At the Foulston Siefkin LLP employment law seminar Vaughn Burkholder, Tara Eberline and Teresa Shulda discussed some common scenarios that a Human Resrouce Director may be confronted with from time to time.  We have had a number of requests to see the cartoon videos used to facilitate the discussion.  In this installment, Frank Manager meets with Human Resources to discuss the potential termination of Robert.  Click here to look in on our patient HR Director as the discussion unfolds. 

Today my kids are at home enjoying their first day of summer vacation.  When I was a teenager, one first-day-of-summer-vacation ritual was repeatedly blasting the song "School's Out" by Alice Cooper for the enjoyment of everyone in town (from a boombox resting on the handlebars of a BMX bike in seventh grade, moving on to the woofers in the trunk of my friend's candy apple red '78 Chevy Nova by the time we were sophomores).  Another, more-constructive rite of summer for many teenagers is working a part-time job.  If your company employs workers under 18, make sure it complies with the sometimes-tricky child labor laws.

Fourteen is the minimum age for most non-agricultural work.  However, youth under 14 may deliver newspapers; perform babysitting or perform minor chores around a private home; perform in radio, television, movie, or theatrical productions; and work in businesses owned by their parents (except in manufacturing, mining, or hazardous jobs). 

Youth 14- and 15-years-old may work outside school hours in certain jobs approved by the Department of Labor, subject to time and hour restrictions.  For example, they cannot work more than 3 hours on a school day or 18 hours in a school week, or more than 8 hours on a non-school day or 40 hours in a non-school week.  And they may not work before 7 a.m. or after 7 p.m., except they may work until 9 p.m. from June 1 through Labor Day.  New regulations that went into effect last summer allow 14- and 15-year-olds to hold jobs not only in the retail, foodservice, and gasoline service industries (as before), but also perform office and clerical work, including in the advertising, banking, and      Continue Reading...

Earlier this month at the Foulston Siefkin LLP employment law seminar, Jeff Hurt provided insights into a variety of issues that can arise under the Fair Labor Standards Act (FLSA).  Items discussed during the session included: 

• The Department of Labor's (DOL) "We Can Help" initiative, which is designed to make employees more aware of their rights and how to file complaints if they believe those rights are violated.

• The DOL, along with taxing agencies at the federal and state level, are looking to recover lost tax revenues by more closely evaluating independent contractor classifications.

• The implementation of new regulations related to "tipped" employees and employees being compensated with a fixed salary for fluctuating hours.

• The likely increase in retaliation claims under the FLSA following a recent U.S. Supreme Court ruling.

With the DOL's new enforcement efforts, it makes even more sense for employers to conduct a self-audit under the direction of legal counsel to ensure compliance and to manage the various risk factors. 

Today the Kansas Supreme Court expanded the recognized exceptions to employment at will by ruling that a claim for retaliatory discharge exists when an employee is fired for filing a wage claim under the Kansas Wage Payment Act (KWPA).  The employee, who worked for a pig-farming company in Long Island, Kansas, alleged he was fired for trying to bring home more bacon by filing a complaint with the Kansas Department of Labor (KDOL) claiming the company was not paying him as required by the KWPA.  The company said the allegation was hogwash and asked the court to dismiss the case.  The district court agreed with the company and hamstrung the employee's lawsuit, ruling that even assuming he was fired because he filed a KWPA wage claim, this was not a recognized exception to the employment-at-will rule. 

The employee, perhaps feeling he had been casting pearls before swine in the district court, appealed.  The Kansas Supreme Court explained that Kansas courts permit the common-law tort of retaliatory discharge as a limited exception to the at-will employment doctrine when it is necessary to protect a strongly held state public policy from being undermined.  The Kansas Supreme Court has previously endorsed public policy exceptions in four circumstances: (1) exercising rights under the Kansas Workers’ Compensation Act; (2) filing a claim under the Federal Employers Liability Act; (3) whistleblowing (good-faith reporting of an employer’s or coworker’s violation of the law pertaining to public health, safety, or welfare); and (4) exercising a public employee's First Amendment right to free speech on an issue of public concern.  The Court reasoned that the KWPA—which      Continue Reading...

Social media (Facebook, Twitter, MySpace, etc.) issues have made for interesting news so far this year.  The National Labor Relations Board (NLRB), which has weighed in on social media handbook policy related issues, recently issued a complaint against a non-profit agency after five employees were discharged from their employment. 

The trouble started when an employee posted a message on her personal Facebook page related to the agency's shortcomings in serving its clients and naming a co-worker.  In response to the posting, several of the employee's co-workers engaged in a discussion about staffing levels and workloads at the agency via comments to the initial Facebook posting.  When the employer discovered the discussion, all five employees involved were discharged for the comments.  The employer says the postings harassed the named employee.  

As you might guess, the NLRB took issue with the discharges since the group discussion related to working conditions.  The NLRB's position is the five employees were engaged in concerted activity related to the terms and conditions of their employment, and such activity is protected from interference (read discharge) by the employer. 

This complaint is yet another attempt by the NLRB to weigh in on social media issues.  The NLRB is aggressively policing employer social media policies to ensure they are not overly broad and restrictive.  This complaint furthers that effort by attempting to prohibit employee discipline/discharge for employees discussing workplace concerns via social media.  As we all saw throughout the Middle East, social media sites can provide an easy means for individuals to spread messages to a widespread and mainly anonymous audience.  The NLRB's efforts in early      Continue Reading...

The Department of Labor recently issued a set of new regulations covering a variety of wage-and-hour topics.  Click here to read a summary of the new regulations. 

Earlier this week at the Foulston Siefkin LLP employment law seminar, David Rogers and Teresa Shulda provided employers with an overview of the entire litigation process from demand letter through the administrative process and into a jury trial.  The presentation highlighted how HR professionals are typically involved at each stage of the process.  The session concluded with a discussion of a scenario demonstrating some pitfalls for HR.  Some lessons learned include:

• The things HR professionals do and say early on in a case can make a huge difference in the outcome;
• Following the company's policies is key to defending an employment-related claim;
• Taining HR and Management on the company's policies is critical;
• Employers need to develop a document preservation process ("litigation hold") and implement the process when a claim is made; and
• Be cautious when responding to EEOC or state agency inquiries--providing inconsistent or invalid reasons for an employment decision can make it next to impossible to get the case dismissed without a trial. 

President Obama raised the issue of immigration reform during a recent speech in El Paso.  While no specific legislation has been introduced, the White House continues to highlight a set of goals for comprehensive immigration reform.  The general approach includes:

• A path to citizenship for illegals currently in the country (requiring a penalty, tax payments, and English proficiency);
• Provision of legal status for individuals who graduate from U.S. colleges if they chose to remain and start a business; and
• The ability for illegals brought to the U.S. as children to remain as citizens and receive educational opportunities.

Stay tuned as the discussion on immigration reform continues across the country.  This is a hot-button issue with politicians (and voters) at both the federal and state levels across the nation. 

On May 9 the U.S. Department of Labor announced the launch of its new smartphone application, a user-friendly electronic timesheet employees can use to track their hours worked and calculate wages they are owed.  The app allows employees to record regular work hours, break time, and any overtime hours for one or more employers.  Users can manually enter their time, or use simple “start work” and “stop work” buttons that automatically record their time worked.

DOL is providing this new technology to help workers keep their own time records rather than rely on their employers’ records.  If an employer fails to maintain accurate time records, the employee may then use this information as evidence to try to prove that he or she performed work for which she was not compensated.  

A few weeks ago I discussed a survey in which hiring managers were asked about the most-common, and the most-outrageous, mistakes made by job applicants during interviews.  (Click here to read the original post.)

One reader shared the following story about a job seeker who lost out on a job because of pre-employment misconduct following his interview.  The applicant was professional and well-behaved during the interview process.  But things went south after he received a conditional offer of employment (pursuant to the ADA) and was sent to undergo an off-site medical evaluation (as all persons being hired for this position were required to do).  Upon arrival, the job seeker became belligerent and threatening to the medical staff.  Things were so bad, in fact, that the doctor refused to examine him, instructed him to leave the premises, and called the police.  Needless to say, the conditional offer of employment was withdrawn.

While an extreme example, this story shows how some applicants may be able to hide their true stripes during the formal interview process.  So you need to make sure your hiring process is designed to weed out persons who would not be a good fit for your organization.  I know of several employers who swear that adding one simple step to the applicant screening process has worked wonders for them.  What do they do?  After a job interview, HR or the hiring manager solicits information from the receptionist to get her assessment of the candidate.  If the applicant was rude, disrespectful, condescending, or otherwise unpleasant to the receptionist, then it's a safe bet the applicant is      Continue Reading...

Summer is right around the corner.  For most of us, the arrival of warmer weather presents opportunities for fun in the sun.  There are, however, a significant number of workers that must work in what are sure to be extreme heat conditions.  For those employers exposing their employees to these conditions, it is important to take a few mintues to consider workplace safety issues presented by the heat.  Now is the time to make sure your employees are properly trained and properly protected from this hazard.  Employers that fail to address this concern may end up with a general duty clause citation from OSHA should a heat incident occur.  For more information check out OSHA's heat illness prevent page here.