Monthly Archives: August 2012

Beware of Online “Advisors”

With more and more online tools–such as the DOL’s Wage and Hour “elaw Advisors“–designed to help employers comply with federal employment laws, it’s tempting to rely on them for quick answers. But that may turn costly.

The online “advisors” ask simple “yes” or “no” questions to answer, for example, whether certain employees are exempt from the Fair Labor Standards Act’s overtime provisions. The questions, though, can’t always capture the nuances leading to the correct answer. And, with courts constantly ruling on–or outright rejecting–the DOL’s regulations and interpretations, relying solely on these simple tests could wind up with those same employees suing you.

The best way to ensure you comply: consult a qualified attorney who can interpret these complex rules.


Employee Fired for 50-Year-Old Prank

Richard Eggers’ story is making internet rounds as a lesson in unintended consequences.

Wells Fargo fired him from his customer-service job of seven years because of his criminal conviction. The bank cited new Dodd-Frank banking legislation that imposes tougher rules on banks hiring employees with checkered pasts.

His crime: using a cardboard cutout of a dime in a laundromat machine.

The year: 1963.

The bank confirmed his firing. He is seeking a waiver–allowed under the law–to get his job back.

Are Your Interns Really Interns?

Over at Forbes, a useful piece on determining whether your interns are really interns–or whether you need to cough up minimum wage for all of them.

While there’s a six-factor test to determine whether interns are truly interns–and therefore unpaid–the bottom line is this: do you use interns to perform productive work that eliminates the need for regular paid employees? If so, you should be ready to pay the interns as well.

This has become a hot topic recently, so employers need to know ahead of time what to expect, and how to plan accordingly.

Telecommuting as a Reasonable Accommodation

Although federal courts in Virginia typically find an employee’s physical presence at work to be an essential job function under the ADA, there are some instances where it’s not. Enter telecommuting as a reasonable accommodation.

A federal court in Ohio highlighted this recently, ruling that a county must consider telecommuting as a reasonable accommodation on a case-by-case basis. There, an employee suffered from extreme chemical sensitivity, and workplace smells triggered allergic reactions. The county refused to let her work from home. She sued, and the court said the county must at least consider telecommuting as a reasonable accommodation.

That’s not to say telecommuting always is a reasonable accommodation, but it’s something employers should at least consider on a fact-specific basis.

And Now the EEOC?

We reported last week that the National Labor Relations Board struck down an employer’s policy asking employees not to discuss pending investigations. Now, the Equal Employment Opportunity Commission seems to be heading down the same road.

The EEOC’s Buffalo field office recently notified an employer that it “flagrantly” violated Title VII by adopting a policy allowing the employer to discipline employees who discussed ongoing investigations. The letter states:

An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.  In this case, telling the [redacted] women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII.  There does not have to be a separate adverse action.

Importantly, the EEOC contends the employer violated Title VII simply by having the policy, even though it didn’t discipline any employees or take other adverse action.

Proactive employers should review and amend their policies so they don’t unnecessarily restrict employees discussing internal investigations.

Firing Employees on FMLA Leave

You might bring unwanted trouble on yourself, but you can do it.

In a recent example, the Third Circuit Court of Appeals ruled that an employer legally fired an employee who abused her FMLA leave. The employee claimed she couldn’t work at all, but continued working at her part-time job from home while on FMLA leave. After being fired, she claimed her employer interfered with her FMLA rights.

The appeals court ruled in the employer’s favor, finding that the employer terminated her based on its “honest belief” that she misused her FMLA leave. It concluded she was “not entitled to a greater degree of protection…merely because she was on FMLA leave when caught and terminated.”

Basically, you may fire employees out on FMLA leave if you would fire them if they were still at work.

NLRB’s Reach Expanding Yet Again?

The NLRB has been extremely busy lately, dealing with posting of unionization rights, social media policies, at-will employment, and now confidentiality of internal investigations.

In a July ruling, the NLRB held that an employer’s practice of asking employees not to discuss ongoing, internal investigations with other employees violated the National Labor Relations Act. The employer argued it asked employees not to discuss ongoing investigations so it could protect the integrity of the investigation.

The NLRB found that wasn’t enough to infringe on the employees’ rights under the labor-relations law. Instead, the NLRB ruled the employer had to determine whether one of the four following risks existed before asking employees not to discuss an investigation:

  • Witnesses need protection
  • Evidence is in danger of being destroyed
  • Testimony is in danger of being fabricated
  • There is a need to prevent a cover up

Unless employers can specifically identify one of these risks before they begin an investigation, they may be in hot water with the NLRB if they ask employees not to discuss the process.

This continues an unsettling trend for employers of the NLRB expanding its reach well beyond its traditional areas of enforcement.