Legal Issues

HR News & Trends, Legal Issues

Be Careful What You Wish For: Congress May Allow “Comp Time”

by on Apr 29, 2013, 9:12 AM  |  No comments yet
Comp time

By Ted Boehm

The U.S. House of Representatives will consider amending the federal Fair Labor Standards Act to permit private-sector employers to offer compensatory time off in lieu of monetary overtime compensation.

The fast-tracked Working Families Flexibility Act of 2013 (H.R. 1406) was approved by a House committee only eight days after its introduction.

Under the proposal, eligible non-union employees could agree to a comp-time arrangement “in writing or [in an] otherwise verifiable record.” The policy could be implemented for eligible unionized employees via a collective bargaining agreement. Participating employees would then receive at least 1.5 hours of comp time for each overtime hour worked. Read more…

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Legal Issues

Workplace Investigations: New Guidance From the NLRB

by on Apr 26, 2013, 11:25 AM  |  No comments yet
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By Lorene Schaefer

In July 2012, the National Labor Relations Board held that a blanket approach and policy requiring confidentiality during all internal workplace investigations violates employees’ concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).

As a result, employers were encouraged to review and modify, where appropriate, all internal investigation policies, procedures and forms to determine whether there are nondiscretionary requirements that employees always be instructed to maintain confidentiality of workplace investigations (You can read more about the July 2012 NLRB decision here).

Recently, the NLRB released an Advice Memorandum that provides additional clarification on its position on confidentiality in workplace investigations. Obviously, an Advice Memorandum does not have the same precedential value as a NLRB decision. Read more…

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HR News & Trends, Legal Issues

Congress Blocks One Proposed Ban on Requesting Social Media Passwords

by on Apr 24, 2013, 11:27 AM  |  No comments yet
social media privacy

By Eric B. Meyer

Last week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.

However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:

Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.” Read more…

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Legal Issues, Training & Development

Why Discipline Is Essential For a Credible Workforce Safety Program

by on Apr 23, 2013, 11:27 AM  |  No comments yet
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By Howard Mavity

An effective safety process requires consistent discipline to support other company safety efforts, but it doesn’t happen.

OSHA is aggressively suing employers for allegedly using safety rules to terminate employees for reporting workplace injuries. And in fact, it often turns out that almost the only employees terminated for safety violations were those terminated for unsafe behavior after an injury.

Why? The employer was sloppy about disciplining employees for unsafe behavior, and the only time the employers “caught” employees acting unsafely was … investigating the injury. Read more…

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HR News & Trends, Legal Issues

Survey Says Employees Should Not Be “Friending” Their Bosses on Facebook

by on Apr 22, 2013, 10:20 AM  |  No comments yet
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By Eric B. Meyer

When I first began drafting social media policies and offering social media training for clients, I preached that “friending” the boss was a bad idea.

The lawyer in me was concerned for two reasons:

  1. Facebook’s informality would facilitate behavior from a supervisor that a company would not otherwise tolerate in the workplace;
  2. If a supervisor knew about, but failed to report, employee actions on Facebook that would violate an anti-harassment policy, the company could lose a valuable discrimination defense.

So, what do non-lawyers have to say about friending the boss on Facebook? Read more…

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HR News & Trends, Legal Issues

Breaking Bad? New Mexico Latest to Pass Workplace Social Media Law

by on Apr 19, 2013, 10:15 AM  |  No comments yet
Facebookpasswords Social media

By Eric B. Meyer

No way, Heisenberg is gonna be cool with this. Not a chance.

Earlier this month, New Mexico joined Maryland, Illinois, California, Michigan, and Utah, by becoming the sixth state to pass a law, which makes it unlawful for an employer to request or require that a prospective employee fork over a social media password as a condition of gaining employment.

However, New Mexico’s law is unique in that it only coves prospective employees, and not the existing workforce. Read more…

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HR News & Trends, Legal Issues

Four Ways to Successfully Defend a Claim Under the Equal Pay Act

by on Apr 15, 2013, 10:30 AM  |  Comments Off
Equal_Pay_2-20-12

By Eric B. Meyer

In the 2 1/2 years of writing this blog, I’ve never had a post on the Equal Pay Act  – until now.

The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated “Equal Pay Day” last week. So, now is as good a time as any to address the Act through this recent case from the Third U.S. Circuit Circuit Court of Appeals. Read more…

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HR News & Trends, Legal Issues

Swearing at Your Employee May Get You Sued By … OSHA??

by on Apr 15, 2013, 9:12 AM  |  No comments yet
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By Howard Mavity

Hopefully you are aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 21 anti-retaliation laws enforced by special investigators from OSHA’s Whistleblower group. If not, check out the News Room on OSHA’s Whistleblower page.

A recent OSHA’s news press release advised that:

The U.S. Department of Labor has filed a lawsuit in the U.S. District Court against Duane Thomas Marine Construction LLC and owner Duane Thomas for terminating an employee who reported workplace violence, in violation of Section 11(c) of the OSHAct.”

Seems fairly standard. OSHA asserts that an employer fired an employee for complaining about unsafe work conditions. It’s a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in the current environment? Such claims are increasing. Read more…

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HR Basics, Legal Issues

Employment At Will: The Most Misunderstood Workplace Principle

by on Apr 10, 2013, 10:20 AM  |  1 comment
youarefired

By John A. Gallagher

Most Americans have a general understanding of the “employment at will” doctrine. They understand that it means that they are not guaranteed employment for any specific period of time.

In general, and at least intellectually, they understand that they can be fired at any time, and for any reason.

However, it is my experience that folks do not know what that overriding principle, that one can be fired at any time and for any reason, truly means and how it plays out in the workplace.

In order to truly understand this principle, it is helpful to examine workers who are not at-will employees. We will look at the three most common-type employees, from most populous to least. Read more…

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HR Basics, Legal Issues

Are Rarely Performed Job Functions “Essential” Under the ADA?

by on Apr 9, 2013, 9:12 AM  |  No comments yet
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By Eric B. Meyer

You run a delivery service using large trucks and require that drivers be qualified by the U.S. Department of Transportation. Although your facility managers aren’t often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified.

One day, a manager with a disabling eye injury comes to you and asks for an accommodation under the Americans with Disabilities Act: to be excused from driving trucks so that he may focus on “managing.”

Assuming that no other reasonable accommodation exists, must you give it to him? Read more…

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