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Category Archives: Traps for the Unwary

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Are You Ready, Baby? March Madness = Workplace Madness

Posted in Employment Outtakes, Other Articles, Traps for the Unwary, Workforce Strategies

The NCAA men’s basketball tournament, a/k/a March Madness, kicks off Sunday, March 15 with Selection Sunday, then rolls on Tuesday, March 18 with a couple of play-in games and then on to the actual tournament, which begins Thursday, March 20. The brackets, the gambling, the office conference rooms dedicated to the games, the continual online streaming of games, the excitement…it’s all here! And with Warren Buffet recently announcing he will give $1 billion to anyone who can pick a perfect bracket, the stakes just got higher! While the Billion-Dollar Bracket may be new this year, March Madness, Super Bowl …


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U.S. Supreme Court extends whistleblower protection to employees of a public company’s private contractors

Posted in Traps for the Unwary, Workforce Strategies

Editor’s Note: This recent post from our sister blog – Federal Securities Law Blog – highlights one of the important employment law cases that the U.S. Supreme Court will address this year. As Kelly Johnson explains, the Court’s decision in Lawson v. FMR LLC extending whistleblower SOX whistleblower protection to employees of contractors and subcontractors of public companies greatly expands the scope of SOX’s reach. Indeed, the Court refused to limit its decision to private companies whose actions contributed to shareholder fraud because the requisite facts were not properly before it. As Justice Sotomoyer noted in her dissenting opinion, the


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Avoid Picking Up the Pieces of a Broken Heart with a Love Contract

Posted in Traps for the Unwary, Workforce Strategies

Valentine’s Day is drawing near. You know, that magical time of the year when bad tasting, heart-shaped confections and red roses are everywhere you look, including the workplace. Of course, an employer’s non-fraternization policy will do little to stop two adults from taking their relationship to the next level. Though office relationships on occasion may lead to good  things for the employees involved like diamond ring purchases, white weddings, and gender-neutral nursery décor, more frequently they lead to problems for employers such as claims of favoritism, reduced productivity, ethical problems, and sexual harassment claims, just to name a few.

Even …


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Hunka Hunka Burning Love. How Employers Stop the Heartburn of Workplace Romances and Avoid Litigation

Posted in Traps for the Unwary, Workforce Strategies

In honor of Valentine’s Day, we have a two-part series on workplace romance. Next week, we will have a featured post on love contracts in the workplace.  Stay tuned!

With Valentine’s Day approaching, it is a good time to remind employers that dear old Cupid is alive and well, and strutting his stuff in the workplace. I won’t bore you with the statistics about how many romantic relationships blossom in the workplace, and how many of those end up in marriage or crash and burn like the Hindenburg. As many employers already know, it is not just the parties actually …


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Sometimes An Employer Just Can’t Win

Posted in EEO, Leave Administration, Traps for the Unwary, Workforce Strategies

In Deleon v. Kalamazoo Cnty. Road Comm’n, a split Sixth Circuit panel concluded that the district court improperly granted the employer summary judgment on the plaintiff’s discrimination claims despite the fact that the alleged adverse employment action was a transfer that the plaintiff had actively sought only nine months earlier.

Robert Deleon (“Deleon”), a 53-year-old Hispanic male of Mexican descent was employed with the Kalamazoo County Road Commission (“Commission”) for 28 years. Deleon was an “Area Superintendent” and had generally received positive reviews. When an “Equipment and Facilities Superintendent” position opened up in November 2008, Deleon applied. The working …


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Oh the Weather Outside is Frightful! How Employers Can Handle the Impact of Inclement Weather (Polar Vortex Anyone?) and What NIOSH, OSHA, the NLRA and the FLSA Have to Say About It

Posted in Leave Administration, Traps for the Unwary, Workforce Strategies

For some, snowflakes bring thoughts of snowmen and sleigh rides. For others, they signal the beginning of closed business days, employees arriving late to work, and all sorts of other issues—all the result of inclement weather! Since many parts of the United States are currently dealing with the effects of, what-is-being-called, the “Polar Vortex,” we decided to take a look at some common headaches for employers caused by bad weather and provide you with some helpful guidance.

The National Institute for Occupational Safety and Health Addresses Cold Stress

Extreme cold temperatures have disastrous effects on humans and their ability to …


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Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful Exceptions for Employer Background Checks and Workplace Investigations

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

It should be old hat by now: Employers who use a third party to conduct a background check on an applicant or employee for employment purposes must comply with the Fair Credit Reporting Act (FCRA). But what many employers do not know, or may have forgotten, is that the Fair and Accurate Credit Transactions Act (FACTA) also imposes upon them some obligations when conducting a background investigation. (A background of the FCRA’s general requirements for employers is necessary to understand the FACTA’s implications, which we have outlined for you here.)

So what is the FACTA? As of December 4, …


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When Employee Taunts Employer via Facebook to “FIRE ME. …Make my day. . .” NLRB Memo Concludes the Employer Can Go For It

Posted in Labor Relations, Social Media, Traps for the Unwary, Workforce Strategies

The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME … Make my day …"

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social …


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Don’t Expect Any New Right-to-Work Legislation in Ohio…Until Perhaps After 2014

Posted in Labor Relations, Traps for the Unwary, Workforce Strategies

First it was Wisconsin. Then Indiana. Then Michigan of all places. Right-to-work legislation is being considered, and in some cases passed, by legislatures throughout the Rust Belt. Given that trend, and the economic benefits to businesses and the state that follow with right-to-work, it was only a matter of time before regional pressures led the Ohio legislature to consider the idea notwithstanding the previously failed attempts on Senate Bill 5.

Just recently, two Ohio House of Representatives members, Kristina Roegner (R-Hudson) and Ron Maag (R-Lebanon), announced they are sponsoring bills that would enact right-to-work for both the public and private …


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OFCCP Enforcement and Regulatory Agenda Heightened for Fiscal Year 2013

Posted in EEO, Traps for the Unwary, Workforce Strategies

Federal contractors and subcontractors should take notice that, in the last couple of years, the Office of Federal Contract Compliance Programs (OFCCP) has been pursuing a much more aggressive enforcement and regulatory agenda. Final revised rules on disability and veterans affirmative action are expected soon. Later in 2013, proposed new rules for construction contractors and gender discrimination are expected. We will post to this blog when these are available.

As we are awaiting these new regulatory frameworks, it should be noted that OFCCP has also been conducting more in depth and more aggressive compliance evaluations of federal contractors and subcontractors. …


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Facebook Account Deactivation Leads To “Spoliation Instruction”

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

Our colleagues over at Technology Law Source advise today of an interesting case in which a New Jersey federal court held that a plaintiff in a personal injury lawsuit failed to preserve relevant evidence when he deactivated his Facebook account and failed to reactivate it within fourteen (14) days – which according to Facebook’s terms and conditions renders the account’s contents irretrievable. As a result, the court found that the defendant was entitled to a jury instruction that permits the jury to infer that “the fact that a document was not produced or destroyed is ‘evidence that the party that …


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Why You Can’t Delete Your Way Out of Your Social Media Mess

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

Naked pictures? Drunken celebrations? Sexist comments? A click of a button and all evidence of your "Weekend at Bernie’s" can disappear. Job seekers know to scrub clean their Facebook pages before they connect with potential employers, to remove all trace of their off-color on-line life. But here in Ohio you can’t delete your way out of the mess you created through social media. Employers can legally ask employees and recruits to surrender their social media passwords, and thanks to Facebook’s newly expanded access program, the result is a stunningly deep portal into private messages, deleted posts, photographs and everything you …


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SHOCKING NEWS!! We Are Spending Too Much Time Surfing The Web For Personal Reasons at Work. What To Do About These Cyberloafers??

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

According to a news release issued by the university, a Kansas State University study to be published in the journal Computers in Human Behavior concludes that between 60 and 80% of the time spent by people on the internet at work has "nothing to do with work." The study, which was profiled this morning on The Today Show, suggests that "cyberloafers" come in all ages. According to one of the researchers, "Older people are doing things like managing their finances, while young people found it much more acceptable to spend time on social networking sites like Facebook."

Certainly, while …


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Social Media Firing of the Week. (Final Score: God 10 – Waitress 0)

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

The Internet is burning up this morning with the story of an Applebee’s waitress who was fired for posting on Reddit, a social news and entertainment site, the receipt from a customer who gave her no tip on a $35.00 check, writing "I give God 10% why do you get 18?" Unfortunately, the waitress did not obscure the customer’s signature when she posted a picture of the receipt, which naturally set off a firestorm of Reddit users and others on the Internet attempting to identify the customer. The customer apparently then contacted Applebee’s and demanded the waitress’s termination.

While there …


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Be Careful What You Dismiss as Not a “Real” Religion When Employees Seek Religious Accommodation: Court Holds Veganism Could Plausibly Be a “Religious Belief”

Posted in EEO, Traps for the Unwary

In a recent decision in Chenzira v. Cincinnati Children’s Hospital Medical Center, Case No. 1:11-cv-00917, the U.S. District Court for the Southern District of Ohio in Cincinnati held that sincerely held beliefs in veganism could plausibly be considered religious beliefs protected against religious discrimination under Title VII of the Civil Rights Act of 1964 and Ohio state law. The Court rejected the argument that veganism was merely a social philosophy or dietary preference.

Sakile Chenzira was a customer service representative for Cincinnati Children’s Hospital for over 10 years. In 2010, the Hospital terminated Chenzira for her refusal to be …


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Sometimes It Is Best to Bite Your Tongue! Sixth Circuit Holds University’s Diversity Interests Outweighed First Amendment Right to Freedom of Speech

Posted in EEO, Traps for the Unwary, Workforce Strategies

In Dixon v. Univ. of Toledo et al., the Sixth Circuit Court of Appeals has held that a high-level human resources official who writes publicly against the policies her government employer charges her with creating, promoting and enforcing, is not engaging in protected speech. Crystal Dixon, an African-American woman, who was the acting Interim Associate Vice President for Human Resources at the University of Toledo ("the University") when she penned a riveting op-ed column rebuking comparisons between the civil-rights and gay-rights movements. The piece ultimately led to her termination.

On April 4, 2008, Toledo Free Press Editor-in-Chief Michael Miller …


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‘Tis the Season For Holiday Workplace Issues – Download our Holiday eBook with FMLA Stocking Stuffer – “Three FMLA Holiday Stocking Stuffers: How to Avoid a Big Lump of Coal”

Posted in Leave Administration, Traps for the Unwary, Wage & Hour, Workforce Strategies

We hope you enjoyed our five-part series last week addressing the Top 5 Holiday Headaches for Employers. Due to popular demand, we have compiled this series into an eBook for you and have added a special bonus:

Three FMLA Stocking Stuffers: How to Avoid a
Big Lump of Coal

We couldn’t do a holiday-blog series and NOT include something about every employer’s favorite holiday topic. Like fruitcake, it is a gift that nobody really wants or knows what do with… the FMLA.

Here we tackle three prickly FMLA-holiday questions. First, do holidays count against an employee’s FLMA leave entitlement? Second, …


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‘Tis the Season for Holiday Workplace Issues. Day 5 – What If Santa Was The One That Got Run Over By a Reindeer?

Posted in Traps for the Unwary, Workers' Compensation, Workforce Strategies

It is important not to require employee attendance at holiday parties and that pressure to attend is properly managed. Mandatory attendance at company-sponsored functions, like holiday parties, can result in workers’ compensation claims if an attending employee is injured. It can also mean that the employee is entitled to be compensated for his or her time spent at the event pursuant to the Fair Labor Standards Act ("FLSA").

For workers’ compensation liability, if the employee is required to attend a company-sponsored event, or there is significant business that takes place at the event that essentially makes attendance mandatory, then the …


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‘Tis the Season for Holiday Workplace Issues. Day 4 – Holiday Pay and How Not to Get Scrooged by the FLSA

Posted in Traps for the Unwary, Wage & Hour, Workforce Strategies

Many employees believe they are entitled to holiday pay, even if they do not work on the holiday. This is not the case. In fact, neither the Fair Labor Standards Act ("FLSA") nor most state laws, including Ohio, require a private employer to pay hourly employees for working or not working on holidays (federal or otherwise).  (For employers in Massachusetts, however, be sure to check your Blue laws.) This type of pay, if provided, is typically considered a fringe benefit and is a matter of agreement between an employer and an employee (or the employee’s union representative). Please note that …


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‘Tis the Season for Holiday Workplace Issues. Day 3 – “Holiday Attire” Does Not Include “Beer Goggles”

Posted in EEO, Traps for the Unwary, Workforce Strategies

So the question on everyone’s mind when it comes to holiday parties: Will alcohol be served? For employers this is a big decision and, depending on where the holiday party is held and how it is contained, one that may come to expose an employer to liability. For the most part, whether an employer can be held responsible for alcohol-related incidents at or after company-sponsored events depends on the state in which the party is held and the circumstances.

First things first: If the event involves a business purpose that can be considered to have a direct effect on the commercial …


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‘Tis the Season for Holiday Workplace Issues. Day 2 – Being Inclusive Without Being A Grinch

Posted in EEO, Traps for the Unwary, Workforce Strategies

Religion is also a hot-button workplace issue in December because so many different religious groups celebrate different holidays in December. For example: Christians commemorate the birth of Jesus at Christmas; Buddhists celebrate Buddha’s Enlightenment with Bodhi Day; Jewish people celebrate Hanukkah, the Festival of Lights; African-Americans celebrate Kwanzaa, Muslims celebrate Eid al-Adha, or the Feast of Sacrifice; Seinfeld enthusiasts celebrate Festivus, and there are many others.

Federal and state laws prohibit discrimination and/or harassment on the basis of religion. This means that an employer cannot treat persons of different religions differently or appear to favor one religion over another. …


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‘Tis the Season for Holiday Workplace Issues. Day 1 – Avoiding Holiday Party Liability When the Office Santa Tries to Teach His Employees a Few “Reindeer Games”

Posted in EEO, Traps for the Unwary, Workforce Strategies

As much as everyone loves them, the holidays create increased risk of employer liability and can result in a long list of legal problems for an unprepared employer. As our holiday gift to you, we’ve put together our top five holiday headaches for employers, which will be provided to you in a week-long series starting today.

Numero uno on our list: Sexual harassment at the office holiday party. Who doesn’t have at least one inappropriate office holiday party story? If you don’t, you’ve at least heard a couple doozies. The mix of sparkly outfits, tasty snacks, free-flowing libations and people …


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United States Supreme Court: A Challenge To The Enforceability Of A Non-Competition Agreement Must Be Presented To The Arbitrator, And Not A Court, If The Contract Contains An Arbitration Provision

Posted in Business Competition, Traps for the Unwary, Workforce Strategies

In Nitro-Lift Technologies, L.L.C. v. Howard, the U.S. Supreme Court this week held that if a contract contains an arbitration provision and there is a challenge to the validity of the contract, it is for the arbitrator and not a court to hear that challenge. The case is important for employers because the challenge was to the validity of a non-competition agreement. More specifically, the Supreme Court held that if a contract contains an arbitration provision, it is up to an arbitrator, and not a court, to determine whether the non-competition provision of the contract runs afoul of a …


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Not So Fast … CFPB Issues Revised Forms for FCRA Compliance by January 1, 2013, First Ones Contained Typos and Other Errors

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

As we reminded you last month here, the Consumer Financial Protection Bureau ("CFPB"), the agency that has enforcement responsibility over the Fair Credit Report Act ("Act"), revised the forms which employers must use to comply with the FCRA, effective January 1, 2013. There was only one little problem with the forms the CFPB provided for use: They contained various typos and technical errors that the CFPB now has recognized in its Supplementary Information in the November 14, Federal Register Notice.

The forms at issue:

  • The Summary of Consumer Identity Theft Rights;
  • Summary of Your Rights Under the

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