Employment Law Blog

Making Sure Your FMLA Policy Covers the Basics

Too often, employers assume that their policies comply with the basic tenets of regulatory provisions and proceed to other details without regular, careful review. This complacency, however, is where mistakes multiply, which can result in costly outcomes. In the case of Tilley v. Kalamazoo County Road Commission, for instance, the court reiterated that failure to review basic FMLA rules and train employees accordingly could lead to an unwelcome result. More >

Employees vs. Independent Contractors: The Consequences of Misclassification

The distinction between independent contractors and employees carries more burdens, consequences, and decisions than ever before. In addition to the tax consequences, there are health care compliance consequences, workers’ compensation consequences, and even intellectual property consequences. Understanding the consequences of misclassification is paramount to properly structure an employer’s workforce. More >

This Party is BYOD, Part Two

The discussion in the last post focused on reasons for allowing BYOD in the work place and some traps to watch out for, which continues below. More >

This Party is BYOD, Part One

The word you’re looking for is “ubiquity.” It describes the near-total assimilation of technology into every aspect of our lives. The words “cell phone” are falling by the wayside as the words “smart phone” take their place, and soon enough the word “phone” might be dropped altogether as a relic of a time when people used them primarily (and ever so quaintly) for actually talking to each other. These relatively recent smart devices are upending the traditional separations between work and home, with uncertain results. For some employers, “bring your own device” (“BYOD”) is considered a boon, allowing employees to stay connected to the workplace at all times through the comfort and convenience of their personal devices. For others, BYOD could be a nightmare, with IT advisory company Gartner calling it, cheekily, “a disruptive phenomenon where employees bring non-company IT into the organization and demand to be connected to everything – without proper accountability or oversight.”[1] Chances are good that the true answer might be a little bit of both as lines continue to blur across the wirelessly-connected workforce. Gartner estimates that as many as 90% of workplaces will have some aspect of BYOD in place by 2017. We’ll explore the reasoning behind BYOD and the pitfalls that can accompany it before delving into what makes for a strong BYOD policy. More >

U.S. Supreme Court Decision in Amazon Worker Security Screening Case is Clear Victory for Employers

Last week, the U.S. Supreme Court ruled unanimously against workers who had sued the agency that provided temporary staffing for Amazon warehouses in Nevada seeking compensation for time spent waiting to go through security screening at the end of the workday. The workers alleged that such screenings could take up to 30 minutes. Amazon disagreed, contending that “employees typically walk through security with little or no wait, and Amazon has a global process that ensures the time employees spend waiting in security is less than 90 seconds.” More >

Telecommuting Employees and Unauthorized Overtime – Must the Employer Pay?

In today’s ever-increasing digital world, more employers than ever are turning to telecommuting to help reduce overheard and increase morale of employees. Importantly, however, state and federal laws apply equally to employers and employees, regardless of whether they work on-site or remotely. Among the most common issues and missteps which affect employers with telecommuting employees are wage and hour laws and, more specifically, overtime laws. More >

Kentucky Supreme Court Decision Drastically Impacts All Non-Compete Agreements

Earlier this year, the Kentucky Supreme Court reversed the Kentucky Court of Appeals’ holding in Creech, Inc. v. Brown, and held, in a landmark decision, that continued employment, standing alone, is no longer sufficient consideration to justify or support enforcement of a non-compete agreement. This reverses prior precedent that employer-employee agreements may be executed in exchange for merely retaining one’s job. While the case has an intricate and complex set of facts, this article focuses on the consideration requirement only, as the Kentucky Supreme Court chose not to address any other issues. More >

Who Owns Your Business’s Social Media Accounts?

Businesses are increasingly relying on social media to establish and grow their products and/or services. While the advantages of using social media are vast (i.e., it is inexpensive, comes with a virtually global audience, and has frequent and immediate contact potential), it does come with risks. Among the dangers is failing to address who owns a social media account. This is very much still an emerging issue in the law, but some existing case law and best practices can provide guidance as to how these ownership cases develop and how they can be avoided. More >

Getting “Sandwiched” Into a Non-Compete Agreement

The Huffington Post recently reported that Jimmy John’s, the national sandwich chain, requires its workers to sign strict non-compete agreements. The agreement was disclosed as part of a lawsuit by employees, and many in the employment industry are wondering if such an agreement is really necessary for the company’s minimum wage workers. These agreements are usually saved for high-level executives or those subject to proprietary information – not the guy behind the counter making a sub. More >

“STOP”: Four Tips For Document Preservation When Facing Potential Litigation

In today’s digital environment, it is crucial that employers act fast when faced with a suit (or the threat of suit) by an employee or ex-employee. When potential litigation is on the horizon, the first step should always be to contact legal counsel. The next step should protecting documentation that might be relevant to the dispute. Keep in mind this acronym to make sure you are following that right steps for documentation preservation:

Search for employees that might possess information pertaining to the dispute. This might include supervisors, managers, or people who shared a workspace with the claimant, but it might also include others not under the direct supervision of the company, such as independent contractors or consultants that worked with the claimant.

Think about all sources of information – smart phones, tablets, cloud-based servers, thumb drives, work email accounts, etc. Once the sources are identified, consider whether you have and can maintain access to them. In some cases, it may require notifying the claimant that he must turn over password information or relinquish his work-issued devices, but it is highly suggested you contact legal counsel before proceeding with this step.

Order a litigation hold on relevant information. Instruct employees to not destruct, forward or edit the relevant documentation in any way. In-house destruction procedures (such as shredding or the automatic email deletion) should be cancelled until further notice from counsel. Litigation hold instructions should be made in writing and provide explicit instructions. The instructions should identify the type of materials and date ranges that are subject to the hold. A litigation hold should also identify to whom questions or concerns about the hold can be directed.

Present all information to counsel. He or she will then determine exactly what information needs to be preserved and for how long. Do not think that you, as an employer, know what information is important. By getting rid of documentation, even without ill intent, you may be hurting your ability to present a defense to the claims.

No employer likes facing employee-related litigation, but it is important to “STOP” and take time to ensure document preservation in the wake or threat of a suit.

Services may be performed by others.

This article does not constitute legal advice.