Friday, September 19, 2014

Remember that Job You Had 11 Years Ago? Well Good News!

In 2003, CNN replaced its unionized subcontracor with a non-union labor force. Well, the NLRB ruled in part that CNN was a joint employer, violated the NLRA by failing to bargain over this reshuffling, and acted with anti-union animus. More importantly (to CNN at least), the NLRB ordered CNN to hire a couple hundred of the union members to their old positions (or substantially equivalent positions).

Now, you may be wondering - when did this NLRB decision come out? 2004? 2005? Ummm, try Monday of this week. You can read the decision here.

This just goes to prove the old saying, "the wheels of justice grind slow." Don't be surprised if CNN pursues further appeal of this and it drags on still further.

Wednesday, September 17, 2014

The Awesomely Bad/Awesome Employment Law Blog Carnival

My turn to host the Employment law Blog Carnival again! Or, #ELBC as the hip kids with their hashtags call it. Last time, I did a Saved by the Bell theme - SBTB is a show that is awesomely awesome, but to my dismay is sometimes labelled awesomely bad.

This time around, I play judge and jury as we tour pop culture past and present, including some guilty and some not-so-guilty, pleasures as I declare - Awesomely Bad? Or Awesomely Awesome? Feel free to play along in the comments!

Jon Hyman at Ohio Employer's Law Blog schools us on the difference between alcoholism and drunk under the ADA - about a guy who cracked a bottle of whiskey and downed the whole thing over lunch. Crack a Bottle seems apt. VERDICT: Eminem, 50 Cent, and Dr. Dre? This should be awesomely awesome . . . except it's not. It's catchy, but corny. Awesomely Bad.

Ari Rosenstein at Small Biz HR Blog has the scoop on California's new mandatory sick leave law. I haven't been in high school since... well, it's been a while. But when I think of sick leave, my mind still jumps straight to Ferris Buehller's Day Off. VERDICT: C'mon, is this even a question? Ferris Bueller is definitely Awesomely SUPER-Awesome.

Bob Fitzpatrick hits us with FLSA Pleading - Your Way, My Way and the "Middle" Way. Sure, I could go classic with Sinatra's My Way - but for our purposes, let's go with Lenny Kravitz and Are You Gonna Go My Way. I play guitar (albeit badly), so I'll give him credit for an awesomely awesome guitar riff, but . . . VERDICT: Sorry Lenny, the song gets old quick: Awesomely Bad.

Dan Schwartz of Connecticut Employment Law Blog coaches us on the risks of fantasy football at work. There's certainly no shortage of football and pop culture tie-ins, but let's go with The Waterboy. VERDICT: Full disclosure, I spent several years of my life with more than one Adam Sandler poster on my wall. That said, Waterboy was a little too stupid, even by Sandler's standards - Awesomely Bad (probably no shortage of people arguing it's just plain bad).

Donna Ballman of Screw You Guys, I'm Going Home, examines some state-by-state laws in Crackdown on Misclassification. Crackdown? Sounds like it's a shakedown . . . breakdown . . . you're busted. Don't pretend like you don't know that song from Beverly Hills Cop II. Verdict: BHC 1? Totally awesome. BHC 2 and that song? Fun, but awesomely bad.

From Randy Enochs at Wisconsin Employment and Labor law Blog, Seventh Circuit holds that an FMLA plaintiff does not need to call an expert witness to establish a serious health condition. Am I really gonna play off of "call" to jump straight to Ghostbusters (who you gonna call?)? I just did. VERDICT: Awesomely awesome! An all-time classic. Ghostbusters 2? Well, that's a little more awesomely bad . . . or just bad.

Lorene Schaefer at Win-Win HR has millenials battling harassment in social media. Millenials are the all-time rulers of awesomely bad! Sure, my generation had Backstreet Boys, and before that New Kids on the Block. But now? Bieber? Miley? Nicki Minaj? VERDICT: Millenial music is awesomely Bad Bad Bad.

Lindsay Bouffard at Employment Essentials shares a post on micro-bargaining units. I'm probably testing your collective memories here . . . but remember the fast-talking MicroMachines Man? VERDICT: As a kid, I loved that guy! As an adult? I *still* love that guy! Awesomely awesome!

The founder of ELBC, Eric Meyer of The Employer Handbook, has How to curse out your boss on Facebook . . . and get away with it! Flagrantly calling out management and getting away with it? C'mon, you know where this is going: Office Space! And you know the VERDICT has got to be Awesomely one-of-the-greatest-movies-of-all-time Awesome!

Michael Haberman at Omega HR Solutions asks, Is judging someone's grammar a good hiring test? Thanks to Weird Al Yankovic, a grammar and pop culture tie-in is an easy one: Word Crimes. VERDICT: From old school, like Eat It and Amish Paradise to new school Word Crimes - Weird Al can do no wrong in my book. Awesomely Awesome.

Sharlyn Lauby at HR Bartender has Why Job References are Important? featuring a picture of a movie marquee for "Fear Theater." No horror franchise has spanned more time and pop culture than Friday the 13th. VERDICT: Maybe . . . MAYBE . . . you can make a case for Part I being awesomely awesome. But c'mon, these movies take campy to a whole new level. Awesomely bad.

Doug Hass at Wage and Hour Insights shares The "Winner" and other losers: What winning that wage and hour suit might get you. What can I say? I went to high school in the 90s. I hear "loser" and Beck is stuck in my head all day. VERDICT: I prefer Where It's At . . . but Loser is still Awesomely Awesome in my book (get crazy with the Cheez Whiz).

Janette Levey Frisch, The Employerologist,has Sexual Harassment Complaints Don’t Go Away When You Ignore Them–Ask Wal-Mart! You know who doesn't go away when you ignore him? Bob. As in What About Bob? VERDICT: A little corny? Sure. But Bill Murray can do no wrong - this movie is Awesomely Awesome.

John Holmquist at Michigan Employment Law Connection has Loyalty: Extinct Under the NLRA? If it is extinct, I hope they saved its DNA so one day we can clone it and make a loyalty-themed amusement park . . . just like, Jurassic Park! VERDICT: I'll probably catch some flack for this - but Jurassic Park was Awesomely Bad in my book. It felt a little too much like "look! There are dinosaurs on the screen!" without enough actual plot.

We had a few classification posts. Like Stuart Rudner of Rudner MacDonald with Calling an employee an “independent contractor” exposes both parties to liability, and Monique Warren of Benefits Law Advisor on Afffordable Care Act classification issues - How can I finish this post without working in the scene from Clerks where they discuss the independent contractors on the Death Star in Return of the Jedi? VERDICT on Clerks: Production level low, but awesome level high - Awesomely Awesome.

Jackson Lewis warns retailers to be ready when OSHA walks into a store or warehouse. After all these years, I still associate warehouses with Raiders of the Lost Ark. VERDICT: I'm not sure that movie is as awesome as I thought it was when I was a kid - but it's still a classic. Awesomely awesome.

Last but not least - Joseph Lazzarotti at Benefits Law Advisor has Look Beyond the ACA Wellness Regulations When Designing Your Program, EEOC Sues Employer Over Its Program. You know who looks like she could use a wellness program? Big Momma from Big Momma's House - but looks can be deceiving (spoiler alert: it's Martin Lawrence in disguise).VERDICT: Not gonna lie - I've never seen it. I still feel pretty safe calling it Awesomely Bad.

Disagree? Drop a comment!

Note: I tried to include all submissions - if you submitted something and do not see it here, let me know.

Monday, September 15, 2014

Fired for What!? - Judge Loses Job Over Social Media Posts

Eaux Neaux! Say it ain't seaux, judge! The top Arkansas court recently dismissed a trial court judge for inappropriate comments on social media. The judge, who went by the name geauxjudge (oh, now the first two sentences make sense) made a number of colorful posts online.

Above the Law has some of the dirt here. It's probably not a good idea for a judge to offer to be Charlize Theron's "baby daddy" and comment on her appearance at a court hearing - that goes double (probably more like 1000x) if you are the actual judge presiding over the closed adoption hearing in question.

How can women maintain a successful marriage? Well, the good judge has some tips on that as well:
Men have two needs. Feed me and f*<k me. Take care of both we will be good. Whichever one you don't then the man will find.
He sounds like quite the charmer.

Ordinarily I'd launch into some kind of sermon about the Internet not being as anonymous as you think - but this guy barely even tried. I mean, he has "judge" in his handle, and commented on his own cases. It probably wasn't that hard to put 2 and 2 together.

Monday, September 8, 2014

NFL Oakland Raiders Settle Cheerleader Lawsuit

Football season is back! Penn State is 2-0, the Steelers are 1-0 and all is right with the world. The Raiders on the other hand . . . well, things haven't been going so well for them. On the field, they're 0-1 and struggled offensively. Only one game in and I've already placed them on McGloin-watch.

Off the field, the Raiders have struggled with a wage and hour lawsuit filed by the Raiderette Cheerleaders. The good news for the Raiders is that they settled the lawsuit. The bad news? It reportedly cost them $1.25 million.

Per the LA Times, the settlement also included some prospective relief:
Instead of earning only $125 per game in a single paycheck delivered at the end of the season, Raiderettes will earn $9 an hour from now on, plus overtime, for the estimated 350 hours each cheerleader puts in each year, including rehearsals, practices and mandatory community and charity appearances. Their annual compensation will rise from about $1,250 to about $3,200. 
From now on, Raiderettes will also be reimbursed for business expenses and mileage, which they had to cover themselves before. They will also receive paychecks every two weeks, per state law, rather than one lump sum at season’s end. 
And the team will no longer illegally deduct wages for minor rules infractions like showing up a few minute late to rehearsals, wearing the wrong color nail polish or failing to bring the correct pom poms to practice. Cheerleaders will also be entitled to a 10-minute break during games.
A few other NFL-cheerleader-related lawsuits remain. We'll see if they play out in court or if the franchises (or perhaps even the NFL itself) work out a settlement agreement.

For employers, this case provides a lesson: Check with an employment law attorney before deciding to not pay people who are providing services, or only paying a lump sum that doesn't even amount to minimum wage, or making deductions from paychecks. This is a tricky area of the law, and professional counsel can help.

That said, the law is often not clear and employers may have to decide for themselves whether to take on the risk associated with that uncertainty. There are generally cost benefits to treating workers as independent contractors or exempt under wag-and-hour laws - this lawsuit is a reminder of the risk involved.

Image: Raiders logo used in commentary on Oakland Raiders. Not authorized use.

Friday, September 5, 2014

3d Circuit on FLSA Pleading Requirements

Wage and hour plaintiffs often have a tough time pleading with specificity. They know that their employer makes them take calls on their lunch break, or will call them back to work without punching in, or the time clock automatically deducts a set amount of time even when a break was not as long as the automatic deduction - but the employees often don't track exact dates and times.

In Davis v. Abington Mem. Hosp. (precedential opinion here), the Third Circuit addressed the level of specificity required in a complaint. Allegations that an employee "typically" worked a 40-hour week and "frequently" worked hours outside of her shift or during meal breaks, standing alone, are not enough to state an overtime claim. The employee must specify that she worked 40 hours in a week, and then worked extra hours beyond 40 in that week.

Even with this requirement, the pleading standard is hardly demanding:
[W]e do not hold that a plaintiff must identify the exact dates and times that she worked overtime. For instance, a plaintiff’s claim that she “typically” worked forty hours per week, worked extra hours during such a forty-hour week, and was not compensated for extra hours beyond forty hours he or she worked during one or more of those forty-hour weeks, would suffice.
The Third Circuit noted that this issue has "divided courts around the country." So if you're outside of the Third Circuit, check for local precedent on this issue.

Thursday, September 4, 2014

6th Cir. to Take Another Swing at Telecommuting Reasonable Accommodation Case

A few months ago, I wrote an entry titled Is Telecommuting a Reasonable Accommodation? The post was inspired by a then-recent 6th Circuit decision that telecommuting may be a reasonable accommodation under the ADA.

I don't think holding that telecommuting may be a reasonable accommodation in some circumstances was really anything new - but the 6th Circuit seemed to back away from earlier decisions that presumed telecommuting was not a reasonable accommodation particularly where attendance (or "face time") was a part of the job (essentially, putting a thumb on the scale). Well, now the 6th Circuit has agreed to rehear this case en banc (HT: Robin Shea).

I'm guessing the full court has decided to rehear the case to re-implement the presumption against telecommuting as a reasonable accommodation. I guess we'll have to wait and see though.

Wednesday, September 3, 2014

Casino or Employee? Who Owns the Book of Elite Players?

The Baltimore Sun has an interesting story on an "alleged high-roller theft case." A casino host resigned from her job and took a new job . . . with a competing casino. 

While she was at the first casino, she accumulated a list of "elite players" as part of her job. When she went to the new casino, she contacted those high stakes players to try to get them to come to the new casino. The first casino is not happy about it.

So, what can employers like the first casino do to protect themselves from things like this? Well, the obvious answer is to put a restriction in writing. According to the article, the employer did present the employee with a noncompete. But, she said she didn't like getting "harassed" to sign it, so she quit. 

Ideally, the employer should have made the noncompete a condition of starting the job. The employee claims she built her book of business on the job - something she could not have done if the casino had simply refused to let her work without first signing the agreement. The noncompete could also include nonsolicitation provisions, and identify the customer list as confidential proprietary information. 

Now, the parties are stuck battling it out in court.