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Curiouser and Curiouser

On July 18, 2012, in Editorial Advisory Board, Heather Bussing, by Heather Bussing

the Employment Law Blog Carnival -Wonderland Edition

The Employment Law Blog Carnival – Wonderland Edition

Alice: If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn’t. And contrary-wise; what it is it wouldn’t be, and what it wouldn’t be, it would. You see? 

Welcome to the Employment Law Blog Carnival -Wonderland Edition

Mock Turtle: Reeling and Writhing, of course, to begin with, and then the different branches of arithmetic–Ambition, Distraction, Uglification, and Derision.

So, why do employees quit? Employers think it’s money. It’s not. It’s because you’re a jerk-I mean, because they’re not “engaged.” Mark Toth offers the Magic Wheel of Engagement with 6 E’s to show you care.- Manpower Group- The Employment Blawg- Why Do Your Employees Really Quit?

Alice: I simply must get through!

Doorknob: Sorry, you’re much too big. Simply impassible.

Alice: You mean impossible?

Doorknob: No, impassible. Nothing’s impossible.

Title VII doesn’t protect against same sex sexual harassment unless you can prove that the harasser is gay. Why? Well, because employment lawsuits should really be about employees’ sex lives. Not. So an oil worker had to put up with crude (and not funny) jokes, grabs, and touching, including a hammer poked at his butt. His sexual harassment suit was thrown out because, although he was sexually harassed, the jerk harassing him was probably just bisexual, instead of gay.–Eric B Meyer- The Employer Handbook- One Roughneck’s Life: Sex Jokes, Gay Innuendo, All Legal. BTW-the case would have survived in California and other states with broader protections.

Knight: You see, it’s as well to be provided for every-thing. That’s the reason the horse has all those anklets round his feet.

Alice: But what are they for?

Knight: To guard against the bites of sharks.

An employer and employee agree in writing that employee would have a set salary for 36 months. Employee is fired a year later, and sues for the remaining 2 years’ pay.  Because the agreement never said the employee would stop getting paid when she stopped working for the company, the court made the employer pay. So make sure to always say that employees will stop getting paid when they get fired. I know, right?  Daniel Schwartz – Connecticut Employment Law Blog – In Drafting Employment Law Contracts, Precision and At-Will Disclaimers Matter

Alice: Where should I go?

Cheshire Cat: That depends on where you want to end up.

In Canada and the UK, employment is contractual instead of at-will. So discharge requires good cause. If you change an employee’s terms of employment enough–usually their pay– you can, in effect, fire them. Then you get an unjust dismissal claim even though they weren’t fired. The answer: don’t force new terms, negotiate a new contract. See Stuart Rudner- Canadian HR Reporter What is Constructive Dismissal.

Mad Hatter: Would you like a little more tea?

Alice: I haven’t had any yet, so I can’t very well take more.

March Hare: Ah, you mean you can’t very well take less.

Mad Hatter: Yes. You can always take more than nothing.

If you are considering automatic enrollment in the company retirement plan, be sure to make the withholdings from everyone, every time. If you don’t you will end up with far less than nothing. And read Jewell Lin Esposito’s post at Employee Benefits Unplugged, Financial Advisors: Auto Enrollment Isn’t Always the Best Solution for 401(k)s

Alice: There’s no use trying, one can’t believe impossible things.

Queen: I daresay you haven’t had much practice. When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.

The NLRB, aka Policy Police, has declared that at least six of your employment policies probably violate the NLRA because they are so broad that employees can’t talk about wages, hours, and working conditions. The six impossible policies are: at-will, arbitration, no salary discussions, confidentiality, nondisparagement and social media.  Donna Ballman – Screw You Guys I’m Going Home- Top Six Illegal Policies in Your Employee Handbook. Donna also talks about what actually happens if you violate the NLRA and someone brings a charge.

King: I don’t like the looks of it. However, it may kiss my hand, if it likes.

Cheshire Cat: I’d rather not.

In a related post on impossible policies, if you have a policy that requires employees to keep their pay and benefits confidential, you are probably violating the NLRA because talking about wages is protected concerted activity.  But wait, the employer and employees must also keep some of the exact same information confidential under the ADA, GINA, HIPPA and privacy laws. So the law requires that employees cannot, and absolutely must, talk about it. Stephanie Thomas – Compensation Cafe- Does Your Compensation Policy Violate the NLRA?

Queen: Were you ever punished?

Alice: Only for faults.

Queen: And you were all the better for it, I know!’

Alice: Yes, but then I had done the things I was punished for, that makes all the difference.

Queen: But if you hadn’t done them,that would have been better still; better, and better, and better! 

The US Supremes are going to figure out whether an employer can be vicariously liable for a supervisor’s sexual harassment. Since sexual harassment is both intentional and personal, the company is not usually liable–not unless it knew what was going on and didn’t do anything. But under agency law, employers are liable for the acts of their employees even if they don’t know what’s going on as long as the employee is acting in within the scope of his job. The general rule is that sexual harassment is never in the course of someone’s job. But since sexual harassment is about power ,and supervisors have power . . . nah, probably no liability. For more on the case being considered by the Supremes, see Philip K. Miles–Lawffice Space SCOTUS Grants Cert in Supervisor Liability Case.

Queen: Now then, are you ready for your sentence?

Alice: But there has to be a verdict first.

Queen: Sentence first! Verdict afterwards.

WTF is benign discrimination? It’s when the plaintiff can show some sort of  improper bias, but no harm. Is any kind of bias illegal, or does something bad actually have to happen? Jon Hyman at the Ohio Employer’s Law Blog wonders what happened to the requirement of  an “adverse employment action” in discrimination lawsuits. Did the 6th Circuit Just Approve A Claim for Benign Discrimination?

Tweedledum: I know what you’re thinking about, but it isn’t so, nohow.

Tweedledee: Contrariwise. if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.

Alice: I was thinking, which is the best way out of this wood: it’s getting so dark. Would you tell me, please?’

When employees earn commissions as part of, or instead of, a paycheck, you still have to follow the rules on when employees get paid, minimum wage (unless they are exempt), payment on termination, as well as your contract/policy about payment. So you could end up having to pay an employee a bunch of commissions before you’ve collected them, especially if the employee is quitting. Andrea Paris looks at commissions under California law in The Basics-Paying Employees a Commission Part II.

Unicorn: You don’t know how to manage Looking-glass cakes. Hand it round first, and cut it afterwards.

If you cut an exempt employee’s salary, be sure you don’t accidentally raise it by making them subject to overtime. Bottom line: they have to meet minimum salary requirements (and actually be exempt based on their position and duties). For more tips see Mike Haberman at Blogging4Jobs- How to Reduce the Salary of Exempt Level Employees.

Alice: If you drink much from a bottle marked ‘poison’ it is certain to disagree with you sooner or later.

When an employee sues for unlawful conduct, it may not be the best idea to sue them back. It looks bad and can backfire as retaliation. For the scoop on one case that went sideways for the company see John Holmquist- Michigan Employment Law Connection- Be Careful What You Ask For: Retaliatory Counterclaims Under the FMLA

Dodo: Ahoy, and other nautical expressions!

The Edge Act requires that cases arising out of  international banking be brought in Federal Court. So a guy in Ohio was fired when the bank did an email sweep and found a bunch of porn and other “offensive” material. Because the bank dealt with international currency, it was allowed to move the case to federal court. Why? Well, because internet porn in Ohio is the same as international banking, right?  See Robert Fitzpatrick- Fitzpatrick on Employment Law – Some Banks May Be Able to Edge Plaintiffs Our of State Court.

March Hare:  I have an excellent idea, LETS CHANGE THE SUBJECT.

 

King: Rule 42: All persons more than a mile high must leave the court immediately.

Alice: I am not a mile high, and I’m not leaving.

Queen: Sorry. Rule 42, you know.

The amendments to the ADA provide broader (ahem) protections to people who are overweight. It looks like it may be awhile before the courts decide if the law protects people who are just overweight but can’t point to a medical condition that causes the weight. And what about medical conditions created by the weight? For a great discussion, see Robin Shea -Employment and Labor Insider- Is Obesity a Disability Under the New ADA? Probably.

Alice: It would be so nice if something would make sense for a change.

Ed. note: Quotes are from both Alice’s Adventures in Wonderland and Through the Looking Glass by Lewis Carroll.

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