There have been a number of actions taken by the NLRB in 2011 that have been blog worthy.  For those that have followed along closely, the overwhelming theme of the NRLB's decisions and actions has been extremely pro-union.  Each of the decisions along the way makes it harder for employers to manage their workforce and to avoid unionization should a labor union become interested in representing their employees.  In a decision a few days ago, Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB altered the rules with respect to which employees can be included in a bargaining unit.  The NLRB held that once a union petitions for a specific bargaining unit, for an employer to add other employees to the requested unit it must be demonstrated that they share an "overwhelming community of interest" with the requested unit.  What is new with this decision is the addition of the qualifier "overwhleming."  The requirement to show an "overwhelming" community of interest, in a practical sense, means that employers may struggle mightily to alter the unit of employees the union targets with a petition.  While this may sound like a non-issue for those who have not dealt with union organizing efforts, it may prove to be one of the most significant pro-union decisions issued by the NLRB.  The practical application of this concept is that unions may now choose small subsets of employees within an employer as a target for unionization, and the employer may be powerless to add other similar employees into the election process.  This ability to      Continue Reading...

I've heard of employees being fired for revealing too much skin.  But being squeezed out of a job for refusing to squeeze into a Speedo?  That's a new one.

Roy Lester, a 61-year-old lifeguard, is suing his former employer for age discrimination.  He alleges he was fired when he declined to don a snug-fitting Speedo, and that this dress code policy was a ruse "to get rid of the older guys." 

"I wore a Speedo when I was in my 20s.  But come on. There should be a law prohibiting anyone over the age of 50 from wearing a Speedo," Lester said. 

Read the full story here.

Jason Lacey, a Foulston Siefkin LLP partner who advises employers in the area of employee benefits, presented a seminar titled “Health Care Reform 102” to HR professionals and business managers on August 18 and August 23 in Wichita.  The workshop explored in detail two of the more-troubling aspects of health care reform law for employers:  (1) the new rules prohibiting discrimination in insured health plans, and (2) the new play-or-pay penalties that will impact many employers beginning in 2014. 

Over the past year, the National Labor Relations Board (NLRB) has reviewed a number of cases involving employer social media policies and/or employment terminations related to employee misconduct via a social media outlet.  While the NLRB has decided a few of those cases in favor of the employer, the overall trend has not been positive for employers.  Based on the NLRB's decisions to date, here are a few observations that can help employers stay out of the NLRB's cross-hairs.  

• Employee termination decisions should be carefully considered to ensure the employee is not engaged in some sort of activity that is protected by the National Labor Relations Act (NLRA).  The NLRA protects the rights of employees to engage in concerted activity that relates to the terms and conditions of employment.  Given the NLRB's current expansive reading of these rights, if your employee is complaining on Facebook about something that happened at work, and the discussion involves co-workers, you may want to tread lightly.  Considering the fine lines at play in this area, employers would be wise to consult with legal counsel before moving forward with an employment termination related to a social media post.

• If you have a social media policy, pull it out and think about it some more.  Odds are that the current NLRB will find something wrong with it.  Look carefully to make sure the policy is not overly broad.  If the policy heavily restricts employee usage of social media and discourages employees from engaging in concerted activity, it probably is not going to pass muster with      Continue Reading...

My kids went back back to school this week.  The start of a new school year got me thinking about my dad, who was an elementary school principal for many years.

1. Behave in a safe and orderly way.
2. Respect people and property.
3. Follow directions.
4. Accept correction or a consequence.

In the midst of what has turned out to be one of the hottest summer seasons in a long time, OSHA has released a mobile phone app to assist employers and employees with the prevention of heat injuries.  The app utilizes weather data to calculate the heat index for the user's location, and then assigns a risk level for the type of heat conditions.  The tool also allows the user to review the various protective measures an employer may want to employ for that particular level of risk.  While the issuance is a bit late to be of much help this summer, it may be useful in future summer seasons.  It also signals the Department of Labor's (DOL) commitment to the usage/issuance of mobile phone applications that support the regulatory agenda of the various agencies within DOL.  For more information or to download the current version of the app click here.

The original Kansas Workers' Compensation Act was enacted in 1911.  The Act's centennial saw many changes, as it underwent a major overhaul this year.  (Click here)

These amendments and other new happenings in the world of Kansas workers comp will be the focus of the Kansas Department of Labor's 37th Annual Workers' Compensation Seminar.  The two-day seminar will be held on October 4 and 5, 2011, at the Overland Park Convention Center.  For complete details and registration, go to http://www.dol.ks.gov/seminar/seminar.aspx.

Earlier this summer several federal government agencies announced an initiative targeting immigration services scams.  While this initiative makes reference to protecting innocent and unsuspecting immigrants, the same can be said for some employers.  These immigration services sometimes convince employers they are capable of solving their work authorization problems for some of their employees.  In most circumstances, the employer tries to help these employees and can be duped by these scam artists just like individual immigrants.  If your company is approached by a service promising to provide you with "legal" workers, remember the old adage:  If it sounds too good to be true, it probably isn't true.  If this happens in  your workplace, you should consult your own legal counsel to ensure you are not unwittingly being put into a risky position. For text of the news release click here.

Earlier this year the U.S. Census Bureau released detailed 2010 Census population totals and demographics.  The data reveal that six percent of Kansans were born in a foreign country, and ten percent of Kansans speak a language other than English at home.

• For communications with      Continue Reading...

The I-9 form has become a routine part of the hiring process.  Most employers don't give much thought to the I-9 once the hiring process is completed.  The form is filled out and promptly tossed into the I-9 file, never to be seen again (unless the government visits).  If this describes your company, you might consider changing that practice.  It is a good idea to conduct an audit of your own I-9 documents on a periodic basis to ensure your company is in compliance.   The penalty for failing to properly comply with the I-9 requirements ranges anywhere from $110 to $1,100 per violation.  This can add up extremely fast.  Here are a few things to consider as you review your company's I-9 documents:

1.  Did the employee completely fill out the top section of the form?  Make sure each line is completed and that the employee signed and dated the document.

2.  Are the entries in the document section fully completed?  Make sure each of the lines is completed to the fullest extent possible.  One common error in this part of the I-9 is the failure to list the issuing authority for the document.

3.  Are you properly utilizing List A, B, and C documents?  Remember -- List A is enough by itself.  If you use documents from List B or List C, they are used as a package.  Your form should either have one document in List A or a document in List B and C together. 

4.  Consistency check the documents against the      Continue Reading...