Minnesota Labor & Employment Law Blog

Employee Trouble on the High Seas

Tiffany Schmidt — Tue, 17 Jan 2012 15:20:05 -0600

Photo by: Gregoria Borgia

If you haven’t heard about the Friday crash of cruise liner Costa Concordia off the coast of Italy, you must be disconnected from all technology, newspapers, and media, because it has been the #1 news story. The employment side to this tragedy at sea, is the alleged horse-play that went on in the ship’s bridge and the fact the Captain may have abandoned ship. Today, MSNBC.com reported this is not the first time the ship’s captain, Francesco Schettino has disobeyed orders. According to Italian news reports, Captain Schettino once left Marseilles, France in bad weather, against both company policy and Coast Guard orders. He was also once reportedly caught sailing too close to the shore in another part of Italy.

In addition to the human tragedy and loss of life, this event is going to be costly for Carnival Cruise Lines, the owner of the Costa Concordia. Especially, if it is shown that Captain Schettino had previous performance issues which were not addressed by Carnival. According to news reports, human error is primarily to blame for the cruise liner crash, and that responsibility ultimately rests with the captain. Captian Schettino deviated from the correct route for the ship and contravened safety procedures.

I don’t know if Carnival took disciplinary action against Captain Schettino for past violations of company policy, but if they didn’t, they certainly should have. Discipline for violation of company policies is meant to correct employee behavior. Company policies are important for a number of reasons including but not limited to notifying employees of expected behavior, and outlining safety procedures.

As a Minnesota resident, my thoughts and prayers go out to all the families involved in this crash, especially, the Heil family of White Bear Lake, who is still waiting for word on their missing parents.

U.S. Supreme Court's First Significant Employment Decision of 2012

Marylee Abrams — Fri, 13 Jan 2012 12:13:20 -0600

In a unanimous decision this week, the United States Supreme Court recognized a “ministerial exception” to federal discrimination laws. Hosana-Tabor Evangelical Lutheran Church and School v. EEOC The employment issue decided by the Court concerned the termination of Cheryl Perich, an elementary school teacher employed at a religious school.

Perich suffered from narcolepsy and was on disability leave from her teaching position. She demanded to return to her position, but she was denied the opportunity by church administrators, and she threatened to file suit for discrimination under the ADA. Her actions were determined to be insubordinate and disruptive and her conduct was viewed as damaging to working relationships, as noted in her termination letter. “According to the Church, Perich was a minister, and she had been fired for a religious reason-namely that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

EEOC filed a claim asserting Perich had been fired in retaliation for threatening to file an ADA lawsuit. The case turned on whether Perich’s teaching position fell under the “ministerial exception,” which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions. The Court reviewed her job duties which included teaching a full secular curriculum, teaching daily religion classes, commissioning as a minister, and regularly leading students in prayer and worship.

The Court stated:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court declined to adopt a rigid formula for deciding when an employee qualifies as a minister, but offered an analysis which reviews multiple factors and considers all of the circumstances. Key factors include whether the employee: (1) is “held out as a minister;” (2) underwent significant training; (3) was formally commissioned; and (4) performs “important religious functions.” The Court went on to explain the exception may apply even if the clear majority of an employee’s duties are non-religious, and that non-religious functions took up a vast majority of the employee’s work.

Religious employers can breathe a sigh of relief, and even shout out praise for a prayer answered. Under this ruling, more church employees will qualify under the “ministerial exception,” thus protecting churches, synagogues, and temples from federal and state discrimination suits.

Wal-Mart Ordered to Pay $187.6 Million Over Employee Handbook

Tiffany Schmidt — Wed, 11 Jan 2012 15:42:18 -0600

My law partner and I have blogged, trained, and also counseled clients about the importance of having updated Employee Handbooks at their workplaces. A court case out of Pennsylvania confirms the point we have been trying to make at an expensive price for the employer!

According to Pennsylvania attorney Jodi Frankel, Wal-Mart was just ordered to pay $187.6 million in back pay, damages, and fees to 187,000 current and former employees. It seems Walmart included paid break language in their Employee Handbook, and then failed to provide the benefit.

Frankel noted the Handbook policies in question “…[n]ot only guaranteed, but also mandated, a single fifteen-minute rest break to an employee who worked more than three hours in a shift, and two such breaks if an employee worked more than six hours. Pursuant to the policy, the breaks were to be ‘full, timely, uninterrupted’ and employees were to receive compensation for break time at the applicable rate of pay. The rest break policy set forth in Wal-Mart’s employee handbook, which was provided to all employees at the start of employment.”

While the Handbook stated it was not to be considered a contract by the employee, the Pennsylvania court found Wal-Mart had in fact made a promise regarding rest breaks, and that the promise amounted to a contract. The facts the Court found compelling included Wal-Mart had repeatedly held out rest breaks to employees as a benefit of being employed at Wal-Mart during employee orientation, they mentioned breaks in numerous postings at the workplace, and had taken disciplinary action against managers and employees for failure to follow the rest break policy.

While a Pennsylvania court case interpreting Pennsylvania law is not determinative in Minnesota workplaces, this case does offer some insight for Minnesota employers. Careful attention was paid by the Court to Wal-Mart’s Employee Handbook, and comparison to its actual business practices.

Since this is a start of a new year, it is the perfect time for employers to review and update their employee handbooks to insure they are consistent with current business practices. Also remember to update your policies when you update technology. If the start of a new year doesn’t inspire you to review your business practices, consider the cost and expense of litigation over an employee handbook issue.

We Were Named One Of The Top 25 Minnesota Blawgs of 2011!

Marylee Abrams — Tue, 10 Jan 2012 14:10:23 -0600

I am pleased and grateful that our blog was listed as one of the Top 25 Minnesota Blawgs of 2011, by editors of the Minnesota State Bar Association Legal News Digest and Practice Blawg. My law partner, Tiffany Schmidt, and I both enjoy sharing our thoughts and comments on topics important to employers. We are thrilled with the recognition, and it validates our goal to provide a common sense resource for employers.

The 2011 list of Top 25 Minnesota Blawgs is impressive, and we are honored to have our blog included on such a notable list of blogs.

Paid Leave While Employee Awaits Trial on Felony Criminal Charges?

Marylee Abrams — Fri, 30 Dec 2011 14:10:04 -0600

There is a public uproar in Minnesota about a Stearns County Deputy having received over $200,000.00 in salary and benefits, while facing 22 felony counts of criminal sexual conduct with minors. Recently his criminal trial was postponed again, and he continues in a paid status, approaching the start of his third year on paid leave.

Deciding to place an employee on paid or unpaid leave while criminal charges are pending, is not a new concept. An often over-looked 1997 U.S. Supreme Court case ruled, a public employee may be placed on unpaid leave while facing felony charges. In Gilbert v. Homar, the Court addressed the issue of a police officer facing criminal drug charges, indicating, “…[t]he State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers…We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.”

The Court identified three distinct factors to consider in their analysis. First, the private interest affected by the official action, (i.e the loss of the deputy’s paycheck); Second, the risk of an erroneous deprivation through the procedures used, (i.e. are the charges legitimate?); And finally, the Government’s interest,(i.e. the taxpayers interests.) I have no knowledge whether the Gilbert case was taken into consideration when Stearns County decided to continue the deputy in a paid status, but there are presently some compelling facts which indicate continuing the deputy in a paid status may not have been necessary. The deputy was in charge of the local Explorer Post, and at least one of the alleged victims was an Explorer Scout. Also, the beyond a reasonable doubt standard necessary to support criminal charges, is substantially higher than the clear and convincing or preponderance standards typically found in an employee discipline case before an arbitrator.

While it is true the Gilbert case involved a short suspension and not the two year time frame in Stearns County, the question remains, after consideration of the factors presented by the Court in the Gilbert case, is it fiscally responsible for a governmental entity to be paying an employee for two years to sit at home.

My law partner previously mentioned the Gilbert case in a blog about a recent arbitration case concerning a teacher facing third degree criminal assault charges. The teacher’s union filed a grievance arguing the teacher should been placed on a paid leave while the criminal charges were pending, not an unpaid leave. The arbitrator did not agree and denied the union's grievance.

The decision over whether to place an employee on paid or unpaid status while serious felony criminal charges are pending is a difficult one, and should be made only after a careful analysis of all of the facts in light of the Gilbert case. The decision should be intentional, as the cost to the taxpayers can be very high. Unpaid leave is clearly an option that should not be overlooked by employers.

Third Postponement by The NLRB of The Employee Rights Posting Requirement

Tiffany Schmidt — Wed, 28 Dec 2011 11:55:17 -0600

Apparently, the National Labor Relations Board (NLRB) can’t seem to make up their mind, because just before the holiday weekend it announced another postponement of the effective date for private sector employers to post the notice about employee rights. This is the third time the NLRB has delayed the effective date for the employee rights posting. Most private sector employers whether or not they have a union, were initially required to post the notice effective November 14, 2011. That date was later changed to January 31, 2012, and now the deadline is April 30, 2012.

Here is a link to the poster, which can be downloaded for free from the NLRB website. The poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. The NLRB also has the posting available in 26 other languages for download from their website. If 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language.

This employee rights posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The posting will include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

My law partner, Marylee Abrams and I will be presenting to the White Bear Area Chamber of Commerce on Thursday, February 2, 2012, “Did You Know, Even If Your Employees Are Non-union the National Labor Relations Act, May Apply To Your Business?” We will be discussing who the National Labor Relations Act applies to, the NLRB’s new posting requirement on employee rights, and updates on recent litigation regarding employee use of social media. If you want to learn more about this posting requirement and whether or not your business is required to post the employee rights poster on April 30, 2012, please join us.

Mark your calendars for April 1, 2012 to research if you are required to post the NLRA's employee rights poster at your workplace. If so, be sure to download and hang the poster prior to the April 30, 2012 deadline.

Microfinancing to Grow Small Businesses

Marylee Abrams — Tue, 20 Dec 2011 15:09:26 -0600

I have always liked the quote attributed to Lao Tzu - "Give a man a fish, feed him for a day. Teach a man to fish, feed him for a lifetime." Kiva.org embodies this ideal through global microfinance.

Kiva is an on-line lending platform which allows individuals in the developed world, to make small business loans to entrepreneurs in the developing world. When I opened my law firm in 2008 with my law partner, Tiffany Schmidt, I looked for a symbol of our entrepreneurial spirit, and I found Kiva. To date, I have successfully made 8 loans, including loans to a retail business owner in the Congo, a general store owner in Rwanda, a charcoal sales person in Ghana, a single mother raising chickens in Tanzania, a group of women producing food for sale in Paraguay, and a cattle farmer in Azerbaijan. I was notified the loans had been repaid and today, I made loans to a group of women selling flour and cooking oil in Sierra Leone, a single mother of three with a garment business in Mongolia, and a group of farmers in Kenya to purchase fertilizer and seed for the 2012 planting season.

As my law firm has grown, it has been fun to receive updates on my Kiva loans, and learn about the progress of the global businesses I am helping. Each loan has been for the sum of $25.00, a relatively small amount in western standards, but the global impact has been far greater as people build small local businesses, which in turn help raise their families, and lead to self-sufficiency.

Kiva was started by Mike and Jessica Flannery in 2004. They recognized many people in developing countries had no access to affordable credit. Kiva.org offers loans to handpicked microfinance institutions at 0% interest. These microfinance institutions, in turn screen local applicants, and lend money to individuals at a low interest rate. Updates on loan repayment are provided, and when the loans are repaid, the funds are available to re-loan to another small business enterprise.

During this holiday season, please consider microfinance, and help teach someone to “fish.” The world can be a better place, one small business at a time.

Hot Off the Presses: Boeing Case Resolved

Marylee Abrams — Fri, 09 Dec 2011 14:33:44 -0600

The NLRB just issued a press release reporting the Boeing case has been resolved. You may recall the case was filed as an unfair labor charge in April, in response to public comments Boeing executives made to the press. Boeing was accused by the International Association of Machinists of opening a non-union Boeing 787 aircraft plant in South Carolina, in retaliation for a union strike. Executives commented about the union labor costs in Seattle due to a strike in 2008, in relation to their decision to open the production plant in non-union South Carolina.

The case was long, drawn out, and expensive. Boeing was restricted from production at the new plant as a result of the unfair labor charges. The parties settled a four year labor contract, and the union has withdrawn the charges. After all this time, it appears the parties recognized their mutual interests in protecting the business, which in turn protects jobs for workers.

Court Rules: Governor Dayton Can't Help Organize a Union Through Executive Order

Marylee Abrams — Thu, 08 Dec 2011 10:46:11 -0600

Ramsey County Judge Dale Lindman issued a temporary restraining order this week, halting Minnesota Governor Dayton’s attempt to organize licensed daycare workers via Executive Order. Judge Lindman stated after three hours of hearing, "If unionization of day care is to become the law of Minnesota, it must first be submitted to the lawmaking body of the state." His order remains in effect at least until another court hearing scheduled on Jan. 16, 2012.

What is so unique about the case is that Governor Dayton tried to use his Executive Order powers, to organize the daycare workers. This is contrary to the typical union election which begins with employee interest, followed by union campaigning, and then if there is sufficient support, the Union seeks an election. Minnesota employees have had the right to form and join unions, and enjoyed collective bargaining rights over terms and conditions of employment since the adoption of PELRA back in 1971. (Minn. Stat. 179A. et seq.) This is the first time in my 29 years practicing labor and employment law, where I have seen a sitting Governor call for a union election.

Governor Dayton’s unionizing efforts only applied to the 4,300 licensed family daycare providers who participate in a state subsidized child care program. Judge Lindman indicated an election that leaves out most of the state’s 11,000 licensed providers would be “very harmful,” although he indicated he was not ruling on the merits of the case.

Tim Pugmire, writing for MPR News reported, “Solicitor General Alan Gilbert, who represented Dayton in the hearing, argued that the Executive Order was not an attempt to make law. Gilbert said the Governor was simply trying to enable a dialog about whether child care providers should organize a union.” Tom Copeland, writing for SEIU, one of the unions behind the organizing push, suggests this is much more than an attempt to “enable a dialogue.” In an open letter Copeland used typical union rhetoric stating:

These two unions are working cooperatively for the purpose of bringing new resources and benefits to the family child care field. Their goals include an increase in state subsidy rates, uniform interpretation of licensing rules, policies and procedures, access to affordable health insurance, and more. Successful organizing by these two unions in Delaware, Illinois, Iowa, Kansas, Maine, Maryland, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Washington, Wisconsin, and other states have generated tens of millions of dollars for increased subsidies for low income parents, lower parent co-payments, as well as increased access to training, and a strong voice for family child care at the state level.

There is already a legislative avenue in place if Minnesota employees want to organize and join a union. Licensed daycare providers should follow the same route other employees have taken since 1971. The Governor should not be the front man for AFSCME and SEIU, or their attempts to further their union organizing efforts.

2011 Association of Minnesota Counties Annual Conference and Vendor Fair

Tiffany Schmidt — Wed, 07 Dec 2011 15:03:23 -0600

On Monday and Tuesday, Marylee and I had a field trip out of the office to attend the Association of Minnesota Counties 2011 Annual Conference and Vendor Fair. The Association of Minnesota Counties put on an excellent and well run conference. This is the fourth time we have attended this event. We again enjoyed having the opportunity to chat with all the County Commissioners, County Coordinators, and other County employees about what was new in their counties. This year, Marylee gave a presentation on “How to Lose a Discipline Grievance.” The attendees reported back to our booth they found the presentation both helpful and informative. If anyone who attended the conference did not get the opportunity to drop by our booth, give us a call or drop us an e-mail, we would love to chat with you. See you in 2012!

Black Friday Follow-Up

Tiffany Schmidt — Fri, 02 Dec 2011 13:35:46 -0600

After a lot of publicity from angry employees about opening at midnight on Black Friday, the big box stores didn’t buckle to the pressure, and Target, Best Buy and Kohl’s opened their doors at midnight on Thanksgiving evening. Even though there were numerous petitions circulating online, signed by hundreds of thousands of people telling stores to not open at midnight, it didn’t stop the shoppers from coming out in droves to shop for bargains.

The news stories following Black Friday had less to do with the petitions circulated by disgruntled employees and more to do with “competitive” shoppers. In Los Angeles, a female shopper sprayed a crowd of shoppers with pepper spray in order to clear a path to the display of Xbox video game players. Ten shoppers suffered minor injuries from the pepper spray.

Overall, Black Friday has been a boom for businesses. Reports are that Black Friday sales were up 16% this year from last year. Coupled with the good state fiscal news reporting a surplus of $876 million dollars and today’s improved unemployment numbers things may be looking up.

Hopefully, the employees who started all the online petitions are now focused on doing their jobs and positively contributing to business.

Employer Checklist: How to Make Tough Employee Discipline Decisions

Marylee Abrams — Tue, 22 Nov 2011 11:09:28 -0600

What should I do about a problem employee? Train, transfer, or terminate? Many of our clients struggle with assessing employee misconduct, and knowing how to make good employee discipline decisions. Making the wrong decision can be costly, embarrassing, and damaging to workplace morale. Too harsh of discipline can be just as bad as ignoring misconduct. The goal for all employers should be to reach a reasoned decision, and mete out just the right discipline based on the facts, the record of the employee, and the practices of the workplace.

I am speaking at the Association of Minnesota Counties Annual Conference on December 5, 2011, on employee discipline. The subject of my presentation is “How to Lose a Discipline Grievance.” Most of our public sector clients deal with unionized employees who have grievance arbitration rights to appeal discipline decisions. Arbitration challenges mean an employer’s discipline decision will be carefully scrutinized, and will be subject to testimony and evidence before a neutral arbitrator.

The materials I prepared for the presentation include a checklist for employers. It is designed to be used when facing an employee discipline decision. It covers a wide range of things to consider from the quality of the investigation, to the employee’s personnel record, and the history and practice of the individual workplace. The checklist is based on a review of approximately 40 termination arbitration decisions posted by the Minnesota Bureau of Mediation Services in 2011. Approximately 20 of the termination decisions were sustained, and the other 20 were overturned and a lesser form of discipline was issued by the arbitrator. I paid special attention to the 20 terminations overturned by an arbitrator. The raw numbers indicate about half of the termination decisions were overturned in 2011. A 50-50 success rate is unacceptable, costly, and leaves much room for improvement.

Making an employee disciplinary decision can be difficult, but following good employee management practices can remove some of the guess work. The goal for every employer should be to make defensible decisions which will withstand outside scrutiny. Start with this checklist and seek legal advice when there are questions or uncertainty.

Whining, Sniveling Employee or Protected Concerted Activity?

Tiffany Schmidt — Thu, 17 Nov 2011 15:04:15 -0600

Earlier this fall, my law partner, Marylee Abrams, blogged about several decisions issued by the National Labor Relations Board (NLRB) concerning employee’s use of social media. The NLRB decisions thus far have been very fact specific. Many of the cases have determined the employee’s use of social media was “protected concerted activity” under the NLRA, and therefore protected speech.

Now, employers not only have to worry about what employee’s say about them on Facebook and Twitter, but employees are using the internet to start online petitions to try to influence business decisions. Earlier this month, Anthony Hardwick, a part-time cart attendant with Target in Omaha, Nebraska started an online petition requesting Target Corp. push back its midnight opening on Black Friday to 5 a.m. Mr. Hardwick alleges, “A midnight opening robs the hourly and in-store salary workers of time off with their families on Thanksgiving Day. . . A full holiday with family is not just for the elite of this nation -- all Americans should be able to break bread with loved ones and get a good night's rest on Thanksgiving!” As of today, more than 157,000 people have signed this online petition. Target isn’t the only retailer store who is opening at 12 a.m. on Black Friday; Best Buy Co., Kohl’s Corp. and Macy’s are also opening stores at midnight, and other businesses, including Wal-Mart Stores, Inc. and Toys R Us are opening even earlier than midnight. Petitions similar to the one started by Mr. Hardwick have been started on the Change.org website with the intent to pressure other retailers such as, Best Buy, Old Navy, Macy’s and Wal-Mart to name a few from opening so early.

A Minnesota Target Corp. spokesperson has indicated, Mr. Hardwick is not scheduled to work on Thanksgiving or Black Friday, because he had advised his supervisors earlier this month he was scheduled to work at his full-time job on Black Friday, and needed the day off from Target. Target honored his request.

Target, Best Buy, and the other businesses whose employees have started online petitions against them need to be very careful on how they react to these internet petitions and how they treat the employees who started the petitions. The NLRB could very easily consider these petitions to be “protected concerted activity.”

On the other hand, employees like Mr. Hardwick need to realize they work in retail, and working in retail results in you having to work on holidays. Additionally, there are many other jobs, such as utility workers, hospital personnel, paramedics, fire fighters, law enforcement, jailers, 911 dispatchers, United States military personnel, who are required to work on a holiday, and they don’t get to “break bread with loved ones and get a good night’s rest.” Thankfully, you don’t hear them complaining about it. Thank you to those hard working individuals who are willing to give us their holidays to keep my family and the rest of us cared for and safe!

Veterans Have Extra Rights, But Still Need to Do Their Job

Tiffany Schmidt — Fri, 11 Nov 2011 11:23:56 -0600

Recently, Arbitrator James Scoville agreed a Minnesota employer was free to terminate a Veteran because of the Veteran’s departure from the Employer’s driving principles. Under Minnesota law, a public employer cannot terminate an honorably discharged Veteran without a Veteran’s Preference Hearing. (Minn. Stat. 197.46.) A Veteran’s Preference Hearing may occur before a Veteran’s Board or Panel. Until the Board or Panel issues a decision, the Veteran remains in a paid status with full benefits.

In the case before Arbitrator Scoville, a six year employee of the Minnesota Sex Offenders Program was terminated because of two separate incidents which occurred in June 2011. Both incidents involved the Veteran’s inappropriate responses to Incident Command System Calls. In addition to the 2011 incidents, the Veteran had a discipline record of five separate disciplines in 2010 ranging from an oral reprimand to a 5-day suspension due to unauthorized absences. Arbitrator Scoville found the June 2011 incidents were radically different than the attendance issues in 2010, and the Veteran’s actions departed from the driving principles of the Minnesota Sex Offenders Program. Additionally, each incident came a day after the Veteran was coached about his job performance.

In this case, the Employer did the right thing. They tried corrective actions by coaching and counseling the employee and progressive discipline before resorting to termination. The Employer also documented their actions. Veterans deserve to be thanked for all they do for us, but they aren’t entitled to a free pass when it comes to doing their job. Arbitrator Scoville made the right call here.

Remember to thank a Veteran today!

More Than Sandwiches Being Served At Jimmy John's

Marylee Abrams — Thu, 10 Nov 2011 15:09:40 -0600

Jimmy John’s is well known for their quick sandwich delivery service, eclectic restaurants, and fresh ingredients. Now, they are also known for violating employee rights to organize and join a union.

The NLRB reported the Industrial Workers of the World union tried organizing employees at 10 Jimmy John’s locations in Minneapolis, Minnesota, but lost the election by a vote of 87 to 85. The union filed an unfair labor practice alleging 6 employees of Jimmy John’s were unlawfully disciplined, threatened, and ultimately terminated for engaging in protected union activity.

Many employers are stumped about what to do when employees begin talking at work about bringing in a union. It is clear from this case the wrong thing to do is to take any reprisals against any employee who is engaging in union organizing activity. Some of the union activities raised in the Jimmy John case included, "Disparaging and threatening pro-union employees on Facebook, removing union postings from stores, interrogating employees about their union activities, and threatening mass firings for union organizing."

An informal settlement was approved by the NLRB which provided for a new union election if the union chooses to pursue one in the next 18 months. The employer agreed not to discipline or threaten employees and not to withhold raises due to a union campaign. The settlement agreement must be posted at work areas and must be read to employees either by the company president or by an NLRB employee in the presence of the company president.

Union organizing talk at work is protected activity. Seek legal counsel if employees are contemplating joining a union, to learn about your rights as an employer.

Employees Use Social Media To Quit Their Jobs

Marylee Abrams — Fri, 28 Oct 2011 10:18:06 -0600

Just when I thought I had seen everything, and I didn’t think there were any more new surprises with employees and technology, then BAMMMMM!! I am proven wrong. Employees are now scripting and filming themselves quitting jobs they apparently hate. The YouTube video “Joey Quits,” was recently featured on the Today Show. Joey had worked for several years at a hotel and apparently did not like his job very well. He wrote out his resignation and then got a group of friends with band instruments to go to the hotel to confront his boss. The band played a rousing march tune, while Joey literally threw the resignation notice at his boss. The boss stood there with a deer in the headlights look, as the band played, and Joey marched out of the hotel.

The NBC reporter mentioned Joey already had a new job when he quit at the hotel, but no one mentioned the short-sightedness of his actions in the eyes of future employers. My grandmother warned me against burning your bridges behind you, but apparently Joey didn’t get the same sage advice. Social media should be viewed as carved in stone, and future employers can no doubt search and will find Joey’s little film on the Internet. The video is clear evidence of his lack of maturity, lack of conflict resolution skills, and his complete self-absorption. Unfortunately, Joey is not the only employee to quit a job and then post it on the Internet for the world to see. What’s next with employees and social media? I can’t wait to see.

Dressing Appropriate For Work

Tiffany Schmidt — Thu, 27 Oct 2011 14:53:02 -0600

There is no one-size fits all dress code for a workplace. What is appropriate attire for employees in a workplace varies drastically according to the work being performed, the physical requirements of the job, and exposure to the elements. It is important however for employees to always dress appropriately for the position they are in. Earlier this year, I blogged about the importance of reminding employees about a business’s dress code policy, especially when the seasons start to change.

MSN Careers website had a great article today on the 10 Commandments of Workplace Dress. I completely agree with the ten tips author, Beth Braccio Hering identified in the article. Most of these tips probably seem like common sense, but believe it or not, employees often need to be reminded of these rules. An Employee Handbook is the perfect place for employers to outline a dress code/appearance policy and place employees on notice of the employer’s expectations. By having a dress code/appearance policy in an employee handbook, employers can avoid some of the awkward conversations with employees when they show up for work in sweats and football jerseys.

If you are an employer and you don’t have a dress code/appearance policy or you haven’t reviewed the one you have in awhile, take a moment and do so now. First impressions are important and you want to make sure your employees are leaving the right impression about your business.

NLRB Delays November Posting Requirement For Employers Until January 31, 2012

Marylee Abrams — Thu, 06 Oct 2011 15:33:28 -0600

The National Labor Relations Board postponed implementation for its new notice-posting rule until January 31, 2010. The NLRB reported the postponement was due to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses. “

The NLRB went on to explain the extension followed many queries from businesses and trade organizations indicating uncertainty on whether they fall under the Board’s jurisdiction. Since the posting relies on voluntary compliance of the 11x17 notice, the additional time will help employers to determine if they are covered by the new posting requirement.

Most private sector employers will be required to post the 11-by-17-inch notice. The posting on employee rights is available at no cost from the NLRB through its website, either by downloading and printing or ordering a print by mail. Last time I checked, it was not yet available for download.

For further information about jurisdiction and posting requirements, the NLRB has a Frequently Asked Questions section which is helpful.

Does Your Business Use Checklists?

Tiffany Schmidt — Thu, 06 Oct 2011 09:10:15 -0600

Checklists are a simple and useful tool businesses can employ to make sure steps are not forgotten or overlooked. This week a Florida diving company, RJ Diving Ventures, took a group of tourists out in the open ocean to scuba dive and left two of the tourists behind three miles from shore. The two tourists surfaced to find the charter boat gone, and ended up clinging to a fishing buoy for two hours before being rescued by a passing yacht. RJ Diving Ventures is lucky nothing serious happened to the stranded scuba divers.

Back in 2009, the New England Journal of Medicine published an article outlining the benefits from having a surgical safety checklist implemented in hospitals. The article was based on a one year study occurring in eight hospitals in eight cities throughout the world. The general conclusions were the use of a checklist/cheat sheet reduced patient complications and death.

Many other industries also use checklists including airlines, property management, and manufacturing companies. The use of checklists isn’t just necessary for safety reasons, but can also make work more efficient, because the steps which need to be followed are clearly outlined.

The stranding of two tourist scuba divers should have never happened and was easily preventable. All the crew on the charter boat needed was a simple checklist to review, outlining the necessary steps to take before departing any location, specifically confirming all passengers and equipment are safely on board. All businesses should review their work processes, and determine if having a checklist will ensure important steps are not missed.

Voluntary Worker Classification Settlement Program through the IRS

Tiffany Schmidt — Wed, 28 Sep 2011 11:50:16 -0600

No one likes to be audited by the IRS. I have blogged in the past about properly classifying workers. A friend and colleague of mine, Mary Budge, attorney and author of Budge Law Blog, wrote this week about a new program through the IRS. The program is applicable to employers who are currently treating their workers as independent contractors or other non-employees, and want to prospectively treat the workers as employees.

Ms. Budge writes, “If you feel you have erroneously been treating workers as non-employees or as independent contractors, and fear that there may be severe consequences for doing so, the IRS launched a new program that will enable many employers to resolve past worker classification issues by voluntarily reclassifying their workers. So rather than waiting for an IRS audit, this voluntary classification settlement program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations.”

Taxpayers must meet certain qualifications to be able to participate in the IRS’ Voluntary Classification Settlement Program.

It is important for employers to be proactive when it comes to business issues. For example, having workers properly classified as employees or independent contractors, or having employees appropriately categorized as exempt or non-exempt under the FLSA. If employers take a proactive approach to resolving potential workplace issues, the penalties may be reduced. Don’t wait for the IRS or the Department of Labor to knock on your door, and tell you the things you are doing wrong. Talk to your attorney or accountant and make sure you are doing things right.