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No More Teachers, No More Books, No More FMLA Days?

Posted by Walcheske & Luzi, LLC - - Employment Law Blog

Cue the Alice Cooper. As many school seasons have concluded for the summer, questions may remain as to how FMLA days are calculated during a school break.

FMLA regulations dictate that when an employer’s business activity has stopped, those days cannot be counted against an employee’s FMLA leave entitlement. This includes periods in which employees are not expected to report for work, such as Christmas break, spring break, and summer vacation. The concept is understood such that regardless of whether or not the employee is on FMLA leave, the employee is not expected to be working anyway.

Common sense and the law coexisting? Amazing.

Leave your comments with us, whether they involve your thoughts about FMLA for teachers or your plans during your school’s next break!

Fair Labor Standards Act: Exercise Caution with Unpaid Internships

Posted by Walcheske & Luzi, LLC - - Employment Law Blog

It’s that time of year again when students are looking for experience in summer positions and you’ve got a hankering for cheap labor. If you’re thinking about not paying an “unpaid” intern, make sure you do it right or you’ll be spending some quality time dealing with the fallout from the Fair Labor Standards Act.

The Fair Labor Standards Act (FLSA) generally requires that individuals who are “suffered or permitted” to work must be compensated for that work at a wage that is at least $7.25 per hour (minimum wage). Further, assuming the individual is a non-exempt employee, the individual must be paid overtime for any and all time worked over 40 hours per week.

Great, so what does this have to do with unpaid interns you ask? First, relax. Second, calling an individual an unpaid intern doesn’t mean that the person is not a regular employee requiring wages for time worked.

To actually qualify as an unpaid intern, the following six criteria must be met:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.
The internship experience is for the benefit of the intern.
The intern does not displace regular employees, but works under close supervision of existing staff.
The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded.
The intern is not necessarily entitled to a job at the conclusion of the internship.
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the internship meets all six criteria, then it is exempt from the employee-employee relationship, aka, you don’t have to pay the intern.

So, if you intend to create an unpaid internship, you need to be careful about what activities the intern is performing. The more “educational” the internship is, the greater the chance that it is exempt from the employment relationship. The more the intern performs tasks that regular employees would perform, such as filing, assisting customers, performing research, and the like, the greater the chance that the intern has to be paid in conformance with the requirements of the FLSA.

Have you ever been an “unpaid intern?” Do you think you really were an employee? Tell us about it!

Fair Labor Standards Act

EEOC Wins Big in Disability Discrimination Case

Posted by Walcheske & Luzi, LLC - - Employment Law Blog

We wanted to share an U.S. Equal Employment Opportunity Commission victory with you for two reasons:

It’s the biggest award ever recovered by the EEOC, so it’s a pretty big deal
The facts are fairly unbelievable (at least before this you would’ve hoped they would be)

The EEOC was awarded damages totaling $241.3 million by a Davenport, Iowa jury in a disability discrimination case. The award is the largest in the EEOC’s history, and for good reason.

The case involved 32 males with intellectual disabilities who were employed by Hill County Farms, doing business as Henry’s Turkey Service, between 2007 and 2009. The jury awarded each employee $5.5 million in compensatory damages and $2 million in punitive damages. Notably, this was in addition to a previous victory for the employees in September, when a court ordered that the employees be paid $1.3 million for unlawful disability-based wage discrimination. Turns out that in addition to harassing, discriminating against, and flat-out abusing the intellectually-disabled employees, Henry’s Turkey Service was also paying each one of them a whopping $65.00 per month (TOTAL!!!).

According to an EEOC press release, the EEOC presented evidence that over a period of years the owners and staff of Henry’s Turkey Service subjected the employees to abusive verbal harassment, including frequently referring to them as “retarded” “dumb ass” and “stupid,” and abusive physical harassment, including hitting, kicking, and forcing them to carry heavy weights as punishment. The EEOC further presented evidence that the employees were forced to live in sub-standard living conditions, that Henry’s Turkey Service failed to provide adequate medical care, and that supervisors were often dismissive of the employees’ complaints of injuries or pain. Wonderful.

File this one under, “Really?” Congrats to the EEOC for getting these employees a great result, but it’s unfortunate and unbelievable this happened in the first place.

discrimination, EEOC

FMLA Questions? Check Out This FMLA Guide

Posted by Walcheske & Luzi, LLC - - Employment Law Blog, FMLA

“Dad, what’s the FMLA?”

“Well Johnny, someday when you’re older, you may need to take off of work time to time for medical reasons. That’s where the FMLA can help you.”

“How will I know how to use the FMLA?”

“Well, a government agency, called the Department of Labor, or DOL, made an FMLA guide available for everyone to explain just that.”

“Wow, this guide is amazing and so simple to read! How come more people don’t know about this?”

“I’m sure they’re all just too busy.”

“Have you ever needed FMLA?”

“Why don’t you worry about yourself, Johnny.”

And scene.

With that, we remind you to take a look at the DOL’s FMLA guide, “Need Time?” It really is a fantastic resource and it can answer a lot of individuals’ most basic FMLA questions.

FMLA

2012 FMLA Cases summarized by the ABA

Posted by Walcheske & Luzi, LLC - - Employment Law Blog, FMLA

Due to the FMLA’s highly technical nature, FMLA violations are fairly common.

Thanks to the American Bar Association (ABA), you can take a look at the year that was with its summary of 2012 FMLA cases, which is a great resource for any and all Human Resource professionals, employees, employers, and of course the attorneys that often find themselves in the middle of an FMLA dispute.

The 2013 ABA FMLA report is free to read, download, or mindless look at.

New FMLA requirements on workplace poster

Recent developments with the Family Medical Leave Act (FMLA) have prompted us to take the time to update all of you.

FMLA regulation changes went into effect on March 8th. Additional FMLA requirements on workplace posters and notices went into effect on the same day stating that an FMLA poster must be prominently displayed in the workplace where employees will see it.

The new FMLA forms are available on the Department of Labor’s website and can be completed online.

ABA, FMLA

New FMLA Forms and Workplace Poster

Posted by Walcheske & Luzi, LLC - - Employment Law Blog, FMLA

Regulation changes to the Family Medical Leave Act (FMLA) went into effect on March 8th. Additional FMLA requirements on posters and notices went into effect on the same day stating that an FMLA poster must be prominently displayed in the workplace where employees will see it.

The new FMLA forms are available on the Department of Labor’s website and can be completed online. To save you some time and precious clicks, we provided the documents below. When you click on the document, you will be taken directly to an editable pdf form provided by the Department of Labor. You’re welcome!

Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)

Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)

Notice of Eligibility and Rights & Responsibilities (WH-381)

Designation Notice (WH-382)

Certification of Qualifying Exigency for Military Family Leave (WH-384)

Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)

Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

Enjoy!

department of labor, Family & Medical Leave Act, FMLA

Catching up with the FMLA

Posted by Walcheske & Luzi, LLC - - Employment Law Blog, FMLA

Recent developments with the Family Medical Leave Act (FMLA) have prompted us to take the time to update all of you.

First, we owe the FMLA a belated Happy Birthday! The card’s in the mail? February 5, 2013 marked the 20th anniversary of President Bill Clinton signing the FMLA into law. Congrats to the FMLA on reaching 20 – you’re not quite old enough to buy alcohol, but you know a guy that can help you out.

Second, the Department of Labor (DOL) celebrated the FMLA’s birthday as only a government agency could by issuing a final rule amending FMLA regulations that went into effect March 8, 2013.

The DOL’s final rule implemented expansions to military family leave and leave for airline flight crew members under the FMLA, while also tweaking a handful of other provisions.

Changes to Military Family Leave

Until recently, caregiver leave was only available to employees caring for current service members, not veterans. Under the new regulations, caregiver leave can be taken up to five years after the servicemember leaves the military and for an injury or illness that occurred before active duty but was aggravated by the military service.

Previously, exigency leave was available to family members of Reserve and National Guard members, and not regular servicemembers. Exigency leave is now available to family members of regular servicemembers, as well as Reserve and National Guard members, as long as they are deployed abroad.

Also note the new regulations allow for the use of FMLA leave to care for a servicemember’s parent when that parent is incapable of self-care.

Changes to Leave Eligibility for Airline Flight Crew

The changes in FMLA regulations as they apply to airline flight crew helped align their leave eligibility requirements to everyone else’s.

We’re sure you remember from our prior posts about FMLA such as “When Do Holidays Count As FMLA Leave?” and “Two Wrongs Can Make An FMLA-Right,” the FMLA section of this fantastic site, to be FMLA-eligible, an employee must work at least 1,250 hours in the preceding 12-month period, which equates to 60% of a typical 40-hour workweek.

The new regulations make clear that the hours counting toward an airline flight crewmember’s eligibility include all hours worked or which they are paid, not just those spent working in flight. A crewmember will be eligible if s/he has worked or been paid for not less than 60% of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the preceding 12-month period.

For additional information, read the final FMLA rule. The “major provisions” of the FMLA can be found here, and most helpfully, a side-by-side comparison of the old and new regulations can be found here.

FMLA

Corporate Social Media Policy ‘Don’ts’

Posted by Walcheske & Luzi, LLC - - Employment Law Blog

Did you know that 76% of the Inc. 500 do not have social media policies?

Unless you cheated and previously read that study, of course you didn’t, but that’s not the point. The point is employers are wise to craft a corporate social media policy outlining what employees can and cannot post online about the workplace. However, anything too broad will violate an employee’s ability to engage in activities without fear of employer retaliation, per the National Labor Relations Board (NLRB).

Social Media Policies and the NLRB

We know what you’re thinking, “You guys are complete geniuses ahead of your time, but the NLRB only comes into play with unionized employees,” right? Wrong.

The NLRB will step in even when a company’s employees are non-union, if employees’ ability to engage in concerted activity is somehow infringed upon, which is a very real risk employers run with social media policies. For this reason, the NLRB has issued multiple reports this year on various challenges to employers’ social media policies, in an attempt to rein in what has become a hot and controversial topic in the workplace.

The NLRB has created three separate reports offering guidance to employers – the first social media policy report by the NLRB was released on August 18, 2011. The second report released on January 24, 2012, covers 14 cases, half of which involve questions about employer social media policies. In the third report released on May 30, 2012, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

In these cases, big-budget employers with teams of lawyers, such as GM, Target, and DISH Network, have even been found to have social media policies infringing on employees’ rights. Ouch.

Four Social Media Policy “Don’ts”

The pointers that must be taken away from these reports are:

1) Social media policies must not be overbroad and potentially affect or limit an employee’s ability to engage in protected complaints and criticisms about the employer’s workplace, such as certain classes of individual’s being unjustly underpaid or the mistreatment of employees. If the policy is found to be too broad, it runs afoul of the National Labor Relations Act and the employer will have a not-so-hot date with the NLRB.

2) Don’t think a catch-all disclaimer or savings clause will save your policy. Some employers tried getting around an otherwise overbroad policy by including a disclaimer stating that nothing in the policy should be construed as limiting an employee’s right to engage in protected activity or limiting an employee’s rights as provided under the National Labor Relations Act. Think that worked? Not a chance.

3) The kiss of death is if a policy may be construed as “tend[ing] to chill employees” in their exercise of their rights under the National Labor Relations Act. This is akin to the caution against an overbroad policy. For example, a provision in GM’s social media policy prevented employees from posting anything that could be “misleading” about the company. The NLRB found this to be overbroad, in that it could be stretched to cover criticisms of working conditions, which is protected under the NLRA. Similarly, its provision that employees should think twice about “friending” coworkers could “discourage communications among co-workers.”

4) Even if the policy does not tend to “chill” employees, the NLRB uses a 2-prong analysis of social media policies. First, the NLRB analyzes the policy to determine if it facially chills employees in the exercise of their rights under the NLRA. Second, assuming the policy does not violate the first prong, the NLRB reviews the policy to determine whether:

The employer has used the policy to restrict employees’ protected activity;
The employer created the policy in response to employees’ union or otherwise protected activity; or
The employer’s policy could be construed by an employee as prohibitive of protected activity (highly subjective, we know).

If you are an employer and you have a social media policy, review it now. Better yet, have an employment law attorney who actually knows about social media policies to review it for you.

Does your workplace have a social media policy? Do you think it’s overbroad? Has it been reviewed lately? Let us know and start a discussion.

Employment law, National Labor Relations Act, National Labor Relations Board, social media, Social media policy

4 Do’s of a Company Social Media Policy

Posted by Walcheske & Luzi, LLC - - Employment Law Blog

In our last series of posts, we’ve gone through some sticky issues that can arise in the workplace when a company has a social media policy and when a company doesn’t have a social media policy. The biggest, overarching takeaway from those posts is that companies should have a social media policy that is carefully worded and complies with applicable laws.

4 Company Social Media Policy Do’s

So, what exactly should be in a social media policy? Thankfully, the NLRB’s guidance on this question is becoming increasingly helpful:

1. A prohibition on the sharing of specific confidential company information. This is usually a company’s greatest concern, so obviously it should be and can be addressed. However, it has to be as specific as possible, providing examples such as internal company initiatives, internal programs (specific, named programs is preferable), and product/project launch dates.

If you would like to include “trade secrets,” do not simply include that term, define it, be specific, and give examples.

If this prohibition is not specific, chances are it will be found violative. For example, in the NLRB’s May 30^th report, it found a provision prohibiting disclosure of “confidential information,” generally, to be violative.

2. A prohibition on the disclosure of any confidential personal information of any clients, customers, patients, and the like. This is fairly straightforward, but again, be specific and give examples.

3. A prohibition on improper employee conduct. This is the area with which one has to be the most careful. Employees (together, not just one employee—a “technicality,” yes, but an important distinction) are free to complain about workplace conditions and the treatment of employees. We know you don’t like it, but get over it or suffer the consequences. So, anything even touching on an employee’s ability to engage in such activity is a huge no no. However, there are still commonsense limitations on an employee’s acceptable use of social media that should and can be prohibited, so long as specific examples are provided. For example, a policy can prohibit the following (this is not exhaustive by any stretch):

i. slanderous activity;

ii. harassment or bullying of other employees;

iii. discriminatory remarks; and

iv. threats of violence.

4. A prohibition on the use of social media in the workplace, unless work-related and authorized. Again, this is pretty straightforward. However, if you’re going to have this be a part of your policy, you have to enforce it, as you should be doing with all of your policies. When we talk policies with companies, and when we come to a policy that gets a lukewarm reaction, we always say that if you’re not going to enforce it, don’t put it in. Workplace policies should be there for a reason and should not simply be lip service.

These should at least provide a rough understanding of what can be prohibited by a social media policy without running into problems with the NLRB. However, if you are an employer and you either have a social media policy or are thinking about incorporating a social media policy into your workplace, contact an employment law attorney to have your policy reviewed or to have your policy drafted. As evidenced by the NLRB’s penchant for cracking down on social media policies, these policies are littered with potential pitfalls.

Furthermore, once a social media policy is in place, training should be provided on the policy and what is prohibited under it. Only 27% of employers conduct social media training.

Hopefully it’s not shocking to hear that employees do not sit down nightly with an employer’s policies and study them. So, if an employer’s going to go through the effort of creating a social media policy, it is important to supplement the policy with training as well. This will tell the employees that the company is serious about the policy and will enforce it, hopefully resulting in less violations of the policy and less headaches for the company.

Does your workplace have a social media policy? Does it cover these bases? Let us know!

social media

This Court is Out of Order: Justice Bradley Spills the Judicial Beans

Posted by Walcheske & Luzi, LLC - - Employment Law Blog, Wisconsin Employment Law News

No “real post” this week. We just wanted to pass something along to you to read and make your own judgments.

The link below concerns our State Supreme Court and, specifically, the judicial misconduct claim being brought against Justice Prosser by the Wisconsin Judicial Commission. Justice Prosser filed motions for recusal for each Justice (meaning that he asked that each of them not be allowed to participate in determining whether discipline should be imposed against him).

Justice Bradley granted his motion and recused herself; however, in the process, she told her side of the story for all of us to read. Trust us, it’s worth it.

So, take a read and be sure to tell us what you think. We promise it’s a quick read.

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933

Comment

No More Teachers, No More Books, No More FMLA Days?Cue the Alice Cooper. As many school seasons have concluded for the summer, questions may remain as to how FMLA days are calculated during a school break. FMLA regulations dictate that when an employer’s business activity has stopped, those days cannot be counted against an employee’s FMLA leave entitlement. This includes periods in which employees [...]
Fair Labor Standards Act: Exercise Caution with Unpaid InternshipsIt’s that time of year again when students are looking for experience in summer positions and you’ve got a hankering for cheap labor. If you’re thinking about not paying an “unpaid” intern, make sure you do it right or you’ll be spending some quality time dealing with the fallout from the Fair Labor Standards Act. [...]
EEOC Wins Big in Disability Discrimination CaseWe wanted to share an U.S. Equal Employment Opportunity Commission victory with you for two reasons: It’s the biggest award ever recovered by the EEOC, so it’s a pretty big deal The facts are fairly unbelievable (at least before this you would’ve hoped they would be) The EEOC was awarded damages totaling $241.3 million by a [...]
FMLA Questions? Check Out This FMLA Guide“Dad, what’s the FMLA?” “Well Johnny, someday when you’re older, you may need to take off of work time to time for medical reasons. That’s where the FMLA can help you.” “How will I know how to use the FMLA?” “Well, a government agency, called the Department of Labor, or DOL, made an FMLA guide [...]
2012 FMLA Cases summarized by the ABADue to the FMLA’s highly technical nature, FMLA violations are fairly common. Thanks to the American Bar Association (ABA), you can take a look at the year that was with its summary of 2012 FMLA cases, which is a great resource for any and all Human Resource professionals, employees, employers, and of course the attorneys that often [...]
New FMLA Forms and Workplace PosterRegulation changes to the Family Medical Leave Act (FMLA) went into effect on March 8th. Additional FMLA requirements on posters and notices went into effect on the same day stating that an FMLA poster must be prominently displayed in the workplace where employees will see it. The new FMLA forms are available on the Department of Labor’s [...]
Catching up with the FMLARecent developments with the Family Medical Leave Act (FMLA) have prompted us to take the time to update all of you. First, we owe the FMLA a belated Happy Birthday! The card’s in the mail? February 5, 2013 marked the 20th anniversary of President Bill Clinton signing the FMLA into law. Congrats to the FMLA on [...]
Corporate Social Media Policy ‘Don’ts’Did you know that 76% of the Inc. 500 do not have social media policies? Unless you cheated and previously read that study, of course you didn’t, but that’s not the point. The point is employers are wise to craft a corporate social media policy outlining what employees can and cannot post online about the workplace. However, [...]
4 Do’s of a Company Social Media PolicyIn our last series of posts, we’ve gone through some sticky issues that can arise in the workplace when a company has a social media policy and when a company doesn’t have a social media policy. The biggest, overarching takeaway from those posts is that companies should have a social media policy that is carefully [...]
This Court is Out of Order: Justice Bradley Spills the Judicial BeansNo “real post” this week. We just wanted to pass something along to you to read and make your own judgments. The link below concerns our State Supreme Court and, specifically, the judicial misconduct claim being brought against Justice Prosser by the Wisconsin Judicial Commission. Justice Prosser filed motions for recusal for each Justice (meaning [...]