize your youth employees.  DOL has issued specific regulations regarding the types of job duties employers under the age of 18, and under the age of 16, may perform.  As you can tell from this particular instance, those restrictions are not always intuitive, and what may seem like a routine function to you might be a hazardous task to the DOL. 

Today is Administrative Professionals Day (formerly and sometimes still known as Secretaries Day).  In honor of this day, we refer you to "The Best of Bad Bosses" feature by HR Strange But True.  Highlights (or is it "lowlights"?) include:

• The Company President who took the office staff to lunch for Administrative Professionals Day.  Well, not the entire staff--just the blonde women.  The receptionist and his own executive assistant, both of whom had dark hair, did not get invited.
• The boss who told an employee, after she returned to work following breast cancer surgery:  "Well, I don't have to worry about you going anywhere else. No one else will hire you now that you've had cancer.  I can pretty much do what I want now."
• The boss who hit an employee with an aluminum baseball bat over a dispute about the employee's performance.  And you thought your boss was tough!

Read the full stories, and more tales of bad bosses, here. 

The NLRB's new election rule (click here to read the 12/05/2011 blog post discussing this rule), which essentially accelerates the election process, is set to take effect on April 30th.  This new rule dramatically favors unions, as it provides very little time for employers to inform employees once a representation petition is filed.  Some have labeled the rule the "ambush election rule" because it significantly shortens the current election process, which is already fairly short.  

The election rule is now under attack in the U.S. Senate by way of a proposed resolution pursuant to the Congressional Review Act.  The resolution of disapproval should be debated in the Senate this week and if approved by Congress would result in the implementation of the NLRB's election rule being blocked.  Stay tuned for further developments on this issue.

To read the press release click here.

Late yesterday the Circuit Court of Appeals for the District of Columbia (the federal appellate court over DC) issued an emergency injunction blocking the National Labor Relations Board from implementing its poster requirement, which was scheduled to take effect on April 30, 2012.  These regulations would require private-sector employers to post an official Board-drafted notice informing employees of their rights under the National Labor Relations Act, including the right to join or support a union.  Several business organizations had joined together last fall to file a lawsuit to block the poster requirement on the basis that the Board had exceeded its statutory authority in issuing the underlying regulations.  Last month the federal district judge in the District of Columbia had struck down several aspects of the Board's regulations, but upheld the poster requirement.  Both sides appealed the judge's decision and those appeals led to the DC Circuit's ruling.

While the injunction does not necessarily impact the entire country, the NLRB has decided not to enforce the rule while the issue is resolved.  The NLRB's temporary suspension of the rule's implementation gives employers a temporary reprieve from the posting requirement.

Of note, the DC Circuit did not address the substance of the NLRB's regulations; rather, it simply ordered the injunction to keep the notice from going into effect while the appeal is being addressed.  The timing of when the DC Circuit will further address the substance of the NLRB's regulations is not yet known. 

The current administration's pro-labor stance has not given private employers much to smile about over the last couple of years.  Last week, however, a federal judge in South Carolina provided employers with some much needed good news on this front.  In a lawsuit brought by the U.S. and South Carolina Chambers of Commerce against the National Labor Relations Board (NLRB), the judge ruled that the NLRB lacked the statutory authority to issue the regulations that require employers to post a notice informing their employees of their rights under the National Labor Relations Act.  This ruling comes on the  heels of a federal judge in the District of Columbia determining last month in a separate lawsuit that the NLRB had the authority to issue the notice requirement. 

In the South Carolina case, the court, analyzing the language of the National Labor Relations Act, determined that while the statute gives the Board the authority to issue rules to carry out the provisions of the Act, the Board's actions in requiring the posting of a notice went too far.  The court was mindful of the fact that the statute does not contain an express notice requirement, which is contrary to a number of other prominent employment laws, such as the Fair Labor Standards Act and anti-discrimination laws such as Title VII and the ADA.  The lack of any express statutory authority was noteworthy given the law's 75-year history and the fact that Congress has amended the act on a number of occasions.  The court found ........read more

Having a simple, easy-to-pronounce name is more likely to win you friends and favor in the workplace, according to a new study published in the Journal of Experimental Social Psychology.  Researchers, conducting studies using a range of names from Anglo, Asian, and European backgrounds, found that people with easy-to-pronounce names are evaluated more positively and more likely to receive job promotions.  

"Research findings revealed that the effect is not due merely to the length of a name or how foreign-sounding or unusual it is, but rather how easy it is to pronounce," according to lead author, Simon Laham from the University of Melbourne in Australia.  Subtle biases that we are not aware of affect our decisions and choices, he says.  This could have important implications for the management of bias and discrimination in the workplace and society.  "It's important to appreciate the subtle biases that shape our choices and judgments about others. Such an appreciation may help us de-bias our thinking, leading to fairer, more objective treatment of others," Laham says. 

About a month from now high school seniors will be donning funny looking caps and gowns and parading across stages to receive their hard-earned diplomas.  But employers who require a high school diploma or GED as a condition of employment need to make sure this requirement is job-related and consistent with business necessity, and that it doesn't screen out individuals who cannot obtain a diploma because of a learning disability.         

The Equal Employment Opportunity Commission recently published new guidance on whether an employer's requirement that a job applicant have a high school diploma may violate the Americans with Disabilities Act.  The guidance is in response to an informal discussion letter issued by the EEOC last November that created significant commentary and conjecture. 

The guidance explains that requiring a high school diploma for a position is not illegal.  Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, according to the EEOC, if an applicant tells an employer she cannot meet this requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.

The guidance clarifies that the ADA only protects someone whose disability makes it impossible for him to get a diploma. It would not protect someone who simply decided not to get a high school diploma.  The employer can require ........read more

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to ........read more

On March 29 The U.S. Equal Employment Opportunity Commission (EEOC) issued the "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).  The final rule clarifies the EEOC's position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. 

The rule responds to two Supreme Court decisions in which the Court criticized one part of the EEOC's existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.  However, it disagreed with the part of the regulations that said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”  The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

In issuing the new rule, the EEOC tried to make its regulations consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.  For a more-detailed ........read more

In yet another example of White House politics driving the employment ship, the U.S. Department of Labor (DOL) recently rescinded regulations that had been proposed to clarify the fluctuating hours method of calculating overtime.  This method, also known as fixed-pay-for-fluctuating-hours, is a lawful method under the Fair Labor Standards Act of paying non-exempt employees whose hours fluctuate from week-to-week a fixed salary that is meant to be the employee's straight-time wages for all their working time.  When the employee works overtime (i.e. more than 40 hours in a week), the overtime premium is calculated at half-time rates rather than the traditional time-and-a-half.  The regulations proposed under the Bush Administration were intended to clarify that additional forms of compensation, such as production bonuses, commissions, on-call pay, or shift premiums, were permissible under the fluctuating hours method as long as they were included in the employee's regular rate for purposes of overtime calculations. 

Desiring to make the fluctuating hours payment method less attractive for employers, the current administration rescinded the proposed language regarding bonuses and other forms of additional compensation.  The DOL explained its decision by stating that providing an employee with additional forms of compensation was inconsistent with paying the employee a "fixed salary."  The DOL went on to state that, except for overtime premiums, providing any other forms of additional compensation would invalidate the fluctuating hours payment method.  Presumably in that case the DOL would take the position that the employee would be entitled to overtime calculated at the full time-and-a-half.

Although not addressed by the DOL's ........read more

Here’s a unique footnote in employment law and superhero history.  In 1972 the U.S. Department of Labor developed a public service announcement to promote the Equal Pay Act featuring characters from the campy Batman TV show.  In the PSA Batman and Robin are tied up next to a ticking bomb in an abandoned warehouse.  Batgirl swoops in just in the nick of time.  But she leaves the Dynamic Duo hanging, questioning Batman why she’s paid less than Robin.  “Holy discontent!” exclaims Robin.  To which Batgirl retorts, “Same job, same employer, means equal pay for men and women.”  Is it curtains for the Caped Crusaders?  Will Batgirl get equal pay?  Click here to watch the video.  

Perspective is good.  To make good decisions, it’s helpful to see things not only from your vantage point, but from the vantage point of others.  As the old saying goes, “Don't judge a man until you've walked a mile in his shoes.” 

Of course your organization’s lawyer drives you crazy.  But does your organization also do things that make your lawyer crazy?

• Employment Law Update;
• The New Activist National Labor Relations Board—Believe Us, You Care;
• Sexual Harassment in the Technology Era;
• The Latest FMLA Cases;
• An FLSA Audit Is Coming—Be Prepared before DOL Arrives;
• Things HR Can Do Now to Take Advantage of the New Kansas Workers Comp Law;
• Authorized or Not?  Current Trends Related to Work Authorization and Immigration Issues; and
• Genetic Information Non-Discrimination Act (GINA).

Choose your own schedule based on breakout session options.  This entertaining and economical seminar provides the latest information you need to help your ........read more

Who would've thought March madness would provide an opportunity to comment on immigration law and harassment issues? 

During yesterday's first round tournament game, a Kansas State player was fouled and went to the free throw line to shoot two free throws.  Like any good crowd, the Southern Mississippi fans tried to get in his head to cause him to miss the free throw.  The problem is they whipped out the "Where's your green card?  Where's your green card?" chant because the Kansas State player is Hispanic.  The player is actually from Puerto Rico and grew up in Miami.  And he is a U.S. citizen, just as surely as the misguided Southern Miss students who originated the chant. 

While the idea on the basketball court is to create a hostile environment for your opponents, it isn't likely that a "Where's your green card?" chant is something Southern Miss administrators wanted to hear.  This type of behavior is never acceptable, whether at a sporting event or in the workplace.  These types of comments are becoming more commonplace, particularly as the various state legislatures debate and/or enact legislation relating to immigration and worker documentation.  And it's comments like these that employers dread.  Imagine if employees in your workplace were treating Hispanic co-workers in this manner.  In the case of the basketball game, Southern Miss will take some disciplinary actions against its students and that is likely to be the end of it.  In the workplace, those kinds of comments may lead to an EEOC charge and maybe even a slam dunk.  

For those who want to see the video click here.  You'll have to turn up ........read more

In a recent decision (Gray v. Powers, No. 10-208080 (5th Cir. 2/29/2012)), a federal appellate court determined that an individual's status as an owner of business was not enough by itself to justify individual liability for the business' FLSA violations.  In that case, the plaintiff raised class-wide overtime claims against his former employer, which had gone out of business.  Finding the business' well dry, the plaintiff sought individual liability against one of the members of the limited liability company (LLC) that had run the business.  The court found that the member did not exercise actual operational control over the business.  He did not exercise authority with respect to the hiring or firing of the plaintiff or other employees.  Likewise, he did not exercise control over the employee's work schedules, wages, or other terms and conditions of employment.  Finally, the court found he was not involved in the maintenance of the company's employee records. 

The court's decision is not remarkable by itself, but it highlights the potential for individual liability that exists under the FLSA.  Like corporate shareholders, LLC members are generally protected from personal liability for the actions of the company.  However, when the owner, or any manager for that matter, has an active hand in the management of the business, especially with respect to the wages or working conditions of subordinate employees, individual liability becomes a potential risk.

The H-1B visa filing period for fiscal year 2013, which begins on October 1, 2012, will open on April 2, 2012.  Employers may begin requesting H-1B visas on behalf of qualified foreign individuals who intend to start work on October 1, 2012.  In the last few years, the H-1B quota for the fiscal year has remained unused through the late fall or early winter.  Historically, the H-1B quota for the fiscal year was exhausted by the applications filed in the early April filing window.  While the usage rate for FY2013 H-1B visas is hard to predict, employers would be wise to consider filing any needed H-1B applications in April to avoid ending up with no ability to access an H-1B visa later in the year due to the annual quota being hit. 

A few weeks ago we told you about Kansas House Bill 2627, which would amend the Kansas Wage Payment Act to expand the scope of authorized pay deductions.  Since then, the bill, with a few changes along the way, was passed by the House on a vote of 93-31.  It was introduced in the Senate, and last week was referred to the Senate Committee on Commerce.  We'll keep you informed as we continue to track the bill's progress. 

Three million veterans have returned from military service over the past decade, and another one million are expected to return to civilian life during the next five years because of the anticipated drawdown of operations in the Middle East.  In recent years, the percentage of veterans who report having service-connected disabilities has risen.  About twenty-five percent of recent veterans report having a service-connected disability, as compared to about thirteen percent of all veterans, according to the EEOC.                                                 

The NLRB posting rule has been the subject of much delay and scrutiny.  The rule is currently set to go into effect on April 30, 2012, following a number of delays in its implementation as previously discussed in our blog.  For a summary of the requirement as issued by the NLRB click here.   At the end of last week, a federal court (in one of the pending cases challenging the validity of the rule) issued a decision upholding the core posting element of the rule and invalidating other portions of the rule extending the statute of limitations for filing unfair labor practice charges and establishing the failure to post the notice as an unfair labor practice.  The short version of the judge's decision is that the NLRB's establishment of the posting requirement is within the authority of the NLRB and is permissible.  Stay tuned, however, as there is another federal court challenge pending in another jurisdiction, and that court could reach a different conclusion on the issue.  In the meantime, employers should be prepared to comply with the posting requirement as the April 30th deadline approaches. 

As most of you have probably followed, the ADA was amended a couple of years ago to expand the definintion of disability.  The EEOC issued regulations in the spring of 2011 designed to add some additional clarity regarding the ADA Amendments Act.  One of the items we flagged at that time was the EEOC's anticipated hostility towards employer policy materials containing an automatic termination provision for employees absent a specific length of time. 

As predicted, the EEOC has successfully brought actions against employers with policies of this nature.  Employers still utilizing a policy with automatic termination provisions would be wise to review and amend those policy materials in light of the EEOC's stance.  The key for employers is to make sure the policy provides for an interactive accommodation process to occur rather than a leave of absence length triggering an automatic outcome.  As long as an employer evaluates each employee situation on a case-by-case basis, the risk of an ADA violation drops dramatically (assuming the employer properly accounts for the ADA requirements).  Employers with an automatic termination trigger can expect that the EEOC is likely to deem any termination based on the trigger as a violation of the ADA.

M. Patricia Smith, the head litigation lawyer for the U.S. Department of Labor, spoke at the American Bar Association Labor & Employment Law Section's Federal Labor Standards Legislation Committee annual meeting last week.  Smith mentioned some interesting points about DOL's wage-and-hour enforcement agenda that we wanted to pass along. 

Over the last year, the issue of social media usage by employees and responses from employers has been fairly heavily discussed and debated.  This discussion has primarily been related to discipline/termination matters.  For one, the NLRB has put employer social media policies under the microscope and issued clarifying information about a variety of policy examples.  Employers can expect those policy language debates and its impact on employee discipline to continue throughout 2012.  

The next breaking wave of social media disputes may be focusing on ownership of social media accounts created and utilized by employees in the course of conducting an employer's business.  Imagine your business setting up a Twitter account designed to communicate with your customer base and building a significant following over a period of a year or two.  What happens when the employee responsible for the company's social media presence resigns and takes the account with her by simply changing the login and password information?  One can imagine the employer might file suit to recover the account and the significant base of followers.  How these disputes play out remains to be seen.  There are currently cases pending in the Northern District of California (Twitter) and the Eastern District of Pennsylvania (LinkedIn) involving disputes of this nature.   

Employers should stay tuned as those cases work toward resolution in 2012 or 2013.  In the meantime, employers should consider adding language to their social media policies or employment contracts to reflect the employer as the owner of the social media accounts created on the employer's behalf by its employees.  This will put employers in the best position ........read more

Foulston Siefkin LLP will host its seventeenth annual full-day employment law seminar on May 3 in Overland Park, and May 8 in Wichita. This entertaining and economical seminar provides the latest information you need to help your organization comply with the ever-changing employment and labor law landscape. 

So first off, there is almost no connection between the love we might express on Valentine's Day and I-9 forms.  If any of you say I-9 form and love in the same breath, your sanity will surely be questioned; however, if we talk about throwing out old I-9 forms, we might be able to insert I-9 and love into the same sentence.  If you are not destroying I-9 forms for former employees, it is time to consider your I-9 retention practices.

As all of you know, employers are required to complete and maintain I-9 forms and supporting documents for each employee.  In conducting audits and visiting with HR teams, the issue of maintaining (retaining I-9 forms) is an area where employers tend to err.  It seems that a lot of employers maintain I-9 forms forever when there is no requirement to do so.  The I-9 retention rules are fairly straight forward.  An employer is required to retain an I-9 form for any current employee.  Employers are also required to maintain I-9 forms for a minimum of three years.  Once the employee terminates employment with the company, the I-9 must be retained for at least one year following termination.  While a little convoluted, the rule is fairly simple.  The I-9 must be retained for at least three years and for at least one year following an employee's termination of employment.  Here are a couple of examples to help clarify:

Employee 1 starts work on August 1, 2007 and remains employed today.  Since the employee is a current employee we continue to retain the ........read more

The Kansas Wage Payment Act controls many aspects of wage payment and deductions.  The KWPA's frequently unknown and often-misunderstood restrictions on wage deductions can cause problems for employers.  

Kansas House Bill 2627, introduced on February 3, would amend the KWPA to clarify the law and expand the scope of authorized pay deductions. The proposed changes to the KWPA would expressly allow Kansas employers to withhold, deduct, or divert any portion of an employee's wages for the following purposes:

(1)  To allow the employee to repay a loan or advance which the employer made to the employee during the course of and within the scope of employment.  The KWPA presently is silent about such deductions, although Kansas Department of Labor regulations do say that employers can make deductions for cash advances the employee requested in writing. 

(2)  To allow for recovery of payroll overpayment.  Here again, the KWPA today does not address such deductions, but KDOL regulations permit deductions to correct wage overpayment that resulted from the employer's error, although the deduction rate cannot exceed the overpayment rate unless the employee signs an authorization.

(3)  To compensate the employer for the value of the employer's merchandise or uniforms purchased by the employee. The regulations today say that even with the employee's consent, an employer cannot make deductions for uniforms that are not necessary to the job and that are customarily supplied by the employer.  

(4)  To compensate the employer for breakage, loss or return of merchandise, inventory shortage, or cash shortage caused by the employee where the employee was the sole party responsible for the case or items damaged or ........read more

Valentine's Day is just around the corner.  It's estimated that 190 million Valentine cards and 15 million e-Valentines were sent in the U.S. last year. But when a love-sick employee sends a written expression of love to an unrequitting co-worker, trouble often follows. Here are a few real-world examples from published court cases.    

• An employee sued after her co-worker harassed her, including sending her a card that said, “On Valentine’s Day, remember – candy is dandy . . . but sex won’t rot your teeth!  So what do you say!”

• A male employee made a harassment claim over his female supervisor’s conduct, which included an incident on February 12 where the supervisor held a bottle of pink lotion, saying she was “going to have a great time on Valentine’s Day,” and asking the employee if he would like to try some of the lotion.

• An employee claimed harassment regarding her supervisor’s conduct, which included giving her a Valentine’s Day card with a $50 bill in it. 

• An employee sued after her supervisor posted a Valentine’s Day message to her in the town newspaper, which stated in part, “Dear Sgt., Spring is right around the corner, just like me. Look outside, see a Robin by the tree. Love Azalea.” 

• A female employee claimed a male co-worker harassed her, starting when he gave her a Valentine’s Day card. The male co-worker told the female employee that he stayed up until 2:00 a.m. trying to decide what to write on the valentine.

• A secretary brought a sexual harassment claim against her employer for her supervisor’s conduct, ........read more

In the fall of 2011, the U.S. Department of Labor issued a set of proposed regulatory changes impacting the use of child labor in agricultural settings.  (See our blog post of 10/21/2011 for more information.)  Part of those proposed regulations focused on the parental exemption to the child labor rules.  After receiving comments from agricutural industry representatives and getting some Congressional attention, the DOL now intends to re-propose the regulation as it relates to the parental exemption.  One can expect the DOL to take into account the comments received in this upcoming revised proposal.  For further reading click here.

The Department of Labor (DOL) issued an unoffical set of proposed changes to the FMLA regulations earlier this week.  The proposed changes primarily focus on the military family leave provisions.  The proposed changes will eventually be published in the Federal Register and will seek comments from interested parties.  The DOL's stated goal is to add clarity for employers with respect to the military leave provisions of the FMLA.  The DOL describes the highlights of the proposal as follows:

• Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; 
• Creation of a flexible definition for the serious injury or illness of a veteran;
• Addition of a provision to cover serious injuries or illnesses that are an aggravation of a pre-existing condition if it occurs during military service;
• Inclusion of regular armed forces members under the military leave provisions (as compared to National Guard and Reserve);
• Creation of a foreign deployment requirement for qualifying exigency leave.

Stay tuned as the discussion of these proposed revisions to the regulation will gain steam in the coming months.  Once the DOL finalizes these proposed changes, employers will need to update their FMLA policies.  For access to the DOL page containing links to the information the DOL intends to publish in the federal register click here.

People are five times more likely to do the right thing when given time to think it over than they are when they have to make an instant decision.  The research behind this statistic, conducted by a professor at the Kellogg School of Management at Northwestern University, is described in an article in the February/March issue of the Academy of Management Journal.  The study concludes that organizations should "consciously design moral decision-making processes, integrating them into training and enforcing them institutionally via policies, rewards, and sanctions. Policies mandating a 'cooling-off period' or multiple levels of approval for consequential decisions, for example, might provide institutional analogs for contemplation, and ethics hotlines might act as institutional conversations. Opportunities for instituting and improving these kinds of procedures abound."  In short, think before you leap.

So what does this have to do with employment law?  The obvious application is retaliation. 

After staying steady for nearly a decade, the number of retaliation claims filed with the EEOC has shot up every year since 2007.  What happened in 2007?  The U.S. Supreme Court decided Burlington Northern v. White.  In that case the Court expanded the scope of actionable retaliation claims to include actions viewed by a reasonable person in the employee's position as materially adverse, even if they did not result in an ultimate employment action like discharge or demotion.  

The steady rise in the number of retaliation claims filed with the EEOC is depicted on the chart below:

Now back to the Northwestern study.  When an employee makes a bogus accusation of discrimination or asserts workplace rights in an opportunistic way, the supervisor's immediate instinct may be to strike back.  But such a knee-jerk response can provide fodder for a retaliation claim.  That's why your organization needs a good anti-retaliation policy.  And all supervisors need instruction about the policy and training on how to react when an employee alleges discrimination, asserts rights under wage-and-hour or wage-payment laws, or makes a workers compensation claim.  That training should include guidance to calmly listen to the employee's concerns and then take them to upper management and/or human resources.  Supervisors need to know that bad things happen when they retort in hot blood or make snap decisions without a cooling off period and consultation with upper management and human resources.

For more about retaliation claims and how to avoid them, see Confucius Says: He Who Retaliates Digs His Own Grave.

For those employers subject to the requirement, the deadline for posting the OSHA Form 300A is coming right up.  The OSHA Form 300A is the summary of job-related injuries and illnesses for the prior year.  The summary is required to be posted from February 1st through April 30th and must be located in the location where all other employment-related notices are posted by the employer.  For further information on OSHA recordkeeping requirements click here.

Are your employees happy?  In the not too distant past that was a question most HR professionals cared a lot about.  Remember when employee retention was a big concern?  In today's employment environment, this topic seems to have fallen off the radar screen.  With unemployment still hovering at a level most would consider too high, the happiness of the workforce seems to be a forgotten concept.  The conventional wisdom is that employees aren't likely to job hop when jobs seem a bit hard to find.  While all this might be true, employers would be wise to keep employee morale in mind.  As we are all painfully aware, the economy runs in cycles.  Who knows how far away the next cycle of low unemployment and tight labor markets might be.  In addition to employee retention, employee morale is tied to employee productivity.  Keeping employees satisfied and working hard is the key to any employer's success.

It seems that employers in Wichita might be keeping an eye on this particular issue.  In a survey released by careerbliss.com, Wichita was tabbed as the 6th happiest city for work in the U.S.  Our neighbors in Kansas City managed to end up ranked 16th on the list of unhappiest cities for work in the U.S.  Click here to see more of the survey information. 

Kansas lawmakers introduced several employment-law-related bills this week, the second of the 2012 legislative session.  Here’s a synopsis: 

Late last year, the Federal Motor Carrier Safety Administration ("FMCSA") and the Pipeline and Hazardous Materials Safety Administration ("PHMSA") established rules related to cell phone usage by motor carriers on interstate highways and carriers of hazardous materials on interstate highways.  These new rules went into effect on January 3, 2012.  The new rules, among other things, restrict the use of hand-held mobile phones by drivers of commercial motor vehicles and make employers liable if they encourage or allow hand-held mobile phone use.  Employers should be mindful of the FMCSA's and PHMSA's approach making employers responsible for the actions of their drivers in those cases where the employees use a hand-held phone while performing their duties, carrying out company business, or otherwise acting on the employer's behalf when the violation occurs.  The fine for these violations can be as high as $11,000 per incident.

It goes without saying that this new rule will be difficult for employers to implement and enforce due to the high number of employees carrying their own personal mobile phones.  Employers can protect themselves somewhat by following a few basic precautions.  First, while not a fail-safe remedy, employers should implement a written policy prohibiting hand-held mobile phone use.  The written policy should clearly spell out prohibited behaviors, list the consequences for engaging in the behavior (and don't forget to enforce the policy), and provide employees with some incentive to comply with the policy.  As part of the implementation of the policy, employers should engage in a series of communications with their ........read more

It’s not too late for human resources professionals to make a few resolutions for 2012.  If you need help getting started with your list, check out this article from HR Hero Line, featuring ideas from several employment lawyers across the country, including Kansas Employment Law Blog author Boyd Byers.  (HR Employment Law Resolutions for 2012)  Suggestions include: updating your sexual harassment policy, creating a social media policy, reexamining your FLSA classifications, and ensuring ADA and Genetic Information Nondiscrimination Act (GINA) compliance.

The U.S. Supreme Court issued a decision yesterday in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the application of the ministerial exception.  The short version of the facts is a religious school terminated the employment of a school teacher classified as a "called" teacher and she filed a complaint with the EEOC alleging disability discrimination prohibited by the ADA.  The Supreme Court reiterated the validity of the ministerial exception and noted that it bars employment discrimination suits brought on behalf of a minister challenging a church's decision to terminate the minister's employment.  While it is certainly notable that the Supreme Court validated the ministerial exception, institutions relying on the use of the ministerial exception should keep in mind that it will not apply as a blanket covering all employees or employment decisions of a religious institution.   

There are an estimated 65,000 illegal immigrants in Kansas. As we previously reported, Kansas lawmakers are expected to debate tougher laws targeting these immigrants when the 2012 legislative session opens on Monday, January 9. One proposal likely to receive serious consideration is a requirement that companies doing business with the state use the federal E-Verify system to check workers’ status. Business groups have expressed concern about the cost of compliance with such potential new hiring and employment requirements. We’ll keep you posted on these and other legislative developments that affect employers in Kansas.

On December 23 the National Labor Relations Board agreed to postpone the effective date of its new employee rights notice-posting rule. The extension moves the implementation date from January 31 to April 30, 2012. Under the new rule, most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date. The notice and additional information on posting requirements are available on the NLRB's website, www.nlrb.gov. The NLRB took this action, at the request of the federal court in Washington, D.C., to facilitate resolution of legal challenges to the rule.

An applicant who said she had to work in an office by herself because she smelled like fish. Faking a robbery as a workplace prank. An applicant who listed his dog as a reference on his résumé.

What do the above have in common? All made the top 10 'HR Strange but True!' stories of 2011. To see the complete list and read the stories, click here. 

With the notion that cold weather is on its way, OSHA recently established a web page and issued guidance to employers with the goal of protecting workers during winter storms and from the cold.   For those employers with groups of employees that may become involved in winter storm cleanup efforts or might simply work outside in the elements, a review and implementation of some of OSHA's recommendations and suggestions will go a long way to help avoid citations related to exposing your workers to cold weather related risks.  You can find OSHA's guidance and a link to the web page here. 

We would like to wish all of our readers a happy holiday season.  Take a few days off and get ready as 2012 is just around the corner.  You will need to enter 2012 rested and ready as the pace of change being pushed out from the federal regulatory agencies is bound to pick up as the new year gets underway.  If you haven't already thought about your New Year's resolutions, then get busy because that deadline is rapidly approaching. 

2012 is poised to be a milestone Kansas legislative session.  Some of the items on the agenda, such as immigration reform and changes to KPERS funding, would directly affect certain Kansas employers.  Jim Maag, Governmental Affairs Consultant to Foulston Siefkin LLP's Public Policy Law and Governmental Relations Practice Group, previews the 2012 session in the new issue of Kansas Legislative Insights.  Click here.

The U.S. Department of Labor (DOL) continues its efforts to combat the misclassification of employees as independent contractors.  Last week, the DOL entered into a partnership agreement with the state of Colorado.  This agreement expands the number of states cooperating with the DOL to eleven, including our neighbors to the east and west (Missouri and Colorado).  Stay tuned as the DOL continues to turn up the heat on independent contractor classification issues.  To keep tabs on the DOL's efforts click here.

One perk of being on the U.S. Supreme Court is that you get to decide which cases you want to hear and which ones you don’t. Most cases cannot be appealed to the Supreme Court as a matter of right. So a losing party seeking Supreme Court review must file a petition for writ of certiorari, which must be granted by at least four of the nine Justices. (In case you're wondering, which you probably aren't, "certiorari" is a Latin word meaning "to be more fully informed.") The Court “grants cert.” to only about one percent of the petitions.

Today the Supreme Court agreed to review one employment-law case and declined to review another. The High Court agreed to review the high-profile case involving the 2010 Arizona immigration law that has been copied by several other states. The Court will decide whether federal immigration law preempts a state immigration law that, among other things, makes it a crime for an undocumented alien to seek employment. However, the Supreme Court declined to review a Tenth Circuit Court of Appeals ruling that federal sector Age Discrmination in Employment Act (ADEA) claims are subject to the same "but for" causation standard as private sector ADEA claims.