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Employer Law Report

They’re BAAACK: Five things to consider before rehiring boomerang employees

Posted in Traps for the Unwary, Workforce Strategies

Nathaniel S. Butler/NBAE/Getty Images & Mark Duncan/AP Images

As the NBA Season gets ready to tip off, Cleveland is certainly ready. The return of LeBron James to the Cleveland Cavaliers has riveted the sports world and reinvigorated Cleveland. But for employers, this “going home” phenomenon has prompted conversations of boomerang employees — those employees who leave an employer only to return sometime later. This article looks at this relatively-new concept, and outlines what employers should consider before re-hiring a boomerang employee.

When the question used to come up of whether to re-hire a former employee, many employers aligned with one school of thinking: “If you thought the grass was greener on the other side, you can stay there.”

This particular mindset, however, has increasingly becoming the minority view. This attitude shift is forcing recruiters and employers to rethink not only their recruiting strategies, but also their hiring and exit strategies.

This attitude shift seems spurred by four major factors: (1) generational disparity; (2) the economy; (3) changing/expanding gender roles; and (4) skill specialization.

1.  Generational Disparity

Employees born during the Veterans (born before 1946) and the Baby Boomer (born 1946 – 1964) eras would have been far more hesitant to leave one job for another out of fear of being considered disloyal or a job hopper. This is no longer the case. Now the percentage of employees who stay with one employer throughout the course of their careers is extremely low. This became first noticeable for workers in Generation X (born 1964 – mid-80’s). In fact, it seems that when Generation Xers entered the workforce, they abandoned the idea of life-long employment, along with 8-track tapes. This change in ideology did not stop with Generation X, and continued to Generation Y, also known as the Millennials (born mid-80’s to early 2000’s). While many Generation Xers turned to job hopping as a means of survival, Millennials took it further, and turned to job hopping as a means of career advancement.

2.  The Economy

As alluded to earlier, this attitude shift is not based solely on the workers’ personalities — those pesky Generation Xers did not let their listening to too much Nirvana rot their brains — economic factors played a key role.

Baby Boomers have been slower to leave the work force due to financial constraints, meaning there have been fewer advancement opportunities for younger workers to step into. Job hopping is no longer a sign of poor character; it is a career plan, and many Generation Xers and Millennials subscribe to the line of thinking: “The only way to move up is to move on.”

In addition, most private sector employers long ago phased out defined pension plans that rewarded long-term service and replaced them with far more portable 401k plans and the like. With that, a major incentive for long-term employment with just one employer dried up.

Generations X and Y also got to experience the recession that started in 2008. Many workers lost their jobs, lost their homes, and basically saw their lives turn upside down. But one thing these groups had that the Baby Boomers had far less of, student loan debt, and lots of it. The recession changed the way these groups look at things. These groups were taught growing up that if you went to college, you could get a good job with financial security. The recession proved this to be untrue for many new job seekers. For many, higher education is no longer the golden ticket to a good job; now, it has to be viewed as an investment that comes with potential risks just like other more traditional investments, like the stock market and real estate.

3.  Changing/Expanding Gender Roles

This ties into the next factor, changing/expanding gender roles. More women than ever are in the workforce, more families are dual-income, and more women are breadwinners. These changing/expanding gender roles have caused people to leave employment for one reason or another. They move for their spouse’s job, for school, to have children, etc. Some employees also change jobs to have a better work-life balance. This leads some employees to opt for project-type work, rather than a steady 9-5 job. In other words, life happens, and the flexible employers win out.

4.  Skill Specialization

The last factor is skill specialization. The professional workforce has changed, and the demand for employees with specialized skills is high. As such, employees with the covetable skills are constantly offered opportunities. Some employees leave, not because they are disloyal, but because they can and because, these days, money and job flexibility talk. Some employees stay, not because they are loyal, but because they have to. This is just as much the employer’s fault though as it is the employee’s, because employers need to learn how to retain top talent through more flexibility, creative fringe benefit options like onsite day care, etc.

The combination of generational disparity, the economy, changing/expanding gender roles and skill specialization have made life-long employment a thing of the past. The present and the future is the free-agent generation. The good news is that employers seem to be getting on board. To many, leaving a company is no longer viewed as a betrayal, and many companies have changed their thinking about boomerang employees. They no longer see them as “ex-employees,” or “traitors”; rather, they consider them “alumni,” and continue to maintain their connections to these former employees.


There is no denying that there is value in hiring a boomerang employee. The cost of losing an employee and hiring and training a new one is expensive. Studies suggest that hiring a boomerang employee has one of the highest returns on a recruiting investment – 1/3 to 2/3 the cost of hiring a newbie employee. It often makes sense then for an employer to rehire a former worker to offset some of these costs.

Social media sites like LinkedIn make it even easier to keep track of former employees, and it is typically less expensive to rehire them directly and bypass the search and recruitment process altogether. With these employees, employers know what they are getting.

Another advantage with boomerang employees is saving time on training and ramp-up time, and they tend to acclimate more easily as they re-enter the workforce because they understand the organization’s work structure and culture. They may also know most of the key players (if the company has not had a lot of turnover).

Another value, boomerang employees have gotten their chance to see if the grass really is greener on the other side. Returning employees who have gotten to see firsthand that it is not, are many times better workers, more committed, more loyal, and better brand ambassadors.

The Risks

But it is not all positive. There are risks involved in hiring a boomerang employee because not all boomerang employees are created equal, and it is not always the “one that got away” that tries to return. Here are five considerations when deciding whether to return a boomerang employee.

Number 1: Circumstances of the Departure

The number one consideration is to determinate why and how the employee left. Not surprising, employees who left voluntarily on good terms are best suited to return to work, as opposed to those employees who left involuntarily or on bad terms. Did the employee leave because of dissatisfaction with the company, or because of some personal reason, like spouse job relocation, pregnancy, or some other reason?

If an employee left because of lack of growth opportunities, because the employee thought he was underpaid, or because he had a less-than-stellar relationship with a supervisor or co-workers, unless the company has undergone a significant change since the employee left, it is unlikely that the employee’s issues with the company will have resolved or stabilized in a manner that will result in long term, sustained employment.

In addition, if the employee was fired or forced out, they should not be considered for re-hire, unless of course the person or persons who forced them out were discovered to be the source of the problem. Similarly, if an employee left involuntarily because of poor performance, the employer would generally be foolish to rehire them.

Some employers also refuse to re-hire an employee who left to go to a competitor. There may be non-compete issues to consider in this type of situation. It could be become a very expensive rehire decision is if it results in litigation with the employee’s most recent employer.

These considerations are examples of why it is important for employers to conduct and document exit interviews when employees resign or are terminated. An exit interview gives the employee an opportunity to provide the employer constructive feedback about their job, co-workers, supervisors, and the company overall. If the employer documents what the individual said during the exit interview and retains that information, it can be an invaluable resource to refer back to when considering that individual for rehire a few years down the road.

Number 2: Length of Departure

Another consideration is how long the employee was away from the workforce. Employees gone for short periods take less time to train and re-acclimate to the organization, its culture, and the demands of the job given the current organizational climate. Bottom line, the shorter the leave, the more money the company can save.

Number 3: Past Performance

This largely follows Number 1. One reason to keep good employment records is to determine if an employee should be considered for re-hire. Of course no employer wants to re-hire a poor performer or a chronic attendance problem. But for large employers or employers with high turnover, there may be little or no institutional knowledge of an employee’s prior employment tenure. This means, if details about the employee’s prior employment are not in the records, the employer may not discover it.

This is also why it is important for employers to ask on the employment application if the applicant has ever worked for the company before and, if so, why the employee left. If the employee was terminated, it should come out at this time. If the employee lies and is hired, once the lie is discovered, the employee could perhaps be terminated for lying during the application process.

Number 4: Performance at Current Employer and Reason for Returning

During their absence, there is a good chance that boomerang employees have learned new skills, expanded their network, and had other successes. It is important to have a candid conversation with the employee and find out exactly why the employee wants to return. There are right reasons to return and there are wrong ones. If an employee wants to return because the employee misses former colleagues, it is not a good reason. If the employee wants to return because the employee has not had success in subsequent employment, it is not a good reason.

The best case is when an employee wants to return because the employee has had time to learn, grow, develop new skills, and believes the former employer can take advantage of the employee’s newly-expanded skillset and network.

Number 5: Needs of the Company

No matter how great a former employee might have been or currently is, ultimately the decision to re-hire comes down to whether the company needs the skills of the employee, the money to hire the employee, and has a job open for the employee.

In addition, hiring a boomerang can be political, and the re-integration of a boomerang precarious. The players may have changed since the employee left and interpersonal relationships may have changed too. Dynamics may also prove tense if the boomerang leapfrogged over an incumbent employee, who might feel slighted by not getting the job.

On a personal note, I am happy LeBron is returning to Cleveland. When I practiced in Cleveland, I had the pleasure of meeting him a few times. While he was younger then, he was always polite, respectful, and even gracious enough to pose for pictures.

Confused or overwhelmed about the new obligations and regulatory activity related to federal contractors? You aren’t alone.

Posted in EEO

The Office of Federal Contacts Compliance Programs (OFCCP) has been very busy changing the rules for federal contractors and subcontractors. There are 8 new developments from the second half of 2014 that all covered contractors should be aware of:

  1. New scheduling letter released requiring submission of data regarding veterans, disabled persons, compensation, and other items not previously required.
  2. New form for annual submissions about veterans to be used beginning in 2015 (replaces VETS-100A and VETS-100).
  3. Proposed rule to prohibit federal contractors from discharging or discriminating against employees and job applicants for discussing, disclosing, or inquiring about compensation of themselves or others.
  4. Proposed rule on the Fair Pay and Safe Workplaces Executive Order addressing 3 issues: (A) companies bidding for contracts in excess of $500,000 must disclose labor law violations in the past 3 years, which may be used against them during the bidding process; (B) companies with a federal contract in excess of $500,000 must make certain disclosures on employee pay stubs regarding hours and pay; and (C) restrictions on the use of pre-dispute arbitration agreements for contractors with a contract of more than $1 million.
  5. Proposed rule to require an annual Equal Pay Report, with summary compensation data, be submitted by federal contractors with more than 100 employees.
  6. Executive Order 13672 and Directive 2014-02 prohibiting discrimination against sexual orientation and gender identity for federal contractors subject to Executive Order 11246.
  7. Proposed rule on federal contractor minimum wage—$10.10 per hour—for all federal contractor employees, beginning with contracts resulting from solicitations for contracts issued after January 1, 2015. A final rule is due to be published on October 7, 2014.
  8. The benchmark for veterans hiring, required by amended VEVRAA rules, has been lowered from the initial proposal of 8% to 7.2%

1.     New desk audit scheduling letter
On October 2, 2014, the OFCCP issued a new scheduling letter to be used in desk audits beginning October 15, 2014. The new scheduling letter requires individual compensation data as of the date of the workforce analysis in the AAP (rather than aggregate, annualized compensation data). That compensation data must include columns for hours worked, incentive pay, merit increases, locality pay, and overtime. Second, contractors can no longer identify applicants and employees by “minority” and “non-minority” but must provide specific race or ethnicity information. Data must be provided electronically if it is maintained electronically. In addition, OFCCP will require submission of accommodation policies, assessment of personnel processes, and an assessment of physical and mental qualifications. The new scheduling letter also requires new data on veterans (benchmark information and documentation of required audits) and disabled individuals (utilization analysis and documentation of required audits).

2.     VETS-100A and VETS-100 replaced by VETS-4212 in 2015
On September 25, 2014, OFCCP announced that the VETS-100A and VETS-100 will be replaced in 2015 by a VETS-4212 Form. The requirement to report on categories of veterans will end, and contractors will only be required to report on aggregate numbers of “protected veterans” by EEO category.

3.     E.O. 13665 – Prohibiting discrimination for discussing compensation
On September 17, 2014, OFCCP issued a proposed rule implementing Executive Order 13665 prohibiting federal contractors from discharging or discriminating against employees and job applicants for discussing, disclosing, or inquiring about their own compensation or the compensation of another employee or applicant. The proposed rule mandates inclusion of the requirement in covered contracts. The proposed rule also requires that federal contractors incorporate the nondiscrimination provision into their existing employee manuals or handbooks, and disseminate the nondiscrimination provision to employees and to job applicants. There is an exception to the requirement where the employee or applicant makes the disclosure based on information obtained in the course of performing his or her essential job functions—e.g., payroll and human resources employees. Comments on the proposed rule are due by December 16, 2014.

4.     Proposed rule on Fair Pay and Safe Workplaces Executive Order
A proposed rule implementing the Fair Pay and Safe Workplaces executive order was issued September 17, 2014. The Fair Pay and Safe Workplaces Executive Order, issued July 31, 2014, has 3 parts. First, it requires any company bidding for a procurement contract of more than $500,000 to disclose labor law violations that occurred in the past three years. Violations are defined as “any administrative merits determination, arbitral award or decision, or civil judgment.” These violations include OSHA, FLSA, NLRB, OFCCP, federal equal employment (ADA, FMLA, Title VII, and ADEA), and equivalent state law violations. The contracting agency is instructed by the executive order to consider this information in awarding the contract. The contracting agency also must require contractors to update this information every 6 months. If new violations require any remedial measures or compliance assistance, the contracting agency can require such measures or assistance, or in extreme cases, termination or cancellation of the contract or an option on the contract or debarment. Contractors are further required to impose similar disclosure obligations on their subcontractors, where the subcontract is in excess of $500,000, and add language to covered subcontracts requiring disclosures of violations. This information as to subcontractors must be updated every 6 months. The Executive Order also mandates information sharing between executive agencies and labor agencies regarding federal contractors and subcontractors. The Department of Labor is directed to issue regulations to guide other agencies as to whether violations are serious (taking into account the number of employees affected, the severity of the risk or harm, and the amount of penalties), repeated (more than 1 violation of the same or a substantially similar requirement in the past 3 years), willful (knew of, showed reckless disregard for, or acted with plain indifference), or pervasive (depending on the number of violations and size of the entity). The Department of Labor has stated that single violations will not have a preclusive effect on procurement awards in most cases.

Second, the rule requires “paycheck transparency.” Contractors with a single contract for more than $500,000 must disclose—on each employee’s pay stub—hours worked, overtime hours, pay, and any additions or deductions from pay. Hours worked and overtime hours need not be included on pay stubs for FLSA-exempt employees, provided they are informed of this status. This requirement will be placed in all covered federal contracts and must be included in all covered subcontracts. Independent contractors must be informed in writing of their status as an independent contractor.

Third, contractors with a single contract for more than $1 million are restricted in their use of pre-dispute arbitration agreements. Covered contractors may only arbitrate claims arising under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment with the voluntary consent of employees or independent contractors and only after such disputes arise, except where (a) a collective bargaining agreement applies or (b) pre-existing agreements were in place before the executive order. This clause must also be included in federal contracts and covered subcontracts.

A proposed rule was issued on September 17, 2014. Comments on the proposed rule are due December 16, 2014.

5.     Proposed rule to require annual submission of compensation data
On August 6, 2014, OFCCP issued a proposed rule to require contractors with more than 100 employees and a contract of $50,000 or more to submit summary information on compensation. (See our previous post) Specifically, covered contractors would be required to submit total W-2 compensation for each EEO-1 job category for each race, ethnicity, and sex. Contractors would also be required to submit total hours and total numbers of employees by race, ethnicity, and sex. This data would be submitted electronically as a companion to the annual EEO-1 report by March 31st of each year (whereas the EEO-1 report will still be due September 30th) on year-end compensation data for the prior year. The information would then be shared publicly aggregated by industry. According to OFCCP, companies and their employees could use the publicly available data to benchmark their compensation against that of other companies in their industry. Comments on this proposed rule are due by November 6, 2014.

6.     E.O. 13672 and Directive 2014-02 – Gender identity and sexual orientation protected
Executive Order 13672, issued July 21, 2014, amends Executive Order 11246 with regard to any contracts entered into on or after implementing regulations are issued, and protects gender identity and sexual orientation (as new protected classes) from discrimination. Proposed rules should be issued later this month. However, OFCCP issued Directive 2014-02 on August 19, 2014, effective immediately, including gender identity and sexual orientation within its enforcement jurisdiction under protections against sex discrimination—but not adding them as categories for AAP statistical analysis.

7.     E.O. 13658 – Minimum wage changes
On June 17, 2014, the Department of Labor proposed rules for the minimum wage hike for federal contractors, imposed by a February 12, 2014 executive order (Executive Order 13658). (See our earlier blog post) Final rules will be published October 7, 2014. Of note, contractors must include a clause on the minimum wage in all covered subcontracts providing that “Executive Order 13658 – Establishing a Minimum Wage for Contractors, and its implementing regulations, including the applicable contract clause, are incorporated by reference into this contract as if fully set forth in this contract, [with a citation to a webpage that contains the contract clause in full, to the provision of the Code of Federal Regulations containing the contract clause set forth at Appendix A of the regulations, or to the provision of the FAR containing the contract clause promulgated by the FARC to implement this rule].” An additional requirement will be imposed by the final rules, requiring posting a notice to all employees of the minimum wage (the notice is forthcoming). The final rules make it clear that the minimum wage requirement applies to Davis-Bacon Act construction contracts, in addition to those contracts typically covered by rules for federal contractors—supply and service contracts.

8.     New benchmark figure for veterans hiring
The benchmark for veterans hiring, required by amended VEVRAA rules, has been lowered from the initial proposal of 8% to 7.2%. This figure will be updated annually.

With all of the different rules, coverage levels, and obligations, is your head spinning yet?

Join us in Columbus for our Employment Relations Seminar October 30 – Navigating the Workforce Jungle

Posted in Events

Navigating the Workforce Jungle


There is no charge for this seminar; however, seating is limited. Please RSVP by Tuesday, Oct. 28. If you have questions, please contact Erin Hawk.

Thursday, October 30, 2014

8:00 a.m. – 8:30 a.m.
Registration and breakfast

8:30 a.m. – 12:00 p.m.

The Hilton Columbus at Easton Town Center
3900 Chagrin Dr.
Columbus, OH 43219

Add this event to your calendar

Navigating the Workforce Jungle: Spotting the Issues Without Seeing Spots

Do you know what is lurking around the corner? We’ll take you on a safari as we traverse the perilous terrain of today’s workforce jungle, helping you spot the issues you didn’t even know were lurking in your workplace.

Our journey will include:

Trekking Through the Reasonable Accommodation Interactive Process
John M. Stephen and Lisa G. Whittaker
Hidden dangers lurk behind nearly every corner as human resources professionals navigate their way through the interactive process. Each time you traverse this precarious path, you will likely end up at a different destination as no two situations are alike. This presentation will help you spot the important issues when engaging in the interactive process with respect to disability and religious accommodations, and will give you a bird’s eye view of a few real life examples to help illustrate key takeaways for employers.

Avoiding the Thicket: “Wage Theft” Flurry Creates Increasing Threats for Employers
Fred G. Pressley
“Wage theft” is a new name for a familiar threat that is forcing employers to be extra diligent in ensuring they are in compliance with wage and hour laws. The media has “rebranded” this issue and plaintiffs’ attorneys have caught on. This session will help you avoid expensive missteps by demonstrating where these “wage theft” issues are lurking, and help you stay on a clear path.

The Voracious Appetite of the New NLRB: Protecting Your Company from the Newest Employee Predator – Unionized or Not
Michael J. Underwood and Sara H. Jodka
The NLRB has truly become an omnivore – preying on companies regardless of whether they are unionized or not. For non-unionized employers, who have long enjoyed relative freedom from the watchful eyes of the NLRB, this increased scrutiny has become a trap for the unwary. As the role of the NLRB has increased, and continues to increase, companies are now finding themselves trying to determine what constitutes concerted protected activity under Section 7 of the National Labor Relations Act, and what policy of theirs will be the next to be deemed illegal by the NLRB. This presentation will address the newest attacks employers are facing from the NLRB, and offer strategies to help ensure you don’t become caught in the NLRB’s crosshairs.

Be sure to register today!

The latest surge in data breaches highlight key takeaways for employers

Posted in Traps for the Unwary, Workforce Strategies, Workplace Privacy

The recent data breaches at Target, Home Depot, and Jimmy John’s have kept data privacy and security in the news lately. But from a legal perspective, there has never been much that the victims of these breaches could do to obtain a remedy in the absence of actual proof of identity or other theft. Indeed, ever since the U.S. Supreme Court decision in Clapper v. Amnesty International, it has been clear that the mere potential for future injury is insufficient to confer standing on a data breach victim to sue. Instead, the plaintiff must prove that injury is “certainly impending,” a standard that was thought to rule out class action lawsuits arising out of data breaches.

Except in California. Bucking the trend for dismissing class actions resulting from data breaches, a federal court in the Northern District of California in In re Adobe Systems, Inc. Privacy Litigation recently denied a motion seeking dismissal based on a lack of standing. The Adobe litigation arose out of a 2013 hacking that caused a data breach that compromised customer debit and credit card numbers and other personal information. In addition to claims brought under California statutory law, the plaintiff customers, like most of the plaintiffs in other data breach class actions, alleged damages as a result of an increased risk of future harm by identity theft and the cost of mitigating that harm. (The plaintiffs also alleged that they suffered economic injury in the form of lost value of the Adobe products that they paid for, but the court found it unnecessary to address that issue.) Contrary to every other post-Clapper court that has addressed this issue – with the exception of the Southern District of California Court in In re Sony Gaming Networks & Customer Data Security Breach Litigation – the Adobe Court found that the plaintiffs had stated a sufficient claim to establish standing to sue.

First, the court found that the plaintiffs’ complaint contained sufficient allegations of threatened harm to show that injury was “certainly impending.” Specifically, the court noted that “the risk that Plaintiffs’ personal data will be misused by the hackers who breached Adobe’s network is immediate and very real” in that the data was targeted by hackers and that some of it had been decrypted using Adobe’s own systems. The court also recognized that the Plaintiff’s complaint alleged that some of their stolen personal information had already surfaced on the Internet. Under these circumstances, the court stated that “the threatened injury here could be more imminent only if Plaintiffs could allege that their stolen personal information had already been misused. The court found a similar Ohio federal court decision unpersuasive in finding that the potential for injury resulting from a data breach caused by a computer hacking was not “certainly impending.”

Second, the court found that the costs incurred by two of the named plaintiffs to pay for data monitoring services constituted an injury-in-fact. The court found the expenses to be “fairly traceable” to Adobe’s failure to maintain reasonable security measures and that their purchase of data monitoring services would redress their harm.

Hopefully, the Adobe and Sony decisions will not be exported outside of California, but in case they are, here are the takeaways that I see for employers:

  1. A company’s workers can be either the strongest or weakest link in any company’s data security program, they can be the key to avoiding having to respond to these lawsuits. The Home Depot data breach reportedly occurred after employee concerns about the strength of the company’s cybersecurity were ignored by management. A data breach last year at Vodafone was said to have been an inside job.  And let’s not forget about all of the potential data breaches that may occur because employees don’t understand how to identify phishing and other social engineering exploits. Outsourcing certain business functions likewise may not help avoid data breaches. The Target breach resulted from the hacking of Target’s HVAC vendor.
  2. Human resources departments are now at greater risk than ever of being the targets of data breaches, particularly as employers begin to embrace big data for employee selection and placement. The data breach at the University of Pittsburgh Medical Center this past spring resulted from a breach of its payroll system, which exposed the personal information of approximately 62,000 employees.  A lawsuit is pending against UPMC and its software vendor. Recognition that human resources data networks may be vulnerable to hacking likewise will go a long way towards avoiding these lawsuits.
  3. Finally, employers need to remember that their human resources and customer data is not vulnerable to just computer hacking. Sloppy policies and procedures and the lack of enforcement of reasonable policies relating to laptops, mobile devices and portable media also contribute heavily to data breaches.  Close any gaps now.

Is your workplace ready for Fall? Check the Employer Law Forecast

Posted in Porter Wright News


Check the Fall forecast for your workplace at

Porter Wright’s Employer Law Forecast

Fall is here – time for football, back to school activities and planning for the holidays.

For many employers, however, Fall also comes with its fair share of seasonal headaches, including:

Paying employees correctly during daylight savings Holiday pay and FMLA issues during the Fall holidays
Fantasy football in the workplace Voting leave laws during Election Day

To address these and other seasonal concerns, Porter Wright is pleased to share the latest posts on our microsite – Employer Law Forecast, a new way to deliver insightful legal content to readers.

The Employer Law Forecast is an online tool that helps employers and human resource professionals plan for employment law issues that occur seasonally. The site offers visitors a wealth of knowledge on employment law, combining relevant and educational information within entertaining and thought-provoking content.

In the Forecast’s posts, Porter Wright’s attorneys provide analysis and insight into new developments in employment law and provide links to helpful resources.

The Employer Law Forecast is a supplement to the firm’s long-standing Employer Law Report Blog – www.employerlawreport.com. The Forecast’s user-friendly seasonal format makes it easier for human resource professionals to find relevant information before it’s needed, and to serveas a helpful reminder of what employers can expect next.

The Forecast was designed to provide easy access from mobile devices, optimizing the user experience depending on the type of device used to view the site. The Forecast functions like a smart phone app, but is still available on desktop computers, making it easy for readers to find the content they seek without downloading an app.

Click here to view the Forecast and sign up for its seasonal updates.

OSHA modifies rules for reporting of severe injuries and fatalities – updates exemptions from record-keeping requirements

Posted in Workforce Strategies

Recently, the federal Occupational Safety and Health Administration (OSHA) announced a final rule changing requirements for reporting severe injuries and fatalities. The rule also modifies OSHA’s exemptions from its record-keeping requirements. The new rule takes effect January 1, 2015.

In most circumstances, there is no obligation to notify OSHA when there is an injury or illness incurred at work. Employers are required to log work-related injuries and illnesses on OSHA forms. OSHA does inspect those logs when they conduct workplace investigations. But, in most cases there is no general obligation to notify OSHA when an employee becomes ill or injured at work except in two instances.

Employers do have an obligation to notify OSHA within eight (8) hours if there is a fatality at work. Even though the obligation relates to “work-related” fatalities, OSHA interprets the obligation broadly and requires, for example, that every heart attack that occurs at the workplace must be reported, even if the employer feels circumstances suggest there was no work causation. Under the old OSHA regulation, the other circumstance under which an employer was required to notify OSHA was if a single workplace accident resulted in in-patient hospitalization of three or more workers. In that case, notice to OSHA was required within 24 hours.

OSHA’s revised rule keeps intact the obligation to notify OSHA of work-related fatalities within eight (8) hours. The new rule expands the obligation for notice to OSHA of other kinds of workplace incidents. Under the new rule, employers will be required to notify OSHA within 24 hours if a workplace incident results in any in-patient hospitalization, regardless of how many employees are affected, and also in the case of any amputation or the loss of an eye.

The new rule does not change OSHA’s basic obligations for record-keeping. Employers with 10 or fewer employees are still exempt from the basic OSHA record-keeping requirements. However, OSHA has updated the list of specific industries that are exempt from the requirement to keep routine injury and illness records. Certain low-hazard industries have always been exempt from the basic record-keeping requirements. The new rule establishes a new list of exempt industries. The basic OSHA record-keeping requirements will now be extended to some industries that were previously exempt. The list of newly-covered industries includes, but is not limited to, automobile dealers, many retailers, industries providing services to buildings and dwellings, and various amusement and recreation industries. The changes are a result of OSHA switching from reliance on the old Standard Industrial Classification system over to the new North American Industry Classification System.

Join Us In Cleveland On Thursday, October 23 for The Greatest Seminar on Earth!*

Posted in EEO, Employee Benefits/ERISA, Events, Traps for the Unwary, Workers' Compensation, Workforce Strategies
Come one, come all!

 Register here

There is no charge for this seminar; however, seating is limited. Please RSVP by Monday, Oct. 20. If you have questions, please contact
Erin Hawk.

Thursday, Oct. 23, 2014 

7:45 – 8:30 a.m.
Registration and Breakfast 

8:30 – 11:00 a.m.

LockKeepers Restaurant
8001 Rockside Road
Valley View, OH 44125


Come One, Come All!

Feel like a lion tamer or a trapeze artist trying to avoid a risky move or a dangerous misstep? 

Join Porter Wright’s Labor and Employment Group in Cleveland on Thursday, October 23 as we present . . .

The Greatest Seminar On Earth!*
The Circus Is Coming . . . To A Workplace Near You

Walking the Tightrope: Balancing Your HR Decision-Making Process to Reduce Risk
Tracey L. Turnbull

In your role, every day is a balancing act. You face significant challenges where one misstep can put your business at risk. In this session, we will review recent significant judicial and administrative decisions addressing a variety of employment law issues. This review will highlight the best practices and instincts that will keep you in balance and aloft. 

Become the Accommodation Ringleader: Managing Workers’ Compensation and ADA Issues Effectively
Fred J. Pompeani and Leigh Anne Benedic 

Feeling like ADA and Workers’ Compensation issues are a juggling act? In this session, we will help you keep from dropping the ball by discussing key Workers’ Compensation and ADA concerns that any employer might face, and walk you through some of our best practices so you can keep accommodation issues from becoming a circus.

The Healthcare Reform Sideshow Takes Center Stage
Ann M. Caresani

Keeping up with the latest developments in healthcare reform is not a task for the faint of heart. In this session, we will discuss some of the most recent guidance, strategies and issues that employers are dealing with as they strive to get their workforce and their healthcare plans into shape prior to compliance deadlines.

You won’t want to miss this one!

*In our humble opinion

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Circuit Courts remind employers that notice is the key in administering the FMLA!

Posted in Leave Administration, Other Articles, Traps for the Unwary

Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to notify her of the consequences of not turning in an FMLA leave certification. Similarly, in Lupyan v. Corinthian Colleges, Inc., the Third Circuit reversed a summary judgment finding in favor of the employer because there was a factual dispute regarding whether the employer had informed the employee that her leave from work had been designated as FMLA leave and that she had to return to work within twelve weeks or be terminated.

Wallace v. FedEx Corp.

Tina Wallace worked for FedEx in 1986 as a part-time package handler until June 2007, when she was promoted to senior paralegal, and worked under supervisor Rusty Phillips. Shortly after the promotion Wallace suffered from temporomandibular joint disorder (“TMJ”). She suffered with severe headaches, facial pain, chest pain and significant weight loss. Wallace did not inform Phillips of her medical condition. Wallace arrived to work late several times, and Phillips reminded her of the importance of arriving to work on time. Wallace apologized and stated she would try to be at work at or before 9 o’clock. By August, Wallace was struggling to get to work.

In early August, Wallace e-mailed Phillips stating she was not sure what to do and explained she had struggled with whether to tell someone at FedEx about what she was experiencing. Phillips responded to Wallace’s e-mail, encouraging her to keep an open and honest line of communication, so she could successfully perform the job duties of her new position. He also offered to find someone with whom she could comfortably speak about any issues. Wallace missed Monday and Tuesday of the following week, and on Tuesday she e-mailed Phillips stating she would be away from work the remainder of the week.

Wallace returned to work the following Monday, albeit, 90 minutes late. Phillips e-mailed her again about her attendance issues and both agreed to start fresh. The fresh start never happened, however, because the next day Wallace was 30 minutes late. Phillips prepared a written warning documenting Wallace’s tardiness and the on-going attendance issues. On August 15th, Wallace met with Phillips and a FedEx Human Resources Manager to discuss the written counseling. Wallace alerted Phillips and the Human Resources Manager she was having difficulty, in part, because her doctor had adjusted her medication. Phillips gave Wallace three options:

  1. Comply with the attendance policy and complete work assignments in a timely fashion;
  2. Consider taking a period of time for medical leave until she felt capable of adhering to the attendance policy and completing her work tasks; or
  3. Elect to not comply with the work requirements and suffer the consequences of the progressive discipline process.

Immediately following the conclusion of the meeting, Wallace went to a pre-scheduled appointment with her physician. During the visit, Wallace’s physician noticed she was not physically well, and recommended she take off at least two weeks due to her medical condition. The physician stated she would reassess Wallace after the two-week period. Wallace’s physician also indicated her absences on August 7-10 should be excused for medical reasons. Wallace met with Phillips after the appointment and gave him both letters from her physician. Wallace also met with Phillips and a FedEx labor & employment attorney. The three discussed Wallace’s medical leave, and the attorney gave Wallace several FMLA forms. The attorney told Wallace FedEx needed to receive the completed forms within 15 days.

Wallace took the forms to her physician, who completed them by August 20th. The physician also wrote a letter recommending Wallace take an additional three weeks of sick leave. Although Wallace left the physician’s office with the forms and letter, she never turned them into FedEx. The original two-week period came and went, and when Phillips did not hear from Wallace, he tried to call her several times. Phillips kept getting a busy signal, so he emailed her to inform her that her leave had ended and that he had received no additional documentation from her. Phillips also explained that if her physician had provided her with additional sick time, she must notify him of her absences as required by the Company’s policy.

On Tuesday, September 4—seventeen days after receiving the FMLA form, Wallace notified the HR Rep she was on her way to the hospital for emergency surgery on her right ear. The same day Phillips drafted a termination letter ending Wallace’s employment with FedEx. He cited to FedEx’s no-call, no-show policy, which provided that absences on two consecutive work days without notice was a violation FedEx’s attendance policy. Phillips and the HR Rep also left a voicemail for Wallace advising her she had been terminated. The next day Wallace received the letter and the voicemail message and immediately called Phillips, the HR Rep, the General Counsel and Vice President at FedEx. She explained she had a completed medical examination form, but was told it didn’t matter.

The Suit

Wallace filed suit in federal court about six months later, alleging FedEx violated the FMLA by terminating her employment. A few days into the jury trial, FedEx moved for judgment as a matter of law. The trial court denied the motion, finding that a reasonable jury could conclude that FedEx failed to comply with 29 C.F.R. § 825.305, when it failed to advise Wallace of the anticipated consequences if she failed to provide adequate certification within the fifteen (15) day period. After another day of testimony, FedEx moved again for judgment as a matter of law. FedEx argued that Wallace failed to put the company on notice that she was taking FMLA leave. Again, the court denied the motion, finding sufficient evidence in the record to support a reasonable juror’s finding in favor of Wallace. The court then submitted the liability issues to the jury, which found in Wallace’s favor on her FMLA interference claim. Following a series of post-trial motions, FedEx appealed the liability finding to the Sixth Circuit.

Lupyan v. Corinthian Colleges, Inc.

Lisa Lupyan was employed as an instructor in Corinthian Colleges, Inc.’s (“CCI”) Applied Science Management program for approximately three years, when her supervisor, James Thomas, encouraged her to take a personal leave of absence. Lupyan had been suffering with depression. On her request for leave form, Lupyan specified that she was taking “personal leave” from December 4, 2007, through December 31, 2007. Lupyan’s supervisor suggested she take short term disability leave instead of personal leave. Lupyan obtained the necessary certification from her physician, which indicated she had a mental health condition. CCI’s human resources department determined Lupyan was eligible for leave under FMLA rather than personal leave.

On December 19, 2007, CCI’s administrator met with Lupyan and instructed her to select FMLA on the leave form. The administrator also extended her projected return to work date to April 1—three months beyond the original date. The administrator did not explain Lupyan’s FMLA rights during the meeting; however, later than afternoon CCI allegedly mailed a letter to Lupyan advising her that the leave was being designated as FMLA leave. CCI sent the letter by regular U.S. mail.

On or about March 13, 2008, Lupyan informed CCI that she had a return to work release from her physician and planned to return to her teaching position with certain restrictions. Lupyan’s supervisor informed her she could not return to work if she had any restrictions. Lupyan received a full release from her psychiatrist within the next few weeks; however, on April 9, 2008, Lupyan received notice that her position had been terminated from CCI due to low student enrollment, and because she had not returned to work within the 12 weeks permitted under the FMLA.

The Suit

Lupyan filed suit against CCI alleging FMLA interference when CCI failed to inform her that her leave was under the FMLA, and retaliation when she was terminated for taking FMLA leave. The district court granted CCI’s motion for summary judgment as to both claims. Although the district court sua sponte reversed its ruling regarding the FMLA interference claim, CCI provided additional affidavits and support that Lupyan had, in fact, been provided notice that her leave was covered under the FMLA and the district court again entered summary judgment in favor of CCI.

Circuit Courts weigh in

In Wallace v. FedEx Corp. the Sixth Circuit affirmed the trial court’s ruling, finding that FedEx failed to comply with the FMLA notice requirements and that the Wallace’s termination interfered with her ongoing FMLA leave. The Court reminds employers that 29 C.F.R. §825.305(d) states, “at the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” The court found FedEx failed to provide the necessary notice and reinstated the jury verdict.

In Lupyan v. Corinthian Colleges, Inc., the Third Circuit explained that there was a genuine issue of fact as to whether Lupyan actually received CCI’s notice, which had been sent by regular U.S. mail. To prove that it provided proper notice to Lupyan of the consequences of not returning to work within twelve weeks, CCI relied on the “mailbox rule,” which provides that when it is proven that a letter was “either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.” The mailbox rule is not a conclusive presumption of law, rather it is a rebuttal “inference of fact founded on the probability that the officers of the government will do their duty and the usual course of business.” The court explained a strong presumption exists when notice is sent by certified mail, because there is evidence of delivery in the form of a receipt. The court further opined that computerized communications and handheld devices, provide a convenient and cost-effective method for employers to confirm receipt of important notices. CCI employed none of these advanced methods for providing the notice to Lupyan. In addition, CCI could provide no corroborating evidence that Lupyan received the letter, so the court reversed the district court’s grant of summary judgment on the interference claim, and remanded for determination of whether Lupyan received the notice. The court held the employee’s denial of receipt of letter sent via regular mail was enough to create a genuine issue of material fact.


Now is as good a time as any for employers to review their FMLA certification and notice documents and procedures to ensure that they not only include all of the necessary instructions to employees, but also are calculated to provide proof that the documents actually were provided to the employee. The FMLA is very stringent in its requirements and, as the Lupyan court noted, the digital age provides several ways for employers to communicate with employees and to document such communications. Both FedEx and CCI had to learn expensive lessons for not being able to prove that they provided their employees with the necessary notices of the consequences under the FMLA of their failing to act.

Join us on Thursday, September 18 in Cincinnati for a free, half-day seminar

Posted in Events

Join Porter Wright labor and employment attorneys Dave Croall and Rachel Burke on Thursday, September 18, 2014 for a seminar — Renovating your workplace: Employment relations best practices for HR professionals. Reserve your spot today for this free, half-day seminar sponsored by the Ohio Chamber of Commerce’s HR Academy, which will cover these topics:

Tricks of the trade: How the pros deal with an FMLA abuser

Attendees will hear key strategies for managing the primary situations in which FMLA abuse by employees occurs, learn how to counteract that abuse within the confines of the law, and how to avoid pitfalls when doing so. Of particular focus will be how to use the provisions of the FMLA to the employer’s advantage to legally and permissibly root out abuse and fraud by employees.

Danger zone: Avoiding the 10 most common mistakes under the FLSA

Employer compliance with the Fair Labor Standards Act continues to be one of the most litigated areas in employment law. This session will address the 10 most common mistakes made under the FLSA and key takeaways to keep your workplace out of the danger zone.

What’s in your toolbox?

Defining a blueprint for your HR decision-making process to reduce risk: As a busy HR professional, you need to make sure you have the right tools in your toolbox and a solid blueprint for success. One wrong move can put your business at risk. In this session, we will train your HR reflexes to help you navigate the decision making process effectively. We will help you manage each important step, focusing on workplace investigations and other fact-gathering efforts, best practices for making fair and defendable decisions, and the importance of documentation along the way.

Sept. 18, 2014

8:15 a.m. – 12:00 p.m.

Receptions, Inc.
10681 Loveland-Madeira Rd.
Loveland, OH 45140


RSVP by Sept. 16 to:
Andrea Wise


NLRB reinstates food industry employees following work-related complaints

Posted in Labor Relations, Traps for the Unwary

Employees today are certainly more media and marketing savvy than they were even 10 years ago, and they have more tools through which they can reach the public and each other to let their voices be heard. Two recent NLRB cases demonstrate that if employers are too aggressive in attempting to combat these employee communications, they can end up on the wrong end of an unfair labor practice finding.

In Triple Play Sports Bar & Grille, the National Labor Relation Board held that two employees had engaged in protected concerted activity under the National Labor Relations Act (“Act”) when they responded to a co-worker’s post on Facebook complaining that the employer had incorrectly withheld taxes from their paychecks. The error apparently resulted in several employees having an unpleasant surprise on tax day. One employee commented “I owe too. Such an asshole.” The other employee merely clicked on the “Like” button.

The Board concluded that both employees had lawfully engaged in dialogue about terms and conditions of employment and that they had not been “so disloyal as to lose the Act’s protection” because they did not disparage their employer’s products or services or defame the employer. In addition, the Board concluded that the one employee’s use of a single expletive did not deprive him of the protections of the NLRA.

In MikLin Enterprises dba Jimmy John’s, pro-union employees engaged in a campaign to bring public attention to their goal of getting paid sick leave from their employer. As part of their campaign, they created posters that showed two identical looking sandwiches and asked whether the viewer could tell which sandwich was made by the sick Jimmy John’s employee. The point of course was to show potential customers that there was no way to know. The poster then stated that Jimmy John employees were not permitted to call in sick and asked people to call a phone number to encourage the company to provide its employees with paid sick leave.

“Like” the employer in Triple Play (sorry, pun intended), the employer terminated its employees who were involved in the campaign. The Board, in a 2-1 decision, however, ordered the employees reinstated with back pay. The Board concluded that the posters were prepared as part of an ongoing labor dispute, were essentially true, and were not maliciously motivated. Although the dissent agreed that the posters were created as part of an ongoing labor dispute, it disagreed with the majority on the poster’s truthfulness and maliciousness. First, the dissent noted that the employees in fact could call in sick, so long as they were able find a replacement for the day. In addition, the dissent contended that even the intimation that a food industry employer’s food was contaminated was so malicious as to be disloyal.

The bottom line for employers is simply this: While the desire to discipline or terminate employees who say things that feel overly critical or disloyal is certainly understandable, it is important to take a step back and consider whether the communications may be protected under the NLRA. If the communication addresses employees’ working conditions or issues in an ongoing labor dispute, the employer can expect the Board to give the employees the benefit of the doubt except in the most extreme cases where the employee’s comments can be shown to be defamatory or so disloyal as to lose protection under the Act.