Santa Claus, The Employee

My annual re-post of a very clever article analyzing the FLSA and Jolly Ol' Saint Nick, by Natalie F. Hrubos, an attorney in the Philadelphia office of Duane Morris. The original article can be found here: http://www.duanemorris.com/articles/santa_and_the_FLSA_4698.html

Delivering presents to the well-behaved children all over the world in a single night is hard work. Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of eight flying reindeer. But does that mean he is any less entitled to compensation? Of course not! Let's just assume that Santa's employer—the North Pole, obviously—is covered by the Fair Labor Standards Act (FLSA). To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

First, is Santa's position exempt or nonexempt? There's no doubt that Santa works more than 40 hours per week during the holiday season. Think of all the letters pouring in from kids across the globe. Think of how much time it takes to figure out who's been naughty and who's been nice. The guy sees you when you're sleeping. If Santa's nonexempt, the North Pole owes him some serious overtime.

Santa may qualify for one of the FLSA's white-collar exemptions. For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise: He customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer. But if it's really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

Santa may, however, qualify for the administrative exemption. He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole. But how clean must a child's bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings? And what if she tells the truth most, but not all, of the time? Santa necessarily uses his discretion and independent judgment when making these determinations.

That said, to qualify for the exemption, Santa's primary duty must be the performance of office or non-manual work. Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered nonexempt, manual work. But Santa does that only one night per year. Responding to letters from children could qualify as office work, but is that Santa's primary duty and is it directly related to the running or servicing of the North Pole's business? If either answer is "No," Santa may not qualify for the administrative exemption.

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn't mean Santa qualifies as exempt from the FLSA. If he doesn't meet the duties test for one of the FLSA exemptions, Santa is nonexempt and must be paid overtime compensation for every hour he works over 40 hours per week.

If Santa's position is nonexempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk-and-cookie breaks; whether Santa is "on the clock" when he's using his iPhone to check in with the head elf; and whether his travel time to and from the North Pole and from house to house is compensable.

In some cases, the law of the North Pole may be more restrictive than the FLSA, and Santa's employer will be required to comply with whichever law is more beneficial to employees. The same is true with state law. For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement.

It doesn't take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season. Even if you're not the North Pole, you don't want to be on the wage-and-hour naughty list. Much like Santa, costly wage-and-hour lawsuits keep coming to town, so you may want to consider checking with counsel on how best to review and, if necessary, correct your pay practices. Happy holidays!

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Public Employees Entitled to Two Additional Unpaid Holidays for Faith or Conscience

In an interesting effort to accommodate non-Judeo-Christian public employees, a new Washington law, which took effect on June 12, 2014, gives public employees an additional two unpaid holidays per calendar year "for reasons of faith or conscience." The measure amends RCW 1.16.050, which had granted public employees one paid floating holiday per calendar year in addition setting out the legal holidays recognized by the State of Washington. The new law adds two unpaid holidays allows for accommodation of employees with holy days which do not coincide with state legal holidays. The bullet points of the new law are:
1.  Affected Employers. The statute covers employees of the state and its political subdivisions, including all colleges, universities, counties, cities and towns. It also likely extends to municipal corporations such as fire districts and public transit agencies.
2.  Covered Absences. The new law covers absences for “a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization.” This definition encompasses religious holidays, services and other activities organized by a religious organization, even if not inherently religious. The statute also applies to employees who desire time off for reasons of “conscience,” thus covering employees who do not belong to organized religions.
3.  Denying Requests for Leave. Employers may deny requests for leave under the new law if the absence would impose “an undue hardship,” or if the employee’s presence is necessary to maintain “public safety.”
4.  Implementation. Although employers have a previous obligation under the Washington Law Against Discrimination to accommodate employee religious beliefs, this new statute creates a clear entitlement for two unpaid holidays each year. The new law requires that “local government employers” adopt guidelines implementing the new leave entitlement by ordinance or resolution of their legislative authority. Other public employers should implement the statute by adopting guidelines in personnel policies and procedures. These guidelines should explain the process for requesting leave, specifying where the request should be directed, the amount of required advance notice, and the person responsible for evaluating the request.


Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Washington Court Holds Employers Can Retaliate Against Indepedent Contractors

An independent contractor truck driver named Larry Currier heard another driver “yell ... at a Latino driver ... ‘[h]ey, f**ing Mexican, you know why you have to go to Portland and I don’t? Because f**ing Mexicans are good at crossing borders.’” Currier also reports previously having heard other racially motivated slurs and comments directed at a number of minorities who work for the same trucking company. The truck driver who overheard the racial slurs reported them to NSI’s quality assurance manager.

Two days later NSI terminated his contract.

He subsequently filed suit against NSI for retaliation under the Washington Stare Law Against Discrimination ("WLAD"), asserting his contract was terminated because he had reported discriminatory conduct.

In its defense, Northland Services Inc. ("NSI") argued that, "as an independent contractor, [Currier] ... was not an “employee” within the meaning of the WLAD and that it had "terminated ... [the contractor’s] contract because of poor performance and disruptive behavior ... [and therefore did not fire the contractor for discriminatory behavior].”

The Washington Court of Appeals, Division One, however, found that the WLAD applies to this case despite the fact that Currier was not an employee of NSI. In so doing, the Court upheld a trial court decision that NSI was liable for the retaliatory discharge of the independent contractor under the WLAD. The decision noted that the WLAD was enacted by the state legislature to “eliminate and prevent discrimination.” “The WLAD ... extends broad protections to ‘any person’ engaging in statutorily protected activity from retaliation by an employer or ‘other person.’”

The court noted that the Washington Supreme Court had previously held in Marquis v. City of Spokane that “under the broad protection [of the WLAD] ... an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.” The court also stated that “Washington cases have ... held that a plaintiff need not prove the conduct opposed of was in fact discriminatory but need show only that he or she reasonably believe it was discriminatory.”

The court stated that it did “not find credible the claim that ... [the contractor’s complaint to NSI] had no effect on the decision to terminate ... [the contractor’s] contract.” “Substantial evidence supports the court’s conclusion that ... [the contractor’s] complaint ‘tipped the scales toward termination.’”

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Perseverance & Follow Through...

"Genius begins great works; labor alone finishes them." ~ Joseph Joubert

It Is All Relative.

Life is lumpy. And a lump in the oatmeal, a lump in the throat, and a lump in the breast are not the same lump. One should learn the difference. ~Robert Fulghum, Uh-Oh

New Washington Social Media Law Protects Employees’ Accounts

In response to growing issues related to privacy and an employee's online presence, Governor Jay Inslee recently signed s new law making it unlawful for employers to require an employee or applicant to disclose social networking website usernames or passwords, or to force an employee or applicant to add any person to the employee’s list of social networking contacts. This law will become effective July 28.

Washington joins a host of other states that have taken legislative action to protect employee social media accounts. Utah, New Mexico, California, and Michigan have passed similar laws, and more than 20 other states have similar bills pending.

Pertinent aspects of the new Washington law include:

* The law applies to “any person, firm, corporation, or the state of Washington, its political subdivisions, or municipal corporations.” Employers of any size are therefore covered by the law.

* The law specifically states that it does not prohibit an employer from using public domain to obtain information about an employee or applicant Thus, employers may continue to access publicly
available social networking profiles or comments. (Be sure to read up on the articles related specifically to Facebook and LinkedIn or give me a call to discuss some of the other risks and implications related to using even public information.)

* Employer-maintained social networking accounts remain fully accessible and are not impacted by this law. Employers are also still free to enforce existing social media policies that do not conflict with the new law or the National Labor Relations Act.

* Certain workplace investigations are specifically exempt from the new law. When employers are conducting workplace investigations surrounding an employee’s activity on his or her personal social networking account, they are permitted to request content from an employee’s account but are still prohibited from requesting an employee’s login information. Under this narrow exception,
the purpose of the investigation must be to: “(i) ensure compliance with applicable laws, regulatory
requirements, or prohibitions against work-related employee misconduct; or (ii) to investigate an
allegation of unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to the employee’s personal social networking account.”

With this new law in mind, employers whose policies currently require employees or applicants to disclose personal username and passwords should begin implementing a change to those policies. Employers should also train anyone involved in making employment decisions on the new law’s provisions.

If an employer determines that it may need social media content to investigate legal compliance, work-related misconduct, or the improper disclosure of the employer’s proprietary or confidential information, then the law allows employers to request content from personal social media sites. Employers should consider seeking advice of counsel when considering whether such a need exists in a particular situation.
Employers should periodically review their existing social media policies and practices to make sure that they are in compliance with all current laws.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Welcome Spring!

There are exactly as many special occasions in life as we choose to celebrate. ~ Robert Brault

Santa and the FLSA

Reposting a very clever and important article written by Natalie F. Hrubos, an attorney in the Philadelphia office of Duane Morris. The original article can be found here: http://www.duanemorris.com/articles/santa_and_the_FLSA_4698.html

 

Delivering presents to the well-behaved children all over the world in a single night is hard work. Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of nine flying reindeer. But does that mean he is any less entitled to compensation? Of course not! Let's just assume that Santa's employer—the North Pole, obviously—is covered by the Fair Labor Standards Act (FLSA). To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

First, is Santa's position exempt or nonexempt? There's no doubt that Santa works more than 40 hours per week during the holiday season. Think of all the letters pouring in from kids across the globe. Think of how much time it takes to figure out who's been naughty and who's been nice. The guy sees you when you're sleeping. If Santa's nonexempt, the North Pole owes him some serious overtime.

Santa may qualify for one of the FLSA's white-collar exemptions. For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise: He customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer. But if it's really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

Santa may, however, qualify for the administrative exemption. He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole. But how clean must a child's bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings? And what if she tells the truth most, but not all, of the time? Santa necessarily uses his discretion and independent judgment when making these determinations.

That said, to qualify for the exemption, Santa's primary duty must be the performance of office or non-manual work. Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered nonexempt, manual work. But Santa does that only one night per year. Responding to letters from children could qualify as office work, but is that Santa's primary duty and is it directly related to the running or servicing of the North Pole's business? If either answer is "No," Santa may not qualify for the administrative exemption.

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn't mean Santa qualifies as exempt from the FLSA. If he doesn't meet the duties test for one of the FLSA exemptions, Santa is nonexempt and must be paid overtime compensation for every hour he works over 40 hours per week.

If Santa's position is nonexempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk-and-cookie breaks; whether Santa is "on the clock" when he's using his iPhone to check in with the head elf; and whether his travel time to and from the North Pole and from house to house is compensable.

In some cases, the law of the North Pole may be more restrictive than the FLSA, and Santa's employer will be required to comply with whichever law is more beneficial to employees. The same is true with state law. For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement.

It doesn't take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season. Even if you're not the North Pole, you don?t want to be on the wage-and-hour naughty list. Much like Santa, costly wage-and-hour lawsuits keep coming to town, so you may want to consider checking with counsel on how best to review and, if necessary, correct your pay practices. Happy holidays!

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Integrity

"If you have integrity, nothing else matters. If you don't have integrity, nothing else matters." ~ Alan Simpson

Illegal Interview Questions

Frequently, I hear from clients on the topic of interviewing. Specifically, what can be asked and what can't be asked of an applicant. As much as you may want to know if an applicant has children, and thus there is an allegedly higher possibility of missing work when the kids are sick, or if she owns her home, which means that she's not very likely to move away, you cannot ask these questions.
Here are a few others to avoid:

• Are you married?
• What does your spouse do for a living?
• Do you have plans to get pregnant in the future?
• Have you ever taken a leave of absence from a job?
• Do you go to church?
• Will you have to hire a babysitter if you get this job?
• From what country does your family originate?
• What year did you graduate from school?
• How will you get yourself to work?

Some other guidelines:

If the job requires occasional overtime, you may ask the applicant if he is available and how much advance notice he needs to work extra hours.

It's permissible to ask him if he speaks a foreign language, as long as you do not inquire if he is a native speaker.

If the job involves overnight travel, you may ask the candidate if she is able to leave town and again, how much notice she will need.

You may ask an applicant if she owns a car and has insurance only if driving her own vehicle while on company time is part of the job. Otherwise, questions about transportation are limited to asking if she has reliable transportation to get to work. If she considers the bus, her bicycle, or a neighbor willing to give her a ride to work reliable transportation, then this is reliable transportation.

Additionally, you may not ask an applicant if he has a disability. You may (and should) ask if he is able to perform the job — every applicant should be asked this. For example, you could say, “This job requires you to stand on your feet and walk without assistance for two hours before taking a break. Are you able to do this?”

During an interview, a job seeker may voluntarily bring up something that falls under the category of questions that you should not ask. When this happens, change the subject quickly and do not write the information down in your interview notes. This is for your own protection.  If, at a later date, someone accuses you of not hiring them because they have four children, and your interview notes indicate that they have four kids, you may have a hard time proving your contrary argument if the candidate otherwise meets the criteria for the job.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

"Character is much easier kept than recovered." ~ Thomas Paine

Survey Says: Being Facebook Friends With The Boss Can Be A Challenge

Republishing an interesting article on social media issues from The Huffington Post | By Rieva Lesonsky

Should bosses and employees be friends on Facebook? With rules about personal and professional behavior blurring, it's a bit surprising that only 21 percent of respondents in a recent Russell Herder survey said they are Facebook friends with their work supervisors, compared to 74 percent who aren’t.

Less surprising, however, is that younger workers aged 18-34 are more likely (26 percent) to be Facebook friends with the boss, compared to just 10 percent of those 35 or older. And while 44 percent of Facebook users age 55 and up think it's inappropriate to friend the boss, only 28 percent of those 18-34 agree.

Who started the relationship? Forty-six percent of those who are Facebook friends with their bosses initiated the friendship, while 38 percent say their bosses did. And here's where it gets awkward: 29 percent felt "pressured" to accept the boss's invitation.

Why it matters to your business: According to the survey, men are more likely than women to consider the Facebook relationship a "professional" as opposed to personal one. And what about legal issues? Could Facebook friendships between your employees expose you to sexual harassment charges? If you're at all worried about this, consider easing the awkwardness by creating a company Facebook page. That way, your employees can connect without feeling personally pressured.

Retaining Employees: 5 Things You Need To Know

Republishing an interesting article on employee retention from The Huffington Post Geoff Williams

Even when the economy is tough -- and maybe especially then -- it's never a bad idea to show your employees appreciation. You may have a few knuckleheads you wouldn't be sorry to see go, were they to walk out, but the last thing you need is your best employees to leave you high and dry.

And they will, if you take them for granted. After all, especially in a world in which retiring with a gold watch is increasingly a fantasy, why should talented employees stick around if they aren't being treated like a best employee should be? It can obviously cost thousands of dollars to train a new employee, depending on the position, especially taking into account all the money a company can lose when its talent isn't around to land new accounts, maintain quality control and provide superior customer service. (There are a lot of employee turnover calculators online to prove this point, like this one. So if you want to keep your employees happy, in both good and bad times, here are five things you need to know.

1. Challenge your employees.

You don't want to overwhelm them, but you shouldn't bore them either. Adam Neary, CEO of Profitably.com, a website that helps businesses better plan, manage and execute their finances, says, "I believe people do their best when the work they are doing is right in the arc between where they're coming from and where they want to go." Neary clarifies: "Look at Jason Putorti, the lead designer from Mint. He was a hurricane of awesome and had no interest in leaving while they were in the throes of it all. It had to do with stretching him from where he was coming from as an agency guy and an independent designer into actually owning a brand and a visual aesthetic. It was a growth role for him, but not unreachable. And it led to him being able to take a role like 'Designer in Residence' at Bessemer and then a co-founder of Votizen. If, however, you wanted to get Jason to be your designer and play the role he played at Mint after Mint, it wouldn't make sense. And even if you convinced him short term, you'd lose him."

2. Pay your employees.

If at all possible, "pay them more than they think they are worth," suggests Gerry Patnode, assistant professor of management and marketing at York College of Pennsylvania and a former business owner for 23 years.

But if you can't pay a high salary, keep in mind, says Chip Manning, director of the Babson Center for Global Commerce, that "benefits, such as family time and flexible work schedules, can have more value to the employee rather than additional cash." Pay your employees compliments. True, if all you are is complimentary, that won't go too far forever, but it is important. The key here is respect, says Manning. Respect can be shown via money, valuing an employee's time and simply making it clear that you value your staff by, yes, complimenting them for their hard work. Or show them that you realize there's more to them than their job. The SuperGroup, based in Atlanta, is a small, digital interactive shop, that boasts high employee retention, probably due to a program which allows significant personal use on company time to be spent doing anything creative, like penning a novel or screenplay, learning to paint or taking music lessons.

This should be obvious, but if it was, we wouldn't have books out there like "My Way or the Highway: The Micromanagement Survival Guide" by Harry Chambers or "Creating Passion-Driven Teams: How to Stop Micromanaging and Motivate People to Top Performance" by Dan Bobinski. Remember, if you hired employees because they're talented, creative and have a unique set of skills and intelligence, if you constrain them too much and make them do their work exactly like you would do it if you were in their position, you risk losing the very qualities that you hired them for in the first place.

4. Make the work environment as work-friendly as possible.

It's not all about the employees, exactly. Look in the mirror and at your environment. Money is an important motivator, but so is going into a workspace that lacks office politics and general tension. Is the office everyone works in kind of a dump? How is the heating and cooling system in your office, store or building? Would you work here if you were an employee of yours? All important questions to ask.

5. Employees need to get something out of their job.

If you aren't giving or can't give your employees some sort of ownership in the company -- whether stock, or bonuses when the company is doing better -- you need to, at the bare minimum, offer your employees as much career growth as possible. Employees know that, any day, theoretically, no matter how good of a job they're doing, they could be kicked to the curb. Understanding that tends to make employees very acutely tuned in to improving their hireability. Employees tend to want to know that if that day comes and their services aren't needed any longer, they're still going to be in demand because they've been working with the most cutting-edge equipment in the industry or taking yearly seminars. It may seem counterproductive to help prepare an employee for a better job, but the more you help an employee grow and evolve so they can get a better job, the better the odds that they're going to realize that the better job is the one they have.

Employee's LinkedIn Recommendation May Put Employer At Risk

Many of us send and receive recommendations on social media sites, such as LinkedIn, from co-workers, vendors, and clients about our work performance or services. Recently, employers have realized that these may be inconsistent with the employer’s policies on neutral references. Worse yet, these recommentdation may even be providing false or fraudulent information. Employers need to take a hard look at their employees’ recommendations on social media.

Employers have long realized that providing negative references for former employees can create liability for defamation. As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct. As a result, many employers today simply provide neutral references for all former employees (name, former job title, salary, and dates of employment) and they have implemented policies requiring their employees not to make recommendations at all.

Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers. Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving.

To avoid these and other similar issues, employers should consider taking several steps. Most importantly, employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites. Depending upon the circumstances, barring employees from making such references may be appropriate. However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media. Under these circumstances then an employer may require instead that employees request authorization from their human resources department or a designated individual such as the Controller or CFO before making references or recommendations.

Simply amending social media and references policies and procedures, however, may be insufficient. Employers need to be vigilant and proactive. Appointing suitable personnel and, if possible, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider. Of course, this must be done in a manner that respects the off-duty rights and protected concerted activities of the employee. See March and November 2011 posts regarding Facebook & the NLRB.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

The Latest Installment In The Facebook Series

Earlier this year, I posted about an NLRB settlement involving an employee who had called her boss a “scumbag” on Facebook. Her employer had fired her relying upon its policy prohibiting employees from disparaging the company online without permission. The NLRB sought to protect the employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that the employee’s termination was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.

A New York Appeals Court recently ruled that there are limits on how much proof of employee dishonesty can be discovered through Facebook. In a personal injury suit, the employer, Turner Construction Co. was attempting to use information from the employee’s Facebook account to show that he was not being truthful about the extent of his injuries. In this decision, the court held that the employer could not have access to everything in the employee’s Facebook account was not sufficiently specific. The decision stated that the employer could only peruse Facebook activities that are relevant in that the information contradicts or conflicts with the plaintiff’s alleged restrictions, disabilities, losses and other claims. That judgment includes activities that are set to private or offer only restricted access to outsiders, aka non-Facebook friends of the plaintiff.

Though this is an incongruent ruling as compared to previous decisions, it is clear that postings on social media have wide implications. Specifically, these cases highlight the growing trend of social media use in civil suits, with some courts granting increasing access to what was once considered off limits because of the employee’s site privacy settings.

The courts are essentially saying that the employer can have access to information in those accounts but only use it in trial insofar as the content contradicts a plaintiff’s allegations.

The constant in all of these cases is that Facebook and other social media sites will continue to be targeted by lawyers reaching to find information helpful to their clients. And now, even password protected information may be open game.

So why is all of this important even here in on the West Coast? Simply put, civil law is established by court precedence, that is court decisions like those above. This means that the likelehood of a local court relying on a decision in a distant state is high. So even those rulings have the ability to eventually effect how you do business.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

"I never had a policy; I have just tried to do my very best each and every day." ~ Abraham Lincoln

"Character is higher than intellect." ~ Ralph Waldo Emerson

The Wage Game

I confess to being a fan of the old sitcom Roseanne. One of my favorite episodes involves her approach to paying the family’s bills. She sends the water company a check made out to the electric company and vice versa. She sends in a check to the landlord but “forgets” to sign it. She sends the phone bill without a check in it but doesn’t seal it, so they will think it just fell out. You get the idea. ”This will buy us another month,” she tells Dan, her husband.
Of late, and often out of necessity, many small businesses are playing a similar game. Their own clients are behind in paying and so they themselves can pay only the most immediate bills. There are obvious risks here but many businesses are unaware of how perilous this sitution can be if the invoices that go unpaid are employee wages or benefits.

Last week, I had a call from a law school classmate whose corporate client was being sued by two employees who had allegedly agreed to work for free for some undefined period of time until the company’s clients paid their invoices. Nothing was in writing, just a conference room agreement. Employment law is not my colleague’s forte and he wanted me to clarify his reading of the statute. Unfortunately, he understood it all too well.

Washington State has a statute, RCW 49.52, focused on the “willful withholding of wages.” It entitles any employee to double damages plus attorney fees when his employer “willfully” withholds any portion of his wages. The presumption is that such witholding is always willful and “willful” is defined as “knowing and intentional, … neither accidental nor as a result of bona fide dispute.” Double damages and fees may only be avoided where lack of payment was due to carelessness (rather than being volitional), or where a “bona fide” dispute existed regarding the payment of wages. Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 160-61 (1998).

Financial inability to pay is also insufficient to prevent a finding of willfulness and avoid double damages. Id.

Further, company officers and senior managers can be held personally liable for these sums if the company’s coffers are empty. The statute specifically includes “[a]ny employer and any officer, vice principal or agent of any employer who shall violate any of the provisions” of RCW 49.52.
Even bankruptcy won’t save you. In 2009, the Washington State Supreme Court held that corporate officers and senior managers (eg., the CEO and the CFO) continue to face personal liability for unpaid wages, even when the corporation is liquidated in bankruptcy court. The Court reasoned that prior to bankruptcy, the officers controlled the payment of wages. Thus, it was appropriate for them to be personally liable. Further, because the officers controlled how the corporation’s money was used, and made such decisions as whether to file for bankruptcy or close the business and pay debts, the Court held that the choice not to pay wages was willful and intentional. See Morgan v. Kingen, 166 Wash.2d 526, 535 (2009).

Can Employers, Officers and Senior Managers Do Anything to Protect Against Liability for Unpaid Wages, Penalties and Fees?

So, when things are so bad that the company doors will close unless employees forego some or all of their salary, how does an employer handle the situation? Well, the statute does allow for “authorized withholding” such that an employer can “withhold or divert any portion of an employee’s wages when … [the] deduction has been expressly authorized in writing in advance by the employee for a lawful purpose accruing to the benefit of such employee … [as long as the] employer derives no financial benefit from such deduction and the same is openly, clearly and in due course recorded in the employer’s books.” RCW 49.52.060.

My suggestion is that the writing be as specific as possible and that a new agreement be entered into for every pay period in which the employer is asking the employee to agree to the withholding. Further, I find that there is a great deal of good will incurred when there is full disclosure to the employees and when the senior officers and managers themselves are also entering into such an agreement with the company. Nothing goes over more poorly than when the sacrificing employees find out the company president is still buying a new yacht with his annual bonus.

Some additional thoughts:

1. Train those responsible for payroll functions to make sure that paychecks are timely issued, particularly when an employee is resigning or being terminated, or when the company is downsizing.
2. Adopt a policy requiring employees to promptly report any problems with paychecks.
3. Unless a bona fide dispute exists over the payment, promptly correct any payroll problems by paying the employee to avoid liability for penalties and attorney’s fees. (As an aside, the bona fide dispute agrument is limited and usually only successful with discretionary bonuses or commissions or the like.)
4. Carefully evaluate whether the company’s current insurance policies would provide a defense if the company or its officers and managers were sued for failure to timely pay wages. If the company has no coverage, consider whether to purchase such coverage.
5. If the company is having financial difficulties, consider whether the company’s governing documents (such as articles or bylaws) address whether the company is responsible for defending and indemnifying managers who are sued personally for failing to pay wages.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Disabled or Not Disabled: That Is The Question...

When the ADAAA (Americans with Disabilities Amendments Act) went into effect January 1, 2009, the Equal Employment Opportunity Commission (EEOC) was directed to amend the ADA’s implementing regulations to reflect the changes of the new law. On March 25, 2011, those Final Regulations went into effect, changing the focus for employers and accommodations for employees with disabilities.

Perhaps the largest impact of the new law will be that the issue of whether an individual has a “disability” is likely an analysis of the past. The Final Regs make it clear that the focus must shift to whether there has actually been a violation of the ADAAA, rather than whether an individual is merely protected by the ADAAA.

My clients are inquiring about other aspects of the ADAAA and the New Regs as well. Here are some of the more common inquiries:

Q: We have a small company. Are we required to comply with the ADAAA?

A: Like the ADA, the ADAAA and the Final Regs apply to all private companies with 15 or more employees. It is important to note, however, that state statutes protecting individuals with disabilities may apply to companies with as few as one employee and are often interpreted in much the same way as their federal counterpart. So, for example, under the Washington Law Against Discrimination, the employer need only employ 8 individuals and, if the situation involves a termination related to a disability, state common law basically removes the WLAD from the analysis.

Q: How does the ADAAA affect courts’ and the EEOC’s interpretations of the ADA?
A: When Congress enacted the ADAAA, it rejected both the EEOC’s and many courts’ narrow interpretations of the term “disability.” Under the Final Regulations, individuals who wish to seek the law’s protection will be able to much more easily demonstrate that they have a “disability.” As a result, the EEOC anticipates that the focus of ADA claims will shift to the merits of the case itself, rather than an analysis of the threshold question of whether a particular individual can satisfy the definition of the term “disability.” Thia is a huge shift in how employers should approach disability accommodations.

Q: How is “disability” defined under the Final Regulations?

A: The ADAAA and the Final Regs define “disability” as follows:
1. A physical or mental impairment that “substantially limits” one or more major life activities (i.e., an “actual” disability), or
2. A record of a physical or mental impairment that “substantially limited” a major life activity (i.e., a “record of” a disability), or 3. When an individual is subjected to an employment action prohibited by the ADA because of an actual or perceived impairment, regardless of whether that impairment “substantially limits” a major life activity (i.e., “regarded as” having a disability).

Q: How do the Final Regs define “major life activities”?
A: The ADAAA includes a specific (but non-exhaustive) list of “major life activities,” including seeing, hearing, eating, sleeping, walking, standing, sitting, breathing, learning and reading, as well as “major bodily functions.” The EEOC’s Final Regs go even further, including a non-exhaustive list that is more expansive than that found in the text of the ADAAA, including sitting, reaching, interacting with others and “operation of an individual organ within a body system.”

Q: Do the Final Regs offer any guidance regarding what it means for an impairment to “substantially limit” a major life activity?

A: Just as the ADAAA expanded the definition of “major life activities,” it also expanded the definition of “substantially limits.” The Final Regs set forth “rules of construction” to be applied when determining whether an impairment “substantially limits” a major life activity, including the following:
1. The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts.
2. An impairment does not need to prevent or significantly restrict a major life activity to be considered “substantially limiting.” However, not every impairment will constitute a “disability.”
3. The term “substantially limits” should be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
4. The determination of whether an impairment “substantially limits” a major life activity requires an individualized assessment, just as it did under the ADA.
5. With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment “substantially limits” a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, hearing aids and prosthetic limbs.
6. An impairment that is episodic (such as epilepsy, hypertension, asthma, diabetes or major depressive disorder) or in remission is a “disability” if it would “substantially limit” a major life activity when active.
7. In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of whether an individual has a “disability” should not require extensive analysis.

With these changes in mind, employers should shift their focus to the following main considerations:

1. Engaging in an interactive process with an individual who asks for reasonable accommodation,
2. Documenting the interactive process, all accommodations requested and made, and any assessment that the accommodation requested by the individual poses an undue hardship, and
3. Documenting legitimate, non-discriminatory reasons for adverse actions in employment (e.g., terminations and demotions).

 

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

What Not To Do In A Performance Review: The Rules

I “coffee shop” commute from time to time. This morning, I had the unfortunate opportunity to overhear a disciplinary discussion at a table less than 2 feet from me. I could not not listen. At first I just thought it rude that the manager didn’t give her junior an opportunity to get a latte first since she herself was drinking one. But as the conversation went on, I became more and more appalled by what I was hearing. I listened to a manager chew out an employee in a public place, with emphatic hand gestures and all, for close to an hour. So, instead of working on a project at hand, I thought it an opportune moment to blog on what I call The Rules of how not to have a disciplinary discussion.

Rule #1. First among my guidance to clients on performance and disciplinary conversations is to do it in a non-public place where the conversation will be undisturbed and the recipient will not be embarrassed by the lack of privacy. Seems like common sense to me but here I am listening to this conversation so clearly it’s not. Additionally, these two I am hearing must work for a nearby business so the odds of a co-worker coming in and seeing this are high.

Rule #2. STEEL yourself. This applies to planned and unplanned performance management conversations. STEEL stands for: Specific, Timely, Explain, Empathy and Listen.

Your discussion should include specific exmaples of objective facts, not just conclusions. Telling an employee that you do not like their attitude is not nearly as effective as telling them that you consider a particular comment or action to be unprofessional. Additionally, focus your comments on performance or conduct, not the person.

Have this conversation in a timely manner. Addressing performance issues quickly, both good and bad, has the most potential to correct or encourage a situation. I once won a major summary judgment for a client. The client was ecstatic and sent me flowers and a gift card. My supervising attorney said nothing… until performance review time three months later. It was listed among my accomplishments for the year. His office was right next to mine. He knew about the win and saw the flowers. What would it have hurt if he had stuck his head into my office and said, “Congratulations. Great job.” Instead, a decade later, the issue still sticks in my craw.

Next, be certain to explain to the employee your specific expectations. Vague statements like, “You need to improve your sales” are not as powerful as “I want to see you get these numbers up by 10 percent this quarter.” Have a positive plan formulated, including corrective action to enhance performance.

Have some empathy. Remember that the person you are speeaking with is, hopefully, trying to meet your expectations. Don’t paint them into a corner by telling them their performance in the worst you’ve seen in 15 years.

And, finally, listen. The truth is that people often have legitimate explanations for the reason they are doing what they’re doing. Sometimes, their reason may even trump your discipline. Given an opportunity, in a performance discussion about attendance, an employee with a disability will reveal their situation. This is a good thing. You need to take that fact into consideration. An employee who leaves the warehouse floor may have done so because he had been made aware of a potential safety hazard in the backroom. Again, this is the kind of employee who needs to be heard, not simply disciplined.

Rule #3. In a planned evaluation discussion, I advise preparing a written evaluation in advance of the conversation. Provide the employee with a copy. Select a time (and a place!) where you will not be interrupted. Ensure that not all of your evaluations are the same! If every employee receives an evaluation of “exceeding expectations” then that rating obviously carries no weight. Finally, if you anticipate any problems with how the discussion will transpire, review the issues is advance with your Human Resources professional.

Rule #4. Avoid the Halo Effect. Do not let your positive feedback in one area of performance effect your evaluation of another area. The salesperson with high production but rotten interpersonal skills still needs to be advised on improving her people skills. Expect the whole package from your employees in every evaluation and tell them you do.

Rule #5. Avoid the Horn Effect. Do not let your negative opinion of one area impact your review of the other areas of performance. An employee with great leadership skills and a notable devotion to their work should have that acknowledged and not hear only about their marketing failures.

Rule #6. Don’t let the employee’s length of performance impact their evaluation. Just because they have been an employee for ten years and have “always done it this way” does not mean it is something that should be tolerated. Likewise, if an employee is a new employee, do not let issues go unaddressed until the next review. By then, the employee will only have built up another year of bad habits.

Rule #7. Anticipate responses to your evaluation. Why am I just hearing about this now? Amy got a second chance, why not me? Is this because I complained? Can I appeal this? Is my job on the line? These are all legitimate questions. Think through the answers in advance of the conversation. And if you do not know the answer, talk to your HR professional. In particular, prepare yourself for the comparator question: what about Amy? In the conversation this morning, the manager told the employee that another employee was not going to be written up for her conduct. I’d have advised her to instead tell the employee that Amy’s situation is separate from her own and that she was not there to discuss Amy’s performance with her.

These are basics. When I provide performance management training, I go into more detail and provide more examples. It’s important to remember that performance reviews are emotional, especially when they are negative. This makes them fodder for lawsuits. A poorly handled disciplinary discussion (in, for example, a local coffee shop) is humiliating. Juries do not like it when employees are humiliated, whether their performance is up to par or not.