For its part, the Bar has apologized, and has said it is investigating how the incident occurred and will publicize its findings.
Speculation on the cause of the unfortunate email ranges from hackers to a disgruntled employee.
Itâs neither.
Readers, let me break this case for you.
This is nothing more than a good olâ fashioned mistake, or a series of mistakes.
Employee has porn on his work computer (Mistake No. 1.)
He is tasked with sending an email to all of the organizationâs members regarding its spring convention.
Part of that email was to be an attached flyer.
Employee attaches a file to the email that he thinks is the flyer. Itâs not; itâs the porn image. (Mistake No. 2.)
He then clicks âsend,â without realizing his error and without checking to see if he attached the correct image. (Mistake No. 3).
Iâll be floored if the investigation reveals anything different.
So, what lessons can we learn from this unfortunate story?
First, letâs please, as part of our annual harassment training, remind our employees that they should not be viewing porn in the workplace, let alone storing it on their computer. Nothing good ever comes from that.
Second, letâs remind our employees to slow down. Yes, we are all busy, and, yes, we are all under a lot of pressure to complete a lot of tasks on a daily basis. But, as if often the case, itâs so much better to get it right than to get it done.
Yes, emailing porn to everyone on your employerâs mailing list is not great, but it could have been so much worse. Imagine if, instead of an image of a topless woman, it was a confidential business plan, or the employerâs financial records.
âMeasure twice, cut onceâ applies to just about anything anyone does at work. A simple double checking of the attachment could have saved everyone involved a whole lot of embarrassment.
Or, this employee simple could have kept his porn at home. Just sayinâ.
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.
I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees.
He even had one outside the bathrooms to record how frequently and for how long his employees were taking potty breaks. Needless to say, morale among his employees was not great.
Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.
Employers have legitimate business reasons for tracking employee movements â e.g., enhanced operational efficiencies, improved customer service, securing accurate time records, and improved safety.
The counterbalanced risks? For starters, thereâs the creep factor. How much will your employees mind Big Brother tracking all of their movements, and how will it impact morale?
Additionally, there are some legal risks.
Privacy: Provided employees consent to wearing these tracking devices as a condition of their employment, there should not be any privacy concerns. Indeed, in Quon v. Arch Wireless, the Supreme Court suggested that employees may lack any reasonable expectation of privacy in employer-provided technological equipment. Yet, the law is not quite settled on these privacy implications. Moreover, state privacy laws may vary. Additionally, the more data you record, the more risk you take that such information will be compromised or targeted by hackers.
Medical Information: Tracking employee movements could reveal a host of medical information. Who visits the bathroom more could be pregnant or suffering from a bladder infection? Who smokes? Who visits the vending machine and eats unhealthy snacks? This information could be used, for example, by employers to discriminate, or by insurers to charge higher premiums.
So, what are some suggestions if you wish to use devices to track employee movements in your workplace?
1. Document your reason(s) for tracking to support your legitimate business interest.
2. Disseminate (and explain) an Employee Tracking Policy, which should describe the need for the program, the nature of the tracking device, the data you will be tracking, how you will use (and, more importantly, not use) the data, and how you plan to keep it secure.
3. Obtain employee consent before deploying the device.
4. Limit the data to those that need to know, to minimize the sphere of individuals who could learn or infer medical information.
5. Donât sell or otherwise disclose the information to insurers or other third parties.
And finally, call your employment lawyer. Cutting edge practices are always risky and should be vetted by counsel.
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.
In my opinion, the original British version of The Office is far superior to its American counterpart, in large part because David Brent is so much more cringe-worthy than Michael Scott.
This meeting violates one of the cardinal rules of terminating an employee:
Donât debate the decision or supply a lengthy explanation.
If you have previously communicated to an employee documented performance issues, there is no point in rehashing them at termination. It accomplishes nothing and is cruel. Instead, simply remind the employee that youâve previously discussed the issues, which have not approved.
In a reduction in force, the conversation is even more simple: âThe company has eliminated your position, and is prepared to offer the following severance package.â
The more detail you provide, the more penned in you will be in later litigation. Your goal is to be honest with the employee, yet, in the event of litigation, provide your counsel with the most flexibility to support the termination.
And, for Godâs sake, donât debate the disabilities or other protected statuses of those who have not lost their jobs.
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.
In my never-ending quest to show you how many different ways you can screw up paying your employees under the federal wage and hour laws, today I am going to talk about how to properly calculate overtime payments for salaried, nonexempt employees.
An employer has two choices in how to pay overtime to a salaried nonexempt employee: by a fixed work week or by a fluctuating work week.
For reasons that will be illustrated below, the latter is a much more cost-effective option, and is your best way to save money overtime payments for this class of employees.
Spoiler alert: there is some math involved.
By a Fixed Work Week
If you pay an employee a weekly salary, you must calculate the regular hourly rate of pay by dividing the weekly salary by the number of hours worked in that particular week.
For example, if you hire an employee at a weekly salary of $525, which is intended to compensate for a regular 40 hour work week, the employeeâs regular rate of pay will be $13.13 per hour ($525 /40). If that employee works overtime (let’s say, 45 hours that week), you will have to pay that employee $19.70 for each overtime hour worked ($13.13 *1.5). Thus, in a 45-hour week, the employee would be paid $623.50âthe $525 salary + $98.50 in overtime ($19.70 * 5).
On a Fluctuating Work Week
Oftentimes the number of hours a salaried employee works will vary from week to week, depending on the given needs of the job. One might work 40 hours one week, 45 the next, and 38 the week after that. An employer and employee can agree that a salary will cover all straight time pay for all hours worked in a given week, no matter how few or how many. Payment for overtime hours at one-half such rate satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate as part of the salary. And, that overtime premium will vary from week to week depending on the number of hours worked.
To use this method of overtime calculation, there has to be a clear mutual understanding of between the employer and employee that the fixed salary is compensation (apart from overtime premiums) for the hours worked each work week, whatever the number.
This âfluctuating workweekâ method of overtime payment may not be used unless the salary is sufficiently large to ensure that there will be no work weeks in which the employeeâs average hourly earnings from the salary fall below the minimum wage.
For example, taking our $525 salary from above, in a 45-hour work week, the hourly rate would be $11.66 ($525 / 45). But, for the extra 5 hours the employee would only be owed an additional $29.15 ($5.83 * 5), for a total weekly compensation of $554.15. The fluctuating work week saves this employer $69.35 in wages for the week. Thus, it is easy to see why the fluctuating work week is the preferred method for calculating overtime premiums for salaried non-exempt employees.
Just this week, in Hall v. Plastipak Holdings, the 6th Circuit Court of Appeals affirmed the validity of the fluctuating work week as an overtime payment method for salaried non-exempt employees, provided that:
the employee clearly understands that the straight-salary covers whatever hours he or she is required to work;
the straight-salary is paid irrespective of whether the workweek is one in which a full schedule of hours are worked;
the straight-salary is sufficient to provide a pay-rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours worked is greatest; and
in addition to straight-salary, the employee is paid for all hours in excess of the statutory maximum at a rate not less than one-half the regular rate of pay.
What do we take away from this wage-and-hour lesson? If you have non-exempt salaried employees whose work hours fluctuate from week-to-week, give strong consideration to implementing a fluctuating work week, via a written agreement that explains, in plain English, the arrangement.
Otherwise, you might end up paying three times more overtime than you otherwise could legally pay.
And who wants that?
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.
Small-business owners, pay attention. This update on the issue of joint employment will be one of the most important things you will read this year.
Joint employment has been on a bit of a roller coaster ride at the NLRB over the past few months.
Iâm going to sort it all out for you and try to explain where we might be headed next.
What is Joint Employment?
Joint employment is the sharing of control and supervision of an employeeâs activity among two or more business entities, such that each is liable for the legal wrongs of the other to its employees (e.g., discrimination, wage and hour, OSHA, unfair labor practices ⌠). Itâs what would hold a franchisor liable for the wrongful acts of its franchisee, a contractor for its sub and a business for its staffing company.
What are the Historic Joint Employment Rules?
For decades prior to Aug. 27, 2015, it was uniformly established that for one entity to be a joint employer with another, it had to exercise direct and actual control over the terms and conditions of the other entities employees. Do they supervise? Are they subject to the same work rules? Can they hire, fire, and discipline? Who pays and how? Who provides benefits? Who assigns schedules and otherwise directs work? If one employer maintains control over these issues, then the other would not have been a joint employer.
Given this strict test, entities such as franchisors and general contractors felt reasonably comfortable that they were not liable for the acts of its franchisees and subs relative to their employees.
In Browning-Ferris, the NLRB ignored and tossed out 40 years of precedent and expanded the definition of âjoint employerâ not only to include those that exercise direct and actual control, but also those that exercise indirect control or reserve the potential to exercise control. OSHA and the DOL soon followed suit and announced similar standards under their respective statutes. Small business owners as well as other employers, (justifiably) panicked. If a franchisor, for example, is liable for the legal wrongs of its franchisees towards employees that the franchisor does not hire, fire, discipline, pay, or otherwise direct, why franchise at all? Why not just run the businesses, control the liabilities, and cut out the middle man?
In Hy-Brand, the NLRB expressly overruled Browning-Ferris and restored direct and actual control as the lone test for joint employment:
[W]e overrule Browning-Ferris and restore the joint-employer standard that existed prior to the Browning-Ferris decision. Thus, a finding of joint-employer status requires proof that the alleged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having âreservedâ the right to exercise control), the control must be âdirect and immediateâ (rather than indirect), and joint-employer status will not result from control that is âlimited and routine.â
Bravo. Employers rejoiced.
The Celebration was Short-Lived
On Feb. 26, 2018, the NLRB vacated Hy-Brand, restoring Browning-Ferris (and its potential/indirect control tests) as the law of the NLRA on joint employment.
Why?
Because current NLRB board member Bill Emanuel, one of the three votes in Hy-Brand in favor of overturning Browning-Ferris, was a partner at the law firm that represented Browning-Ferris in 2015. This decision followed the report of NLRB inspector general David Berry earlier this month, which concluded that Emanuel should have recused himself from Hy-Brand, not because Emanuel engaged in anything improper, but because the appearance of a potential conflict should have caused his recusal.
What Now?
For now, Browning-Ferris remains the law on joint employment under the NLRA. And, it likely will continue as such, as without Emanuel, the highly politicized NLRB will almost certainly split 2-2 on any rehearing of Hy-Brand.
Browing-Ferris had been pending on appeal and awaiting decision. The D.C. Circuit Court of Appeals, however, dismissed the appeal and remanded the case back the NLRB for disposition consistent with Hy-Brand. You should now expect more litigation over that issue in the D.C. Circuit.
As you can see, this issue is a muddled mess.
One easy solution is the federal (and bipartisan)Â Save Local Business Act. It expressly defines a âjoint employerâ under the NLRA and FLSA as one that â
directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment, such as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.
It passed the House last November, and now awaits action in the Senate.
This past summer, I asked if joint employment was the issue to unite our divided country. For the sake of Americaâs small-business owner, I certainly hope it does. If you are concerned about this issue (and you should be), call or email your Senator and Congressperson to urge their support of the Save Local Business Act.
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.
The 2nd Circuit federal court of appeals (which covers New York, Connecticut, and Vermont) on Feb. 26 held that âTitle VII prohibits discrimination on the basis of sexual orientation as discrimination âbecause of ⌠sex.â â
There is no federal mandate on the issue, as Congress has refused to act to amend Title VII to clarify the issue, and other federal circuits disagree with the 2nd and 7th. Also, there are still 29 states that do not expressly prohibit LGBT discrimination under their civil rights laws.
In advancing Ohioâs business climate, the Ohio Camber recognizes the value and power of diversity. We believe that employees deserve robust protections from discrimination and that discrimination of any type has no place in the workplace. Everyone deserves the right to do their job without fear of being discriminated against and every person, regardless of their race, color, religion, sex, military status, national origin, disability, age, ancestry, sexual orientation, or gender identity, deserves equal opportunity and equal protection under the law.
As I applaud the 2nd Circuit for its decision in Zarda, I hope I will soon be able to similarly applaud Ohioâs legislature and Gov. John Kasich after H.B. 160 become law. All the while, I wait for the day when we finally have national uniformity on this important civil rights issue.
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.
Consider this scenario. Employer and Employee have a good-faith dispute over whether Employer owes Employee for unpaid overtime for time Employee spent traveling.
Employee sues.
Court awards Employee $608.08 for unpaid overtime (doubled to $1,216.16 as liquidated damages).
So far, this all seems kosher.
Then, however, Employee files his petition for attorneysâ fees.
$141,236.50Â in attorneysâ fees.
Ultimately, the court reduced the fee award to a still-shocking $41,333.70.
Why? Because there is no rule that an award of attorneysâ fees be proportional to an employeeâs recovery.
Defendants correctly observe that fees should not overwhelm a case. In FLSA cases, as noted, the amount of damages is often less than the fees awarded. Indeed, in recent years this court has seen a spate of FLSA cases brought by low-wage workers seeking paltry sums. The proper measure is not proportionality.
Quite frankly, this is BS.
Wage-and-hour cases under the FLSA are often high-stakes games of extortion-by-litigation.
Plaintiffs rely on the disproportionately high attorneysâ fees to extort settlements of these cases. For small businesses these cases, and the risk of paying their lawyer plus the plaintiffâs lawyer, causes almost all of these cases to settle, no matter the legal merit (or lack thereof) of the wage claim.
No small business can afford the six to seven figures these cases end up costing.
I can see the counterargument coming a mile away. âBut Jon, we need to force employers to pay the employeeâs attorneysâ fees as a deterrent to force compliance with the FLSA and to stop them from stealing wages.â
This argument, however, rests on two huge assumptions with which I strongly disagree:
That employers are stealing wages from their employees.
That employers are intentionally violating the FLSA.
As Iâve written before, the idea of âwage theftâ is a fraud. Employers arenât intentionally stealing wages from their employees. They are struggling to comply with an 80-year-old law that is too complex for any employer to fully understand.
If you discredit the notion that employers are intentionally violating the FLSA by stealing wages from their employees, then the deterrence argument for awarding attorneysâ fees in FLSA cases goes out the window.
The FLSA is broken and needs to be fixed. A great place to start, instead of huge fee awards in wage-and-hour cases, is reinvesting that money back into education so that employers can begin to better understand their compliance obligations.
Otherwise, all we are accomplishing is lining attorneysâ pockets, which serves no oneâs interest but theirs.
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.
” âEâs not pininâ! âEâs passed on! This parrot is no more! He has ceased to be! âEâs expired and gone to meet âis maker! âEâs a stiff! Bereft of life, âe rests in peace! If you hadnât nailed âim to the perch âeâd be pushing up the daisies! âIs metabolic processes are now âistory! âEâs off the twig! âEâs kicked the bucket, âeâs shuffled off âis mortal coil, run down the curtain and joined the bleedinâ choir invisible!! THIS IS AN EX-PARROT!!”
The employee, Joseph Buck, worked as a machinist for Mercury Marine. He also had a dog, which, on May 26, 2014, he had to put to sleep. That day he called his supervisor and asked for a vacation day (which was granted) because of how upset he was.
The next day, Buck called again and explained that he had not slept since the loss of his dog and would not be able to work. Mercury Marine considered that absence unexcused.
That same day, he sought treatment at the ER and was diagnosed with âsituational insomnia,â which a nurse documented in a note that Buck presented to his employer. Despite the note, the absence, and all others over the next three months, were considered unexcused.
Ultimately, Mercury Marine terminated Buck for accumulated unexcused absences, and he filed suit under the FMLA.
The district court dismissed Buckâs FMLA claim, concluding that while inability to sleep caused by the death of a pet could potentially constitute an FMLA-covered âserious health condition,â Buck had failed to show that his condition met that definition.
A serious health condition entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility.
Continuing treatment means a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition.
The court concluded that because Buckâs treatment met neither prong of the definition of a âserious health condition,â the FMLA did not cover his absences:
The record contains no evidence that the plaintiff sought, or obtained, medical attention for the insomnia, other than his one visit to Nurse Baseleyâno prescriptions, no treatment reports, nothingâŚ. The nurseâs letter does not categorize the insomnia as chronic, or say whether she expected it to continue. There is no evidence to support the plaintiffâs statement that he had been suffering from intermittent, shift-related insomnia for months.
This is not to say that an employee can never qualify for FMLA leave following the death of a pet. It just means than an employeeâs resulting mental condition must otherwise meet the FMLAâs definition of a âserious health condition.â
One more thing. If an employee is that broken up about losing a beloved pet, do what Mercury Marine did in this case, and grant the employee a day to recover. Youâll be a better employer for it.
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.
âWhat is bitcoin? I donât understand how fake money works.â
These were the words of my 9-year-old last week.
Let me try to help him, and you, out.
Bitcoin is not fake money. Itâs digital, or virtual, currency, created in 2009 by an unknown person using the alias Satoshi Nakamoto. Itâs used for online transactions â some legitimate (Microsoft, Overstock), and some not legitimate (ransomware, dark web purchases).
Itâs also traded online, which has made it very, very valuable. In fact, bitcoins do not have a set value. Their value is based solely on global exchanges and depends on how itâs bought and sold online.
As of mid-February, one bitcoin was trading online for $9,575.
Because of the skyrocketing value of bitcoin, the more forward thinking of employers may want to pay employees in bitcoins instead of dollars. Moreover, your employees may want to accept payment of their wages in these valuable bitcoins.
Tread very carefully, however.
The IRSÂ treats bitcoin and other virtual or cryptocurrencies as property, not as currency.
Because the IRS treats bitcoin as property, itâs very likely that the DOL will not consider it âcashâ or a ânegotiable instrumentâ (i.e., a paycheck) for purposes of wage payments.
Thus, if you are not properly paying your employees under the FLSA, you have failed to pay them a minimum wage (a big FLSA no-no), no matter how valuable the bitcoins you’re providing may be.
is not correlated to hours worked, production achieved, or efficiency attained
its value will count as part of an employeeâs regular rate, and must therefore be factored into non-exempt employeesâ overtime calculations.
I applaud any employer that looks to get creative with how it compensates its employees or rewards performance. In this case, however, a little bit of discretion will go a long way toward wage-hour compliance and avoiding an expensive FLSA mistake.
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.
Raef Lawson worked as a restaurant delivery driver for online food delivery service Grubhub for four months in late 2015 and early 2016. He claimed that the company misclassified him as an independent contractor and owed him overtime for hours he worked over 40 in any workweek.
Last week, in Lawson v. Grubhub [pdf], a California federal judge granted the gig-employer a huge victory by ruling that Lawson and all other similarly situated drivers are independent contractors and not employees.
The court found that Grubhub lacked the necessary control over the driverâs work for him to be considered an employee.
In California (as in Ohio, most other states, and under current federal law) the test to determine whether a worker is an employee or an independent contractor is whether the business has âthe right to control the manner and means of accomplishing the result desired.â
The judge found that Grubhub did not exercise sufficient control, as it:
Exercised little control over how Lawson made his deliveries, not interfering with his choice of vehicle;
Didnât control his appearance, require him to wear a special uniform, or meet any appearance standards;
Lacked required training or orientation;
Imposed no limits in passengers in the vehicles during working hours;
Didnât control, whether, and for how long, a driver works;
Allowed drivers to cancel their shifts at any time without penalty or consequences; and
Prepared no performance evaluations.
And while one cannot understate the significance for employers of the first federal court opinion to hold that a gig worker is an independent contractor and not an employee, perhaps the most important aspect of the opinion is Magistrate Judge Jacqueline Scott Corleyâs call to legislative arms to address this issue:
[W]hether an individual performing services for another is an employee or an independent contractor is an all-or-nothing proposition. If Mr. Lawson is an employee, he has rights to minimum wage, overtime, expense reimbursement and workers compensation benefits. If he is not, he gets none. With the advent of the gig economy, and the creation of a low wage workforce performing low skill but highly flexible episodic jobs, the legislature may want to address this stark dichotomy. In the meantime the Court must answer the question one way or the other.
In other words, the gig economy is not going away and will only increase in importance. As the number of gig workers increases, what will our government do to protect their pay, their benefits, their safety and their civil rights? Because if they are independent contractors, they enjoy almost no protections under the current state of the law.
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.
