Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Christmas won’t be merry for these employers!

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Employment Law Blog Carnival, Harassment, Labor Relations, Lactation, Pregnancy, Wage-Hour

Oh, you better watch out! A lot of employers have been naughty. I checked the court dockets, and would you believe all of these employment lawsuits filed in the week before Christmas! Santa Claus.flickr.Vanessa Pike-RussellCC

Cratchit v. Scrooge & Marley (Madison Co. (London) OH Ct. of Common Pleas). Plaintiff asserts claims against employer under Americans with Disabilities Act, contending he was harassed and discriminated against based on his association with his son, an individual with a disability. Contends ghosts of Christmases past should be included in determining whether Defendant has at least 15 employees. Seeks injunctive relief, back pay and front pay, compensatory and punitive damages, and attorneys’ fees.

Elves and Elf Does 1-100 v. Santa Claus and Mrs. Claus, in their official and individual capacities (U.S. Dist. Ct., Northern District of North Pole). Putative class and collective claims under Fair Labor Standards Act (“FLSA”) and the North Pole Wage and Hour Act (“NPWHA”). Plaintiffs allege that they and others similarly situated were required to perform off-clock work between Halloween and December 24, which resulted in payment below minimum wage and denial of overtime. Plaintiffs allege that this off-clock work was pursuant to employer policies issued from the highest level. Claim under FLSA for time spent in security checks at end of shift was voluntarily dismissed. Plaintiffs contend that they were also denied daily overtime and breaks, in violation of NPWHA. Suit contends that Defendants’ violations were willful and seek three years of back pay, liquidated damages and attorneys’ fees.

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NLRB Issues Final Rule on Quickie Elections: What employers can expect, and how to prepare

Posted in Labor Relations

This is a client bulletin by David Phippen that we emailed to subscribers yesterday afternoon. I’m re-posting it here, in case you don’t already subscribe to Constangy’s bulletins. (If you don’t and would like to, please send me (Robin) an email, and we’ll put you on the list. Subscription is free.)

By David Phippen
Metro Washington D.C. Office

As we alerted you last week, on Monday the National Labor Relations Board published its long-awaited final rule on so-called “quickie” or “ambush” elections. The final rule is similar, but not identical, to a prior Board attempt in 2011. The new rule will take effect April 14, 2015, but employers will need to be prepared well before the effective date.

The new regulations are expected to have a substantial effect on the union representation election process unless their use is blocked by a court or by legislative action. Most significantly, the period between a petition and the election will be shortened, probably to a period between 13 and 21 days. This shortened period will make it more difficult for employers to inform employees before the election about relevant issues and the employer’s reasons for opposing a union.

Not surprisingly, the vote to adopt the final rule was split along party lines. Democrats Chairman Mark Gaston Pearce, and Members Nancy Schiffer and Kent Hirozawa, who voted to issue the final rule, characterized the changes as simply modernizing, streamlining, and standardizing Board procedure, increasing transparency, and reducing unnecessary litigation. Republican Members Harry Johnson and Philip Miscimarra voted against the rule.

Key changes brought about by the final rule are summarized here:

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NLRB: Hot for the holidays

Posted in Labor Relations, Social media, Uncategorized

The National Labor Relations Board is busy — the Board came out late last week with a decision saying that employees can have access to their employers’ email systems for organizing activities under most circumstances. David Phippen has the full story here.

Also, on Friday, the Board issued its final rule on “quickie elections.” David is reviewing the new rule and will have a comprehensive bulletin very soon. Meanwhile, here is what he had to say about that on Friday (since it’s Tuesday now, I’ve made a few minor updates):

The National Labor Relations Board announced Friday its final rule on representation case procedures (familiarly known as “the Quickie Election Rule”). The final rule was published yesterday in the Federal Register and will take effect on April 14, 2015.

The final rule essentially includes, with slight modifications here and there, all of the troublesome items proposed in 2014, which we summarized in February. The new regulations generally (1) compress the timetable between petition and election, making it more difficult for the employer and employees opposing a petitioning union to make their cases and retain potentially necessary legal counsel, (2) give unions access to more information about employees, (3) set up numerous procedural requirements for employers to meet or potentially be tripped up later in the case, (4) limit hearing issues and appeals that may be raised before an election, which could allow elections to take place despite uncertainty about supervisory status and individuals’ eligibility to vote.

We are reviewing the regulations and will issue a more comprehensive Client Bulletin shortly.

More to come — don’t you dare go away!

Employment law advice you should never follow

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Family and Medical Leave Act, Pregnancy, Retaliation, Safety, Violence
Clocks.Paris Clocks.flickr.NickCC

Tick-tock . . . time to get a new lawyer!

Employers, if you’re getting advice like this from your employment lawyer, do you know what time it is? Time to get a new employment lawyer.

“Never give in on unemployment.”

This is terrible advice on so many levels. First, an employee who doesn’t have even the relatively minimal income provided by unemployment is going to be that much more likely to sue you — as a matter of financial survival, if nothing else. Second, if she wasn’t mad before, she sure will be after you try to deprive her of her measly $200 a week.

If you let a terminated employee collect unemployment or decline to appeal when you lose at the early stage, that cannot be used against you. Not with the EEOC, not in the courts, not anywhere. On the other hand, if you keep on fighting and losing, at some point the decision against your company will become a judicially settled matter, which means you will be stuck with that finding for all time.

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5 legal traps for the wariest employer

Posted in Affirmative Action, Americans with Disabilities Act, Employment at Will, Family and Medical Leave Act, Gender Identity Discrimination, Harassment, Protected Concerted Activity, Retaliation, Wage-Hour

You’re an employer who tries to do the right thing. But what hidden traps are out there, waiting to grab your ankle and yank you into a lawsuit? Here are a few that cause trouble for even the best employers:

Mousetrap.Food Addiction.flickr.Rennett StoweCC

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A few workplace-related things we can be thankful for

Posted in Safety

From a labor and employment law standpoint, I’m not sure we have a lot to be thankful for this year. But ’tis the season, so here are a paltry few:

Be thankful that your employer doesn’t fire you while you’re on the air. BenThanksgiving Card.flickr.DaveCC Finfer, co-host of a Chicago sports talk radio show learned that he was losing his job through a tweet that came through while he was on the air last week. Mr. Finfer understatedly called the announcement a “letdown” and then a little less understatedly went on to rant say, “Why is it so hard to tell your employees that they are losing their jobs? . . . We found out . . . while we were on the freaking air. . . . now we have to sit here and do a show for an hour and forty minutes?”

The station, owned by Tribune Media, had been in existence for only nine months and was reportedly losing money.

Be thankful that you don’t work for NBC’s Today show. Last week, I posted about the swift termination of Jamie Horowitz, formerly of ESPN, who had been brought in to make the show more competitive against its arch-rival Good Morning America. In the few short days since I posted that, we have learned that Mr. Horowitz wanted to fire Savannah Guthrie, demote Natalie Morales, and remove Al Roker from doing the weather. (All of this was before Mr. Horowitz was fired himself, allegedly due to the intervention of Matt Lauer.) But they all seem so smiley and chatty and friendly! I can’t believe it!

Turkeys on the Fence in Santa Teresa County Park

“Pssst! OK, you guys – here’s the escape plan . . .”

Be thankful that you don’t work for Walmart if you want Thanksgiving Day off . . . or that you don’t work for Costco if you were hoping to pick up a few extra bucks for your holiday shopping needs. The “Black Thanksgiving” debate rages on. By the way, the Occupational Safety and Health Administration has genuinely helpful tips for retail employers to ensure the safety of their employees during all of the Black Friday (or Thursday) insanity.

Black Friday.flickr.PowhuskuCC

These Black Friday shoppers look remarkably civilized, don’t they?

Be thankful that you don’t hate your job. A survey of British workers showed that they were much more likely to eat junk food as “comfort” when they were having a bad day at work. They’re also more likely to scarf it down, instead of masticating slowly and deliberately.

In case you haven’t seen it by now, please get over to ere.net and read my article, “Top Ten Hiring and Recruiting Blunders by Employers.” You’ll be thankful that you did!

And here are a few persons and things for whom/which I am genuinely thankful:

*I am thankful for my dear sons, and my new daughter-in-law and her wonderful family, and my mom and sis and brother-in-law and nephew, and all of my extended family and friends. I love you guys! Also, my two pussycats.  :-)

*I am thankful to all of you for reading this blog, and for voting us into the ABA Blawg 100 for 2014! (And a special thanks again to Blawg 100 Hall of Famer, Dan Schwartz.) I’d also like to congratulate some of the other legal bloggers and friends with whom I am humbled to share this honor:  Donna Ballman, Molly DiBianca (Hall of Fame), Bill GorenJon Hyman, Eric Meyer, and Jeff Nowak.

*I am thankful for my firm’s managing chairman, Neil Wasser, for letting me do this thing and for always being supportive, and for Chief Marketing Officer Tori Whitaker and her excellent team, and to my colleagues who’ve contributed posts this year: Cara Crotty, Tommy Eden, and David Phippen. Also, a big thank-you to the great folks at Lexblog, especially Katy Maynard, and Kevin and Colin O’Keefe.

*I am thankful for my clients, colleagues, and co-workers. (Too many to name, but you know who you are.)

Have a safe and happy Thanksgiving, y’all, and we’ll be back no later than Friday, December 5. 


Image credits: All from flickr, Creative Commons license. Vintage Thanksgiving postcard photographed by Dave, four turkeys by Don DeBold, Black Friday queue by Powhusku.

EEOC promises guidance on wellness programs in February

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

Good news! The Equal Employment Opportunity Commission recently announced in its 2015 regulatory agenda that it will be issuing proposed regulations on the impact of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act on wellness programs. The proposed regs are expected in February.Smoking man

To read about the continuing saga of the ADA/GINA and employer wellness programs, go here, here, here, here, here, and here.

The EEOC recently sought an injunction to stop Honeywell International from requesting health and genetic information from current employees* in connection with a wellness program. The ADA and the GINA prohibit employers for asking for it unless it’s either “job-related and consistent with business necessity” or done in connection with a voluntary wellness program. The information was clearly not JRCBN. And because the financial penalties were stiff for employees who elected not to participate, the EEOC contended that the program was not truly “voluntary,” either. (Only problem was, Honeywell’s program fully complied with the wellness program provisions of the Affordable Care Act.) The EEOC’s request for an injunction was denied.

*Under the GINA, medical information about an employee’s family member is considered “genetic information.” This oddly includes “spouses,” even though spouses are not related. This was the basis for the GINA allegation against Honeywell – it was requesting spousal medical information.

The EEOC has another lawsuit pending against Orion Energy Systems, a Wisconsin company that allegedly terminated an employee for refusing to participate in the wellness program, complaining about it, and encouraging co-workers to decline to participate. The EEOC alleges ADA retaliation in that case.

Anyway, thank you, EEOC — employers and their attorneys are eager to hear what you have to say.

Image credit: Wikimedia Commons.

You love us! You really love us!

Posted in Uncategorized

Many, many thanks to our readers who voted Employment & Labor Insider into the ABA Blawg 100 for 2014! You are the greatest!



And I hate to even ask, but . . . if you can stand to do this one more time, please go here to vote for us to be one of the Best of the Best.

(Sorry – I promise to leave you in peace now – and thank you again!)

“Weakest link” is no way to run your workplace

Posted in Corporate Culture

If news reports are true (and perhaps they are not), then the ex-General Manager of NBC’s Today show provides a good example of how not to treat employees.

Mistakes Demotivational Poster.flickr.DuncanHullCC

Jamie Horowitz was hired away from ESPN to save the Today show, which has fallen behind its rival Good Morning America in the ratings.

He was fired only 78 days later, and he hadn’t even had a chance to take over the show. His “listening tour” with employees, which began in September and was continuing when he was fired, is supposedly what did him in.

Reportedly, Mr. Horowitz didn’t get along with his boss, NBC News President Deborah Turness, a normal enough thing among top-level folks.

Please check out my new article, “Top 10 Hiring and Recruiting Blunders,” on ere.net. Even though you don’t need it, you may have a “friend” who does.  :-)

But employees also reported that, as part of Mr. Horowitz’s “listening tour,” he asked them in private meetings which of their co-workers should be “voted off the island” and who was the “weakest link.” He also allegedly told people that their co-workers were talking about them behind their backs. Employees said that his questions and comments created “instability and insecurity” in the workplace.

Ya think?

Again, I realize that the news reports may be inaccurate, or that Mr. Horowitz’s comments may have been taken out of context, or that Mr. Horowitz may have been a victim of Matt Lauer. But there is, unfortunately, a school of business thought that holds that employee “insecurity”  somehow leads to unheard-of levels of creativity and achievement. Like the “forced rankings” which were so in vogue a few years ago, in which the employee with the lowest performance rating in the group gets fired, even if the peers all got As and the “weak link” got an A minus.

Al Roker.flickrCC

“I’m not a weak link. Now, that Savannah Guthrie — she’s what you call a weak link!”

Aren’t there enough natural feelings of competitiveness and envy in workplaces already? Do employers really need to go out of their way to make it worse?

Manufactured workplace rivalry can cause morale to plummet and teamwork to become nonexistent. Which in turn results in high turnover, including the loss a lot of people you probably didn’t think were “weak links.”

From a legal standpoint, a hyper-competitive workplace environment dramatically increases the odds that the employer will become a defendant in a lawsuit, the subject of an EEOC charge or other administrative complaint, or the target of a union organizing campaign. It can also result in increased rates of workers’ comp and disability-related claims because employees are too stressed out to be able to face Lord of the Flies each day.

And some business commentators say that it doesn’t even help the employer end up with the creme de la creme.

Of course, low-performing employees should be dealt with accordingly. But a “weakest link” approach is not the answer. Like Jamie Horowitz did (whatever the real reason may be), you may find out that the  ”weakest link” is you.



*Correction to last week’s holiday party blog post. I want to thank reader Jill Domingue, who provided me yesterday with better information about the beliefs of Jehovah’s Witnesses with respect to parties. My post last week on holiday parties said that Jehovah’s Witnesses believed that parties were sinful. Jill, who is a corporate event planner and a Jehovah’s Witness, sent me this information and gave me permission to quote her:

Hello Robin,

I am a corporate event planner and a Jehovah’s Witness.

I appreciate your article because of relaying sensitivity to other religions during corporate events. . . .

However, I would like to clarify one thing. Jehovah’s Witnesses do have parties but if the party is centered on a religious celebration they will not take part in it. Or if they feel the party will not be professionally managed, i.e., uncontrolled alcohol at event, etc.

Thank you again for speaking up for other faiths this is a breath of fresh air.

 Jill, thank you for the clarification! I’ve made a correction to the blog post itself, as well.

*Volkswagen-Chattanooga and the United Auto Workers, from David Phippen. If you are following this most-interesting story, you won’t want to miss David’s latest. Will European-style labor relations work in the U.S.A.? Is that even a legal option here?

*Last and definitely not least, please do check out the November Employment Law Blog Carnival, Black Friday Edition, hosted by Ari Rosenstein of CPEhr. It’s free to read, making it the best bargain you are likely to find this season!

(Speaking of Black Friday, next week’s “Friday” post will be up on Wednesday because of the Thanksgiving holiday.)


Image credits: Still photos from flickr, Creative Commons license. Demotivational poster by Duncan Hull, Al Roker by Troy Tolley.