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.

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      Continue Reading...

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      Continue Reading...

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      Continue Reading...

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,      Continue Reading...

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.