Monthly Archives: August 2013

OHIO COURT FINDS FMLA IS SUBJECT TO ARBITRATION AGREEMENT IN MORGAN v. UNITED HEALTHCARE SERVICES, INC.

Just because your employees have agreed to settle any disputes through arbitration rather than a lawsuit doesn’t mean that they actually will.  Despite clear arbitration agreements, employees sometimes try to get their day in court, subjecting the employer to lengthy and expensive litigation.  Generally, the argument for avoiding the arbitration agreement goes something like this:  “I know that I agreed to arbitration, but this claim is not subject to my agreement.”  A federal district court in Ohio recently shot this argument down, holding that the plaintiff-employee was bound to her arbitration agreement.  Furthermore, the fact that the employee alleged a violation of the Family and Medical Leave Act (FMLA) did not matter.  The court held that FMLA claims are arbitrable.

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RESTRICTIONS BEYOND THOSE CONTEMPLATED UNDER THE FMLA

If you are an employer subject to the Family and Medical Leave Act (“FMLA”), then take a couple of minutes to keep reading.  In Curry v. Goodwill Industries of Kentucky, Inc., a federal court in the Western District of Kentucky recently addressed, among other things, the extent to which an employer can effectively implement company policies that restrict an employee’s FMLA rights beyond what the Act expressly allows.  For those of you who like a really short answer, here it is: You can’t do it.

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STEPTOE & JOHNSON FALL LABOR SEMINAR SERIES SET TO BEGIN SOON

You read this blog because you know that it’s critical to keep up with emerging issues in labor and employment law.  If you’re interested in a deeper discussion of a few hot HR topics, consider joining us for the 2013 Steptoe & Johnson Fall Labor Seminar Series.  We offer these seminars in several cities each fall as a free service to clients and friends of our firm.  Topics this year will include a discussion of how to win (or lose) an employment case, an advanced look at the FMLA, and pointers on how to avoid drowning in the growing wave of wage and hour litigation. 

If you’re accustomed to seminars where discussions of labor and employment law are premised on (boring) outlines of statutes and regulations, you’ll find this one to be different.  We’ll base our discussions on real-world factual scenarios and help you see how the law applies instead of just telling you what it is.  We think you’ll find this new approach to be more interesting and helpful.  We’ll also give you a nice lunch, and you’ll get to spend some time with a fun bunch of people.  (Yes, lawyers can be fun people). 

The seminars will run from 10 a.m. to 3 p.m. on the dates listed below.  We hope you’ll join us.  To request an invitation, simply click here

• September 12 – Canonsburg, PA at the Hilton Garden Inn Pittsburgh/Southpointe

• October 2 – Morgantown, WV at the Waterfront Place Hotel

• October 30 – Martinsburg, WV at the Martinsburg Holiday Inn

• November 22 – Beckley, WV at Tamarack

HOW THE EEOC’S SCRUTINY OF BACKGROUND CHECK PRACTICES HAS EMPLOYERS BETWEEN A ROCK & A HARD PLACE

This shouldn’t be a newsflash, but employers have been performing background checks as part of the hiring process for quite a long time.  Lately, the practice has become even more common, since information is more readily available in the internet age.  Most employers use these checks to help ensure they hire the best qualified employees; some employers are required to use them under federal or state regulations governing their industries.

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CALLING ALL VOTERS! CALLING ALL VOTERS!

Today is the last day to nominate our blog for the American Bar Association annual top 100 legal blawgs.  If you’re willing to look past our shameless solicitations because you appreciate our content at Employment Essentials, kindly take 1-2 minutes to go here and nominate us.  Today, August 9, 2013, is the last day to nominate blog candidates.

We promise not to let the adulation go to our head if we are chosen by the ABA.  Not completely, anyway.

In all seriousness, and as always, thanks for reading.

LIKE OUR BLOG? NOMINATE US FOR THE ABA TOP 100 BLAWG ROLL!

Regular readers of this page know that the American Bar Association has a contest each year where they select the top 100 legal blogs (blawgs) throughout the country.  With that recognition comes honor and adulation, not to mention a piece on their website and a nice feature in their monthly magazine, the ABA Journal

If you’re a fan of our content for its legal and employment insight or humor, if you enjoy Vanessa’s column, or if you appreciate our occasional free download content, or for any other reason, kindly take just 1-2 minutes to nominate the Employment Essentials blog.  You can do that by going here.  We’d be very grateful for your nomination.  We’d be especially thankful if you do it quickly, since nominations close this Friday, August 9. 

The Employment Essentials team and the folks on their Twitter side (@SJEmpEssentials) thank all of their loyal readers for the support.

WILL VINE ENTANGLE YOUR WORKPLACE?

If you want to stay on the cutting edge of social media, just ask your kids.  The latest obsession in my household is Vine.  If you haven’t heard of it yet, don’t worry.  You will.  Vine is essentially video Twitter.  Users make 6 second videos that are uploaded for mass consumption quickly and easily.  The videos play in endless loops that have the potential to induce insanity.  And if your workplace users aren’t just demonstrating their time-traveling powers like my boys are, the potential hazards of Vine for you as an employer are likely to take the definition of insanity to a whole new level.

Let’s begin with a brief informative tutorial provided by my 10 year old son, Josh: Vine is an app that you must upload to your smart phone.  Like Twitter, you have a home that houses your videos.  You can also follow others on Vine, and like Twitter, their posts will appear on your profile page.  To record a video, just hold your finger on the screen or lift it up to stop recording (according to Josh, that’s how you time travel or teleport).  Once you’re satisfied with your product, you have the option to place a caption on your video.  Hashtags are encouraged.  Don’t forget to identify your location.  Then, it’s ready for viewing, viewer comments, and re-vining (sharing). 

Nervous yet?

The first set of concerns about Vine for employers involves viewing issues.  Procrastination in six second bursts is still procrastination.  Because Vine is quick and addicting, your employees’ productivity could be impacted by viewing Vines.  Vine does not have a website (yet), so all of the action is taking place on the phone.  Many employers do not provide their employees with phones, so policies on the use of employer equipment and discipline for misuse of that equipment aren’t going to cover Vine use.

Thankfully, other policies may (should) cover the issues raised by employees spending time at work viewing Vines.  Your anti-harassment policy may prohibit the viewing of Vines that constitute harassment on the basis of protected status.  Your policies on working time and personal phone use may also capture Vine use issues.  You should probably review these policies to ensure that they are broad enough to cover this latest, greatest social media platform.

The second set of concerns for employers is much bigger, and involves creation.  How much damage can an employee do creating a Vine in six seconds while at work?  Get comfortable.  Policing Vine use is difficult due to the brevity of the action, but in six seconds, employees could display classified documents, rant about their job, co-workers, or customers, harass and discriminate, and breach the privacy of others. 

Vine may also present safety concerns.  There are posts of employees operating heavy equipment at work.  Six seconds is plenty of time for an accident to occur.  As if accidents and injuries aren’t enough of an employer concern, now they may be preserved on video.  The worst part of all this is that your employees can do everything I mentioned while identifying their location as your workplace.  This is why it’s vital to make sure that your policies covering these concerns are broad enough to encompass Vine misbehavior. 

While Josh has informed me that Vine is “made specifically for comedy,” there are other uses, and not all of them are bad for employers.  Vine is being used successfully for marketing and advertising purposes.  It can allow an employer to showcase a new product, highlight a recent success, or promote a brand.  Vine is also being used to humanize a business with its constituencies.  You can conduct attention-grabbing tours of your facility, engage your followers in discussions about shared interests, promote contests, and share the culture and history of your business. 

Better still, Vine can be used to make boring business events more interesting.  You can engage your new employees by using Vine to introduce them to your business and their co-workers during orientation.  You can add life to presentations by including Vine clips.  You can pass company information along to your employees using this entertaining format to get their attention and ensure that the information communicated is being heard.

Vine was released in January 2013, and like most vines, it’s going to grow.  Being aware that it exists is the first step to controlling its impact on your workplace, both good and bad.  Are any of you using Vine?  Let us know.  We’d love to hear your Views on the pros and cons of Vine at work.