Posts Tagged ‘Employment’

A Big Mac, large fries, and my vote?!

Thursday, November 4th, 2010

Generally, employers maintain a cohesive work environment with their employees by following the simple rule of social etiquette at a party:  don’t talk about money, religion, and politics.  However, the endless political commercials, nonstop political chatter, and midterm stump speeches may have been just too much for one McDonald’s owner to keep his political views to himself.  


Recently, newspapers reported that earlier this month, the owner of a McDonald’s in Canton, Ohio, attached a pamphlet to the employees’ paychecks urging them to vote Republican candidates for governor, Senate, and Congress.  According to the reports, the pamphlet said: “If the right people are elected, we will be able to continue with raises and benefits at or above the current levels. If others are elected, we will not.”   It then named three Republican candidates after stating, “The following candidates are the ones we believe will help our business move forward.” The only problem is that it’s illegal for an employer in Ohio to attempt to influence the political votes of employees.  However, the political frenzy of the midterm elections isn’t limited to Ohio. 


Here in the Pacific Northwest, some grocery employees of Fred Meyer and Safeway recently complained about having to distribute flyers in favor of Washington’s ballot initiative 1100, which would have allowed grocery stores to sell hard liquor.  While there’s no specific prohibition in Washington, Oregon recently enacted ORS 659.785, which prohibits an employer from taking, or threatening to take, any adverse employment action against an employee for declining to attend or participate in an employer-related political or religious meeting or communication.  The statute also requires employers to post a notice at the worksite advising employees of their rights under the new law.  Of course, the statute doesn’t prohibit an employer from engaging in political or religious activities where attendance or participation is strictly voluntary. 


Therefore, if you’re an employer that’s a dyed-in-the-wool Democrat, Republican, Libertarian, Tea Partier, Green Partier, or an Independent, be smart:   don’t force employees to participate in any religious or political activity.  You’ll be happier and so will your employees.  Yes, the midterm elections are over, but before you know it, the 2012 political organizations will be in full-swing creating a compelling campaign of slogans, speeches, and sound bites.



Unpaid intern or upset employee?

Wednesday, April 21st, 2010

In the current recession, private employers are quickly discovering there’s no shortage of talented and skilled workers in the labor market.  The problem is not finding workers, but paying them.  So, when employers receive stacks of resumes from recent college graduates, many of whom are willing to work as a “volunteer,” some employers have started to bring the eager beavers on board as unpaid interns or trainees.  To these employers, the situation appears to be a clear win-win:  the volunteer intern gains valuable work experience while the employer receives free labor.  The only problem is that it may be illegal.

Under the Fair Labor Standards Act (“FLSA”), a worker cannot “volunteer” for a for-profit employer.  While the FLSA allows for unpaid interns or trainees,  the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has developed the following six factors to evaluate whether a worker is truly an “trainee,” who is not subject to FLSA, or an “employee,” who may be subject to the FLSA:

1.    The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational institution;

2.    The training is for the benefit of the trainees;

3.    The trainees do not displace regular employees, but work under their close observation;

4.    The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5.    The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6.    The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

Often, the difficulty for employers is to show that it “derives no immediate advantage from the activities of the trainee.” Consequently, the unpaid intern—you know, the one who’s been photocopying reams of paper for weeks in the back office—might actually be an upset employee who is eligible for back pay, including overtime payment.  Therefore, despite their good intentions, private employers need to think twice before bringing unpaid interns on board.

New Year’s Resolutions

Wednesday, January 6th, 2010

According to the Chinese zodiac, 2010 is the Year of the Tiger.  No, not that Tiger.  However, that’s one person who definitely isn’t sad to say goodbye to 2009.  In fact, some economic professors have calculated that Tiger’s transgressions infidelity scandal may have cost the shareholders of the companies that he endorsed about $12 billion.  Yes, that’s with a “B.”  When you add that to the cost to his family and personal life, the amount, sadly, is even more.

While the beginning of the New Year is often a celebratory time, we often rattle off our resolutions like they’re part of our weekend chore list:  buy milk, lose weight, pick up dry cleaning, quit smoking, etc.  Perhaps we could get more excited about our resolutions if we spent just a little more time in developing them than, say, Tiger did before partying in Las Vegas. 

Besides the standard healthy lifestyle resolutions, there are other resolutions that you may want to consider from a legal perspective.  For example, in 2010, consider organizing your personal affair by updating your estate plans.  When was the last time you took a look at your will, trust, and advance directives?  Maybe you want to change the beneficiaries you’ve named in your will or insurance policies. And if you’ve never planned your estate before, now is good time because your mind is still sharp as a razor. Okay, maybe your razor is a bit rusty these days, but it still cuts, right?

Also, organizing one’s internal affairs is not limited to individuals.  Employers can get their business affairs in order by proactively conducting an employment audit to identify risky or illegal employment practices.  For example, an employment audit may reveal that your business has neglected to update job descriptions, train managers and supervisors on employment laws, or provide employees with written policies and procedures in an employee handbook. 

Even if a handbook exists, it should be updated annually to reflect changes in the law or policies.  For instance, with the iPhone, Droid, and other gadgets, employees are able to post messages, photos, and videos 24/7 on Twitter, Facebook, LinkedIn, MySpace, YouTube, or on their blog.  Are employees disparaging the company on their blog or posting unflattering videos of a tipsy supervisor from the holiday party?  Employers should consider developing an internet posting policy before sticky situations develop. 

The bottom line is that in our highly litigious society, a little preventative maintenance, in the form of  carefully crafted New Year’s resolutions, can go a long way to improving your bottom line—physically and financially.  That is, if you stick with them.


Thursday, April 2nd, 2009

In 2008, the word on everyone’s lips was “change.”  This year, unforunately, the word seems to be “layoffs.”   And if you’ve grown weary of the media buzzwords “bailouts” and “bonuses,” you’ve probably muttered the word “$#*@%#%$!“  

Hopefully, the worst is behind us and the economy is headed up.  However, if you’re an employer that’s looking at declining revenues or an employee that’s noticing the flow of work significantly slowing down, layoffs might be on your horizon.  For many, it’s unchartered and unpleasant waters.

Before employers start to cut their work force, they need to be aware of the laws that may apply.  All layoffs are not the same.  Some layoffs involve a large number of employees in multiple locations, while some only involve a few employees within one department.  Some layoffs provide severance benefits, some do not.  For example, if an employer provides severance benefits that involve an on-going administrative scheme, the benefits may trigger requirements under the Employee Retirement Income Security Act (ERISA).  Failing to be aware of this Act could be costly. 

And if the employer is instituting a “mass” layoff that involves at least 50 employees at a single site of employment or reduces the hours of work for 50 or more employees by 50 percent or more, the employer will likely need to comply with Worker Adjustment and Retraining Notification (WARN) Act.

Even if the layoffs only involve a small number of employees (e.g., two employees) employers need to be aware of mandatory notice and statistical disclosure requirements relating to release and settlement agreements.  The Older Workers Benefit Protection Act (OWBPA), which applies to workers 40 and over, requires that employers include certain language and follow certain steps to ensure that releases signed by subject workers are made “knowingly and voluntarily.”  If employers fail to follow the requirements, the releases can be, and often are, invalidated.  In such cases, laid-off employees are able to maintain lawsuits against their employers, even though they may have received severance benefits.

Consequently, employers need to plan carefully.  If you don’t, you might end up saying ”$#*@%#%$!” more than a few times.  And in these turbulent economic times, your business can’t afford you saying it even once.