Jon Hyman – Page 2

March 22, 2016July 30, 2018

Is Your Employee Handbook a Contract of Employment? Well, Does it Have a Disclaimer?

Employee handbooks come in all shapes and sizes. For example, some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. Some grant formal appeal rights to employees who are disciplined or terminated. And some set forth terms of compensation, benefits, and time-off.

Is your handbook a contract of employment or a compilation of discretionary policy statements? The answer depends on whether your handbook has a disclaimer telling employees that they are at-will and cannot rely on the handbook as a contract.

In Staschiak v. Certified Logistics, an Ohio appellate court considered whether a commercial truck driver could enforce his former employer’s handbook as a contract of employment as to his terms of compensation. Because the handbook lacked any disclaimer language, the court held that he could.

We recognize that there is case law rejecting an employee handbook as a contract, with several such cases cited by the appellees. In each of these cases, however, there was specific language within the handbook claiming that the handbook was not a contract, and clearly showing no intent to be bound by it.… In the present case, there is no language within the handbook either claiming that it could be changed at the employer’s discretion or that it did not form a contract.

This issue really is as simple as whether your handbook says, or more accurately doesn’t say, that it’s a contract. So, dust off your employee handbooks, flip to either the front or the back, at scan for a policy that looks something like this:

Employees of the Company are not hired for any specific term. Accordingly, their employment relationships with the Company are “at will” relationships. Employment at will means that employees are free to resign from their positions at any time, with or without cause, upon oral or written notice to the Company. Similarly, the Company may end the employment relationship with any employee or change an employee’s status (for example, modify a position, promote or demote an employee, adjust compensation, etc.), with or without cause, for any reason or no reason, subject only to applicable laws (such as the laws against discrimination), upon oral or written notice to the employee. The decision to stay or to leave, whether it is the employee’s decision or the decision of the Company, is in the sole discretion of the party making that decision.

The Company does not intend that anything in this Handbook constitute an employment contract or an offer of an employment contract, express or implied, or that this Handbook be in any way deemed by any person, including the Company or any employee, to create any legally binding rights to continuing employment or to specific terms or conditions of employment.

No persons other than the President of the Company can enter into an agreement for employment for a specified period of time, or make any agreement or representation contrary to this employment at will policy. Further, any such agreement must be in writing and signed by either the President.

Without language like this, you are leaving yourself open to a claim that your handbook is a contract, and a handbook that is a binding contract might be worse than no handbook at all.

March 3, 2016July 26, 2018

Is It Illegal to ‘Right Size’ Employees to Avoid ACA Obligations?

In the past six months, I’ve had more questions from clients about group health insurance than I’ve had in the first 18 years of my practice combined. All of the questions start the same: “Our health insurance premiums are out of control. How do we …?”, finished by some inquiry about moving older workers to Medicare, or shifting high-cost workers to the exchange, or some other machination to avoid the Affordable Care Act.

The reality, however, is that the ACA makes it pretty damn hard to move high-cost employees off of your health insurance to combat out-of-control (and still rising) insurance costs.
Dave & Buster’s thought it had the answer—reducing employees from full-time to part-time. Last month, however, the district court hearing an employee-challenge to this insurance “right sizing” handed round one to the employees.

Before we discuss the case, let’s get out of the way some general Affordable-Care-Act background. The ACA requires employers with 50 or more full-time employees (or full-time equivalents) to offer medical coverage to full-time employees and their dependents. The ACA does not, however, require an employer to offer this coverage to employees working less than 30 hours per week. It also, on its face, does not prohibit an employer from reducing an employee’s hours to escape mandated health insurance.

Dave & Buster’s believed that if it reduced employees’ hours below the 30-hour-per-week threshold, it would be off the hook for employer-sponsored coverage (and the high costs that go along with it).

The employees claim that this reduction-in-hours violates section 510 of ERISA, which prohibits employers from interfering “with the attainment of any right to which such participant may become entitled under the plan.”

In seeking the dismissal of the lawsuit, Dave & Buster’s argued that the employees could not show a specific intent to deny them health insurance, a fact that would doom their 510 claim.

The court disagreed, concluding that the employees alleged enough facts that Dave & Buster’s acted with an “unlawful purpose” for the case to survive the motion to dismiss and proceed to discovery. Specifically, the court relied on two meetings during which managers allegedly explained to employees that the company was cutting their hours to avoid paying millions of dollars for health insurance under the ACA.

What does this case mean? In the grand scheme of things, not much, really. It’s one decision, from one trial court, at the very early stages of one case. Nevertheless, it does ever-so-slightly close one door opened by the ACA to employers fighting the high cost of health insurance.

March 1, 2016July 30, 2018

DOL Looks to Move the Needle on Paid Sick Leave

Last week, the Department of Labor announced proposed regulations that would expand paid sick leave to the employees of federal contractor and subcontractors. These regulations would implement Executive Order 13706, which President Obama announced last year. According to the DOL, these regulations will provide paid sick leave to 828,000 employees.

Given that our country has over 121 million employees, why does it matter than a scant 0.68% of the American workforce has access to federally mandated paid sick leave?

It matters because it moves the needle, even if ever so incrementally. Other companies will begin voluntarily offering paid sick leave as a fringe benefit, if they want to compete in the job market against those offering federally mandated paid leave. As a result, paid sick leave, will starting small through this mandate, eventually will spread to all employers nationwide.

While I am not a fan of government mandates, there is no doubt that, as a country, we are woefully behind the rest of the world on paid time off for employees. These regulations illustrate what can happen when the private sector delays making necessary changes. Because our nation’s businesses are so out of touch on the issue of paid leave, the government has to step in. If you want to stop this tide of government regulation, do the right thing by your workers. It really is just that simple.

February 18, 2016June 19, 2018

Essential Reading: Harvard Business Review’s Step-By-Step Guide to Fire Someone

File this under posts I wish I’d written. On Feb. 17, the Harvard Business Review published A Step-by-Step Guide to Firing Someone.

Firing an employee is the most difficult job any business owner, executive, manager or HR person has to do. I’ve been there. It absolutely sucks. (And it absolutely sucks even more when the fired employee breaks down and starts crying). HBR synthesizes the process in three essential tips to handle the decision, and five (not-so-easy) steps for the termination itself.

When I say that I wish I’d written this post, that’s only partly true. In fact, I wrote part of it many years ago.

The HBR article suggests that before you pull the termination trigger, you run the decision by a hypothetical jury:

To make sure that you’re on solid ground in terminating an employee, imagine yourself defending your action in front of a jury. Assume that you are on the witness stand and the employee’s lawyer is attempting to prove that the firing was unjust, unfair, and vindictive. Look for anything that could be twisted to suggest that the real reason for the termination is not the individual’s performance but rather a pretext or personal grudge. Isn’t that the real reason why you fired poor Smedley on his birthday, on the day before his tenth anniversary with the company, on the day before his pension vested, on the day his wife went into the hospital, on the day his mom died?

I’ve called this mock-jurying the Golden Rule of Employee Relations.

If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee's favor.

If you’re not asking yourself this question before firing someone, you are skipping the most effective risk-management tool available.

February 16, 2016August 3, 2018

Intermittent FMLA Does Not Permit Sleeping on the Job (Usually)

Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?

According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.

On the FMLA retaliation claim, the court concluded that the employer had a legitimate non-discriminatory reason for the termination (sleeping on-the-job), and that there existed no evidence of pretext.

The Sixth Circuit has determined that sleeping on the job is a legitimate, nondiscriminatory basis for termination when the employer has a clearly-established policy.… Although Plaintiff disputes the Hospital’s proffered reason that she intentionally removed herself from her labor patient’s room and went to sleep across the hall, Plaintiff has not put forth evidence which demonstrates that the Hospital did not “honestly believe” the facts before it and the eyewitness accounts of Plaintiff’s co-workers.

On the FMLA interference claim, the court found no evidence that the plaintiff had actually requested FMLA leave after experiencing the onset of a migraine during her shift. Instead, she admitted that she, of her own volition and without telling anyone, went to lay down in a empty room after feeling dizzy.

Furthermore, the evidence shows that the Hospital initiated discussions with Plaintiff about accommodating her health condition; that the Hospital immediately approved Plaintiff’s application for FMLA intermittent leave at her one-year anniversary; and prior to September of 2014, Plaintiff used intermittent FMLA leave without any problems.

While the question this post asks may seem silly, there is a potential pitfall for employers.

If an employee approved for intermittent FMLA asks to lie down because of the FMLA-approved medical condition, or otherwise gives notice of the intent to invoke intermittent FMLA, Lasher suggests that denying the request might very well be FMLA interference. The employee in this case erred by not giving notice of her intent to take FMLA intermittent leave in advance of her nap. So, while you might think that you can fire an employee for sleeping on the job, the FMLA can complicate the issue.

February 5, 2016June 19, 2018

Can an Employer Prohibit an Employee from Job Hunting During FMLA Leave?

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

What an interesting question. I am not aware of any provision in the FMLA that specifically addresses this issue. As Suzanne correctly points out in her post,

FMLA leave itself doesn’t prohibit someone from job hunting. It does prohibit people from doing things that they shouldn’t be able to do, due to the terms of their leave … . [I]nterviewing for a job doesn’t aggravate your shoulder, so it’s not a violation of your leave.

What about the “no job hunting” policy itself? Can an employer prohibit an employee from job hunting while on FMLA?

To me, the legal answer to this question depends on whether this policy applies to any employee who is on a leave of absence, or only employees on FMLA leave. If it’s the latter, then the policy targets singles out employees taking FMLA, and probably interferes with their FMLA rights. If it’s the former, then it’s probably not illegal under the FMLA, it’s just a bad policy.

The practical question, however, is, assuming this policy is legal, who in their right mind would want to work for a company that prohibits current employees from looking for a new job. We no longer have indentured servants, and for good reason. Employees are at-will, meaning they can leave at any time, for any reason. Why would an employee work for a company that would prohibit him or her from leaving for another job.

Consider me puzzled by this policy, and a huge anti-fan of a no-job-hunting policy. Readers, have you ever encountered a policy like this?

February 2, 2016July 30, 2018

It’s Groundhog Day: Here Are the Top 10 Mistakes Employers Keep Repeating

Feb. 2 is Groundhog Day, which, because of the eponymous Bill Murray movie, has become synonymous with repeating the same mistakes over, and over, and over.

In that spirit, I thought we’d take a look at the 10 biggest mistakes that employers keep making.

In no particular order:

January 20, 2016June 19, 2018

Appellate Court Reinstates Sex-Discrimination Claim of Transgendered Worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

Relying on a mixed-motive analysis, the court, in Chavez v. Credit Nation Auto Sales [pdf], concluded that Chavez had presented enough evidence that her gender was a “motivating factor” in the termination decision such that a jury should decide her claim.

What was the evidence on which the court relied?

That the company’s president subjected her performance to more scrutiny and criticism after she announced her gender transition.
Statements by the company’s president that he was “very nervous” about Chavez’s transition, and that he believed it would “negatively impact his business.”
The company’s president telling Chavez “not to wear a dress back and forth to work” because it would be “disruptive”.
Other company officers expressing concern over Chavez’s use of a unisex bathroom.

While this case may look like a run of the mill sex-discrimination case, it is emblematic of a deeper trend. In the coming years, more transgender employees will enter your workplace. You need to be vigilant in not making comments about their appearance, and otherwise not allowing conscious or unconscious biases to pervade your decisions about these employees.

Because more and more courts are accepting transgender-discrimination claims under Title VII’s sex-discrimination prohibitions, and because Title VII permits mixed-motive discrimination claim, these comments or (un)conscious biases could undermine an otherwise legitimate termination, as was the case in Chavez.

January 5, 2016June 19, 2018

Don’t Ignore Reasonable Accommodations in the Application Process

Eliminating barriers in recruitment and hiring is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan. Large national employers provide the EEOC with a soapbox to broadcast this agenda. Thus, a lawsuit filed by the agency against McDonald’s Corp. for its alleged refusal to interview a deaf job applicant is a perfect ADA-storm.

According to the complaint, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant. He indicated on his application that he attended a school for the deaf. When the restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, continuing to interview and hire new workers.

Employers cannot forget or ignore that their obligations under the ADA to provide reasonable accommodations does not just cover employees, but also extends to job applicants. From the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA:

An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.

Per EEOC St. Louis District Director James R. Neely, Jr., “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.” Adds EEOC Regional Attorney Andrea G. Baran, “Providing equal employment opportunities to all job applicants—including those with disabilities—is not just the law, it is good for our economy and our workplaces.” Solid words for employers of all sizes to heed.

December 17, 2015July 30, 2018

What ‘Star Wars’ Teaches Us About Employee Relations

My earliest cinematic memories involve Star Wars.

I don’t really remember seeing A New Hope in the theater (I was only 4 years old), but I know I did. I vividly remember watching The Empire Strikes Back with my dad at the Nashaminy Mall. The theater was packed, we were stuck behind two towering men, and I watched with my head peaking between their seats. That’s where my jaw hit the floor when Vader proclaimed that he was Luke’s father. And, with my fandom at a crescendo, I remember my parents pulling me out of school on opening day of Return of the Jedi so that we could wait in line to ensure our seats.

Thank god for Fandango, because Donovan, with his now one-tracked Star Wars mind, and I can see The Force Awakens without disrupting his schooling. Saturday afternoon, I will experience the pure joy of introducing my son to a new Star Wars movie.

The premier of Episode VII has got me thinking, what can Star Wars teach us about employment law?

Join the rebels and fight the dark side.

What do I mean?

First, join the rebels. Don’t be an HR conformist. Introduce new ideas to your organization. Don’t be a slave to dogma. Sexual orientation discrimiation isn’t yet illegal in your jurisdiction? Prohibit in you workplace anyway.

Move from a fixed paid-time-off system to one of unlimited time off. Embrace telework and flexible work schedules. Let your employees post to Facebook and shop on Amazon.

These ideas are far from new, but they are different enough to set your company apart from your competitors. Each offers a real benefit that will help you attract and retain good employees.

Second, fight the dark side. Employees often view the HR department, and by extension, the employment lawyers that help guide them, as agents of the dark side. We are the agents of “no.” “No, you can’t take that leave.” “No, you are now on a final written warning.” “No, we are going to have to fire you.” It’s often an unenviable and dark position to be in.

Yet, rather than embracing the evilness of no, let’s embrace the possibilities of “maybe.” Instead of defaulting to “no,” instead use the following as your decisional guidepost.

If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer’s favor.

I’ve said this before, but it bears repeating. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee’s favor.

May the force be with you all.