Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.
Noncompete litigation. Sometimes you win an injunction. Sometimes the court drops a big boulder on your head.
Suppose after leaving your company, an ex-employee begins soliciting his former co-workers to join him at his new venture. That employee had signed the same non-competition agreement as each of your other 13,000 employees, which, among other things, prohibits him from directly or indirectly soliciting, inducing, or encouraging any employee of Manitowoc Company to terminate their employment or to accept employment with a competitor, supplier, or customer.
So, you do what many employers do in this situation. You sue the ex-employee to enforce the agreement.
In The Manitowoc Company v. Lanning [pdf], the Wisconsin Supreme Court dropped the biggest boulder possible. It not only ruled in the employeeâs favor, but it found the agreement to be unreasonably over broad as drafted, and invalidated it as to all of Manitowocâs 13,000 employees.
The plain language of Lanningâs non-solicitation of  employees provision creates a sweeping prohibition that prevents Lanning from encouraging anyManitowoc Company employee, no matter the employeeâs job or location, to terminate his or her employment with Manitowoc Company for any reason, or soliciting any Manitowoc Company employee to take any position with anycompetitor, supplier, or customer of Manitowoc Company.
Lanning does not have specialized knowledge about all of Manitowoc Companyâs 13,000 world-wide employees across both its construction crane and food service equipment divisions. Lanning does not have a relationship with every Manitowoc Company employee. Yet Lanning’s non-solicitation of employees provision prevents him from encouraging any Manitowoc Company employee to terminate his or her employment.
A national company with more than 13,000 employees now has an agreement that it can never enforce against anyone.
What lessons can employers learn from this case? Post-employment covenants are necessary tools that all employers should have in their shed. Employers, however, must use narrowly drafted agreements that only reach those legitimate interests worthy of protection. And, if there is no such interest, consider foregoing an agreement at all. Otherwise, you might end up spending lots of money in court in a vain attempt to enforce an unenforceable contract.
Or, worse yet, a court might just drop that boulder and invalidate that agreement for all of your employees.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Itâs my first blog of 2018, and, boy, are we off to a quick start! Iâve mentioned before my keeping track of the EEOC vs. AARP wellness incentive disagreement, and we got some action on that in late December. Meanwhile, Iâm deep in research about two meaty topics for which Iâd love to gauge your thoughts.
Letâs begin!
Wellness programs took a hit recently when a federal judge ruled that an Equal Employment Opportunity Commission rule regarding incentives will be nullified as of Jan. 1, 2019.
A few different wellness companies told me their reactions to this news, and, to my surprise, not all of it was panic or negative. They were fairly varied.
The rule in question defined the word âvoluntaryâ in relation to wellness programs. The Americans with Disabilities Act and Genetic Information Nondiscrimination Act limit what information employers can ask for from its employees. But in a voluntary wellness program employers can get around some of those limits because the program is voluntary.
The EEOC rule allowed wellness programs to be voluntary if the incentive or penalty was no more than 30 percent of the cost of the health plan. In his initial decision, Judge John D. Bates, Senior United States District Judge of the United States District Court for the District of Columbia, said that the 30 percent incentive âis the equivalent of several monthsâ food for the average family, two months of child care in most states, and roughly two monthsâ rentâ and said that the âfee of that magnitude could be especially coercive to lower-income employees and people with disabilities, who on average have lower incomes than those without disabilities,â according to the LA Times.
Outcomes-based programs are âpretty much dead,â and thatâs a good thing, according to Al Lewis, CEO and co-founder of wellness education company Quizzify. He believes the judge was completely right in this decision.
âThis changes everything. Without financial coercion, most employees arenât interested,â he said in an email interview.
Employers should know that the ruling does not apply to all areas of wellness, just those involving medical exams and inquiries, he added. For example, fitness-based programs are still fine unless the company measures fitness.
Health risk assessments are also impacted, he added, as they would have to avoid medical inquiries. They could ask questions like, âHow much broccoli do you eat?â or, âWould you like to receive information about diabetes?â but not âAre you depressed?â or âDo you have diabetes?â
Many vendors do not have the same celebratory attitude toward this regulation change. The ruling may be missing the boat, according to Henry Albrecht, CEO of engagement company Limeade. What some parties involved in this ruling call âcoercion,â he calls âtrue support for whole-person well-being.â
âUltimately, companies running science-based programs with flexible technology and incentive systems shouldnât lose sleep over the new EEOC changes. Weâre not,â said Albrecht. âPrograms that improve employee well-being arenât going away. Theyâre too powerful because they drive employee performance, engagement, retention and company profit.â
Meanwhile, Lauren Chana, director of legal services at Vitality Group, a Chicago-based wellness company, has a different attitude toward the ruling. Chana, who ensures that the companyâs program and their employer clients are compliant, is not concerned about the ruling, but curious.
âThis opens a lot of doors for questions and uncertainty for employers,â she said. âFor example, this ruling does not impact the ACA. The EEOC Wellness Rules, presumably, were designed to align with the ACA, but that will change. I am most curious to see the approach the EEOC and courts take to make this a practical rule moving forward.â
She also stressed that this does not have a big impact employers yet. The new rules donât go into effect until Jan. 1, 2019, and âwe havenât a clue what the compliance date will be from there,â she said.
âWith any new area, regulations are bound to go through a level of growing pains,â she added. âEmployers will just need to be ready to keep adapting and adjusting until the regulations are able to strike the needed balance between the purpose of wellness, protection of employees and operational feasibility for employers.â
Each new development in wellness programs, whether by regulation or court cases, is pretty significant, said Calvin Chambers, an attorney at Hall Render, the nation’s largest law firm focused exclusively on matters specific to health care organizations.
After the initial EEOC rules came out, employers had some sense of certainty with regulations, he said. What they should expect now is that the incentives will either remain at 30 percent or lessen.
Employers who use wellness vendors for their programs may be confused at what to do next with plan design. A recent webinar addressed employer concerns and made suggestions for how they can make sure they can continue their programs. More on that in a future post.
Feel free to comment below or tweet at me @Andie_Burjek if you have any thoughts on this topic.
Meanwhile, the next two posts Iâm working on are related to two articles Iâve been assigned: The Future of Retirement, and the Demographics of Entrepreneurship. Iâll pose two questions now. If you have any thoughts or a response, feel free to share:
What are your personal retirement concerns?
Can benefits be incorporated in startups to retain a more diverse group of employees?
Thanks for reading!
Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.
Harsh dose of reality aside, Walmart has officially moved the needle on both minimum wage and paid family leave. And other employers are going to have to react.
To compete in the job market against Walmart, other companies will have to begin voluntarily offering a higher minimum wage and paid family leave. Thus, over time, they will spread to most employers nationwide.
Bravo, Walmart. You have now done more for worker rights than our federal government.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Attorney James Patrick Stanton, accused of secretly videotaping nude and partially clothed female employees of a Tampa company, has agreed to never practice law again in Florida.
Before a brief hearing today, Stanton signed a consent to disbarment. âŚ
Among those expected to testify at the hearing was former MaintenX employee Jeremy Lenkowski, who was repairing Stantonâs laptop in 2010 when found the videos. âŚ
After leaving the company in 2014, Lenkowski turned the videos over to Tampa police, who arrested Stanton on 123 felony counts of video voyeurism. Prosecutors reduced the charges to misdemeanors, and a judge dismissed them altogether after Stantonâs lawyers argued that the statute of limitations had expired. âŚ
In 2014, five âJanes Doesâ sued Stanton, MaintenX and other defendants in Hillsborough County Circuit Court. A Tampa attorney representing the women, Steven Parker, said today that the claims against Stanton had been settled confidentially but that neither he nor the women could comment.
And while this is all very disturbing, itâs what I omitted that earns Stantonâs employer, MaintenX, its nomination:
In a lawsuit he later filed, Lenkowski said he told top MaintenX executives about the videotapes but said nothing was done by the company except to remove the cameras and instruct Stanton to get counseling.
If your learn an employee has secretly videotaped women showering, going to the bathroom, and changing clothes at work, and your only reaction is to remove the cameras and send the employee to counseling, you might be the worst employer of 2018.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
James Tombeno worked for FedEx for 22 years as a sales executive. At the time of his hire, Tombeno signed an agreement that required him to submit to drug and alcohol testing upon FedExâs request.
FedEx required Tombeno to submit to a drug screen after his supervisor smelled marijuana in Tombenoâs work vehicle. When Tombeno refused, FedEx fired him.
The court had little difficulty dismissing Tombenoâs claims of discrimination (age and sex), as well as his claims for hostile work environment harassment, retaliation and breach of contract.
Why did this employer win? Beside the fact the employee refused to take a required drug test, the employer had a policy, to which the employee agreed, that defined when a drug test could be required and the consequences an employee would suffer upon a failed or refused test.
What are some considerations for your workplace drug testing policy? Here are five thoughts:
What is the scope of your policy? When are employees expected to be drug-free? At work? Away from work? How many strikes are employees allowed (i.e., is your policy zero tolerance)?
Under what circumstances can you test employees? Pre-employment (allowed by the ADA for illegal drugs)? Reasonable suspicion (if you reasonably believe, based on objective factors, that an employee might be under the influence)? Periodic or random (but, note that random does not mean at your whim; you need a process to ensure bona fide randomness)? Post-accident (provided there is a reasonable nexus between the accident and potential impairment)?
What are the consequences for failure? Your policy should expressly state the consequences of a positive drug test, or a refusal to submit to, or complete, a test (i.e., termination of employment).
Do you offer resources for employees upon a failed test? The ADA does not protect employees who are under the influence of an illegal substance while at work. Nevertheless, addiction is an ADA-protected disability. Offering assistance to an addicted employee (EAP services, unpaid time off for rehabilitation) will satisfy an employerâs reasonable accommodation requirements for employee-addicts who are not impaired at work.
Do you ensure confidentiality? Drug-test results are medical records protected under the ADAâs confidentiality requirements, and should be treated as such.
The one thing you should not do is drug-test employees without a policy protecting both the act of the drug test itself and any employment actions you take against employees as a result.
If you donât have a workplace drug testing policy, or arenât sure that yours is up to snuff, I may know an employment lawyer whoâd be happy to draft or review for you.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Last year, I tracked the stories of 23 employers, the behavior of which was less than exemplary.
From the list of 23 potential nominees, I was able to whittle it down to these four finalists. As much as I would like to say that these stories are fiction, or that I exaggerated facts for dramatic effect, each is a real news story or real case filed in a U.S. court of law.
The Cancerous Boss: An employee received the unfortunate diagnosis of kidney cancer and required immediate surgery to remove the tumor. As a result, she asked her employer for a 10-day leave of absence. If the employer granted the request, itâs safe the say it wouldnât have made this list. Not only did the business owner deny the request for time off, she told the employee she doesnât âneed people with cancer working in her officeâ and further stated, âthis is America and in America you have to work even if youâre sick.â She closed the conversation by firing the employee, telling him, âWith your illness, people die and I cannot keep you as a worker not knowing what is going to happen to you.â
The Racist Boss: An African-American employee complained to her white boss about his repeated use of racist slurs in the workplace. For example, he would comment about his Latino employees, âWeâll just make the Mexicans do it,â and make fun of Hispanic accents in front of them. He also told the plaintiff, along with another African-American female employee, âYâall are my b******,â before discussing a task. Following her complaint, her boss gave her a Christmas present â a rhinestone-studded purse of the Confederate flag and several photos of him posing with Confederate symbols.Â
The Horny Head of HR: A client-relations manager sued his employer after its head of human resources began sexually harassing him. She bragged how her âhusband has a girlfriendâ and claimed she lets her teen son watch porn. She pestered him about his sexual orientation and hugged him against his will. She texted him a picture of a man reading a book with the title, âAâ Eating Made Simple,â a video of a masturbating monkey and a picture of a man with an erection. It culminated with her nibbling on his ear while whispering, âI hope youâre not going to sue me.â Thatâs exactly what he did.
The Callous Non-Accommodator: Michael Trimble, originally from Ukraine, was born without arms as a result of birth defects resulting from the Chernobyl nuclear disaster. He rides a modified bike designed specifically for him and his disability. He is extraordinarily inspirational, which did not stop his employer from firing him. A manager complained about Trimbleâs habit of bringing his bicycle in through the buildingâs front door and asked him to carry it up the back stairs. Trimble says he explained the obvious: that he canât carry his bike up a flight of stairs because he doesnât have arms, nor, for the same reason, could he walk his bike through an outdoor courtyard. âCanât you just push your bike?â a supervisor asked him. âHow can I push my bike? I donât have any arms.â His employer ultimately fired him for continuing to bring his bike through the front door.
Itâs scary to think that in this day and age employers like this still exist. That bosses donât know that you canât fire someone who needs a few days off for cancer surgery, or canât make repeated race-based comments and slurs, or heads of HR (of all people) who donât know the first thing about sexual harassment and how to avoid it, or we deny easy-to-make accommodations to our disabled employees.
Throughout 2017, I was asked time and again, âJon, youâre a management-side attorney. Why are you focusing on bad employers?â Because bad conduct is a wonderful teaching tool: âDonât do as they do.â
Iâve decided to continue my work calling out the worst of the worst in the hopes that it makes us all better employers and, more importantly, better people.
Hereâs your early leader for 2018: According to recently filed lawsuit, a 68-year-old accountant asked his 23-year-old clerk to visit his home office off hours so that he could teach her about tax returns and accounting. She said that when she arrived, he told her that God wanted her to be his sexual plaything, that âshe was an angel sent to him for sex and compared himself and her to Adam and Eve.âÂ
Clearly, my work is not yet done.Â
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
There are lots of correct ways to respond to employee complaints.
Handcuffing and arresting the employee is most definitely NOT one of them.
Yet, this is exactly what the Vermilion, Louisiana, school board did when a teacher, Deyshia Hargrave, tried to raise concerns at a board meeting about a proposed raise for her boss, Superintendent Jerome Puyau.
Thus, I have nominated this employer as the Worst Employer of 2018.
The ordeal started when the school board met in a special session to vote on the renewal of Puyauâs contract. As Hargrave spoke against the renewal after the vote, a marshal approached her.
âYou are going to leave or I am going to remove you,â the marshal told her. âTake your things and go.â
âExcuse me,â she said to him. âIs it against policy to stand?â Ms. Hargrave asked the board, as the marshal tried to grab her arm. âSir, do not,â she said.
She started to walk sideways through the assembly to leave, as some protested, noting that Mr. Puyau had started to directly address Ms. Hargrave just as the marshal tried to eject her.
When it became apparent that Ms. Hargrave was being handcuffed in the hallway, the audience appeared startled. Several followed her into the hallway, and the video showed her on the floor and then standing, handcuffed, with the marshal behind her. âStop resisting,â he said as he walked her outside.
âI am not â you just pushed me to the floor. I am way smaller than you,â she said.
Outside, the marshal called for backup. He is heard saying to her that he had given her orders to leave, and Ms. Hargrave, standing in the dark against a car, replied, saying she was âwalking and asking you a question.â
She was placed in an Abbeville police patrol car.
After video of the incident went viral, the city attorney decided not to pursue charges against her. Judge for yourself whether this is worthy of consideration at yearâs end.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Many of our clients are waiting for the release of a technology solution that will solve all their problems. Will this be the year everything clicks into place and ongoing benefits engagement is no longer a challenge? Once we have the right tools, everything will be simple, easy and consolidated in one place, right?
If only that were our reality. What weâre seeing instead is a benefits and HR ecosystem that continues to get more crowded and more complicated. Providers are getting increasingly sophisticated in the tools and resources they offer. At the same time, employers are offering benefits from more and more providers. While the niche programs and tools are highly valuable and a great way to meet the needs of a diverse workforce, this means a more complex ecosystem for employees to wade through (and benefits pros to manage).
Before you move forward and make any significant changes to your benefits ecosystem â including adding a new communications channel or provider â consider how they will fit into your current environment. First, evaluate the different communications channels and resources youâre using today. Then determine if they create a cohesive experience for employees and how new providers and communications channels can be incorporated.
At the heart of any successful benefits ecosystem is a single dedicated and highly branded website that houses all benefits information. This education hub, or portal, connects employees to all the various administrators, programs and providers to make their transactions. It should be built outside the firewall so itâs accessible to family members. As a single go-to resource, a benefits website makes the task of adding new programs or communications channels much easier.
Once your website is in place, think about how the pieces of your communications ecosystem â across administrators, providers and programs â fit together to move employees to and from the information they need. The most successful strategies utilize the strengths of multiple channels, and every organization needs to use several channels to reach employees and family members. As you review your current ecosystem and think about adding a new provider or communications channel to the mix, think about how to best use various tools to drive action.
Alerts: Text messages, notifications, calendar reminders and single-topic emails are just some of the alerts we see every day. Alerts work best when they are personalized, targeted and timely. Look for how new providers incorporate alerts into the way they stay connected to employees and be cautious that you donât overwhelm employees with alerts (or they will start to tune out).
Promotions: Email, home mailers, posters and table tents are a just a handful of promotions weâre all familiar with. There are so many creative ways you can promote HR programs and resources. They can also be effective channels for your hard-to-reach audiences. These promotions point people toward education and transactional resources. Think about how youâll use promotions to drive engagement across benefits and how youâll make them as relevant and meaningful as possible.
Education: Detailed brochures, websites, videos, in-person meetings and webinars. If youâre like most employers, this is where you spend the bulk of your time and resources when it comes to communicating benefits. You explain how things work and are building channels that provide helpful information so employees have 24/7, self-service access. When you add new providers, think about how the education provided on their sites integrates with what you already have available. And, think about what youâll need to do to get employees to use those sites.
Transactions: Benefits administration platforms, HRIS systems and providersâ websites can all be used to get stuff done, whether thatâs enrolling, updating a beneficiary or participating in the wellness program. With mountains of personal data at their disposal, these channels create a compelling, targeted and personalized experience. But they are often full of resources that are underutilized. Plan for ongoing communication to drive usage of these platforms and tools.
A cohesive user experience is one of the biggest hurdles to ongoing engagement. While we may never have a single tool that does everything for us, looking at how all of the pieces work together and making ongoing benefits communication a priority will drive engagement.
NBC has issued strict new anti-sexual harassment rules to employees â including that staffers must snitch on any misbehaving colleagues.
NBC employees have been ordered to report any inappropriate relationships in the workplace â and if they fail to do so, they could be fired for covering up for colleagues.
Detailed rules also have been issued about conduct in the office, including how to socialize and even how to hug colleagues.
If you wish to hug a colleague, you have to do a quick hug, then an immediate release, and step away to avoid body contact.
The snitching part, Iâm more than OK with. In fact, it mirrors what the EEOC, and I, have been recommending for months â that moving forward, any anti-harassment program worth its salt must place a serious onus on all employees to report any workplace harassment. As I noted a few months ago, if youâre not taking an active role to stop harassment, youâre complicit in it; and that must stop.
The workplace hugging dance-step chart ⌠is a bit much. This is where common sense has to kick in. If you are comfortable giving a co-worker a hug (really close friends, for example), and you know that co-worker is comfortable receiving the hug, then hug away. If you have any doubts, then donât hug. Itâs really that simple.
To me, this part of NBCâs policy seems like an over-reach. In fact, it seems a bit silly. The one reaction you do not want your employees to have to your anti-harassment policy is laughter. If they reject one part of the policy, you risk them rejecting all of it, which is very dangerous.
I fear that given the revelations of the past few months, we will see more and more employers overreact with policies that try to regulate every aspect of employeesâ inter-personal relationships. Until the anti-harassment pendulum swings back to a more reasoned middle ground, we must remain vigilant in rooting out and stopping all workplace harassment, while at the same time not overreaching with policies and regulations that turn employees off from the very real and valuable message we are trying to communicate.
A 68-year-old Manhattan accountant lured his 23-year-old clerk to his home office by saying he wanted to teach her about income-tax returns â then claimed God wanted her to be his sexual plaything, according to a new lawsuit.
Eileen Kim claims in the new Manhattan Supreme Court suit that married boss Young Tai Choiâs creepy behavior started weeks after she went to work for him in January at his East 30th Street home office.
âChoi began telling her that she needed to come in after hours for âalone sessionsâ with him on Sundays to teach her about personal income-tax returns and accounting,â according to court papers.
During the session, he told the churchgoing New Jersey resident that âshe was an angel sent to him for sex and compared himself and her to Adam and Eve,â according to court papers.
When Choi yanked her onto his lap and tried to kiss her, she screamed and pushed him away, the suit says.
Kim is suing for unspecified damages.
Choi told The Post that Kim was the seductress and denied her allegations.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.
