Coke Freestyle Demo
Friday, July 31, 2015
These Written Warnings Were Totally Worthless
By: Thomas Eden
Maurice Goudeau began his career in 1993 as a mechanic and
millwright. He was later promoted through the ranks and obtained the position
of maintenance supervisor. When his Company was acquired by National Oilwell
Varco (NOV) in 2008 Goudeau continued to be employed as a maintenance supervisor
at NOV’s
Conroe, Texas facility
until he was terminated in 2011 at the age of
fifty-seven.
Goudeau’s new boss with NOV (according to Court the findings) allegedly repeatedly made negative
comments about old people. He said Goudeau wore “old man clothes,” called him
an “old fart,” and said a smoking area was “where the old people meet.” The
supervisor also made a comment that “there sure are a lot of old farts around
here” during a conversation in which he asked Goudeau about the ages of two
other employees. After hearing their ages, he said he was going to fire them.
The boss followed through on that statement and ultimately fired two of the
three “old farts,” including Mr. Goudeau. He couldn’t fire the third only
because he left the company for another reason.
NOV claimed that it fired Goudeau because of his poor
performance after written warning. Those complaints about Goudeau only started
with this new boss after 18 years of a solid work record. Goudeau’s signature
did not appear in the employee acknowledgement section of any of the last three
warning forms.
The final three warnings involved duties that Goudeau
claimed were not his responsibility. And those written warnings sure were
suspicious because all three warnings were signed by his supervisor on the same
date even though the infractions supposedly happened on different days, according to the Court filings. None of
the warnings were signed by Goudeau.
The case later landed before the U.S. Fifth Circuit Court of
Appeals which held that any ageist remark be proximate in time to the
terminations, made by an individual with authority over the employment
decision, and related to the challenged decision, and then those comments may
only serve as sufficient evidence to allow a jury to find discriminatory motive
if they are not stray, but instead are tied to the adverse employment action at
issue both in terms of when and by whom they were made. Here they found the alleged “old
fart” comments justified sending this age discrimination case to the jury.
Common Sense Counsel: This case teaches employers four
lessons according to my law partner Robin Shea who did a firm blog a few days
ago on this case: 1) Don’t call your employee an “old fart,” especially if you
think you may need to fire him someday; 2) don’t call his co-workers “old
farts” right before you fire the co-workers; 3) don’t give your “old fart,” who
has only a first-level warning on his record, three “progressive” warnings on
the day that you fire him-that the employee has never been presented; and 4)
don’t try to invoke “employment at will” to justify any of the above. Because
the written warnings were unsigned, the court found them to be worthless
evidence.
Tommy
Eden is a partner working out of the Constangy, Smith & Prophete, LLP
offices in Opelika, AL and West Point, GA and a member of the ABA Section of
Labor and Employment Law and serves on the Board of Directors for the East
Alabama SHRM Chapter. He can be contacted at teden@constangy.com or
334-246-2901. Blog at www.alabamaatwork.com with downloadable written warning form.
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Friday, July 24, 2015
Ticketing Trespassing Union Protesters Lawful
By: Thomas Eden
In
February 1999, an ongoing battle between
the Venetian, a Las Vegas luxury hotel and
casino complex, and two labor unions came to a head. The Nevada Department of Transportation had issued the unions a permit
to hold a demonstration against the Venetian on the temporary
walkway in front of the hotel and on one lane of the
Las Vegas Strip.
On the day of the demonstration, the Venetian
took several additional measures to protect
its property rights. The Venetian marked its property
boundaries with orange paint and posted signs indicating that the temporary walkway
was private property.
As over 1,000 demonstrators marched on the walkway,
the Venetian played a recorded
message over a public address system. The message stated that the demonstrators were subject
to arrest for trespass.
The Venetian’s security
guards placed the demonstration’s leader under citizen’s arrest. The Venetian
then asked police officers at the demonstration to issue criminal citations to the demonstrators and to block them from
the temporary walkway.
The unions, in turn, filed unfair labor practice complaints against the Venetian
with the National Labor Relations Board.
An administrative law judge found that the demonstration was protected
activity under Section
7 of the National
Labor Relations Act and ruled against the Venetian; who appealed
the case to the District of Columbia Court of Appeals.
In ruling for the Venetian, the Court held that “the First Amendment’s Petition Clause in the U.S. Constitution protects
the right of the people . . .
to petition the Government
for
a redress of grievances… and when a person
petitions the government in good faith, the First Amendment
prohibits any sanction on that action.” This principle arises out of a U.S. Supreme
Court doctrine called the Noerr-Pennington doctrine. Under the Noerr-Pennington doctrine
as it applies
in the labor law context,
employer conduct
that would otherwise be illegal
may be “protected by the First Amendment when it is part of a direct petition to government.”
Applying
those principles, the
Court concluded that the Venetian’s act of summoning
the police to enforce state trespass law is a direct petition
to government subject to protection under the Noerr-Pennington doctrine. “Requesting police enforcement of state trespass
law is an attempt
to persuade the local government to take particular action with respect to a law. As we see it, that fits squarely
within the traditional mold of a petition
to government protected by the Noerr-Pennington doctrine,” ruled the Court.
Common
Sense Counsel: This ruling gives employers an excellent road map to protect
their rights and their property. Self help against trespassers is a bad
decision during a heated union campaign that will get you an NLRB charge. It is
critical to successfully win this battle that you now place “no trespassing”
signs at all the entrances to your property so you can enforce your rights
later.
Tommy Eden is a partner working out
of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West
Point, GA and a member of the ABA Section of Labor and Employment Law and
serves on the Board of Directors for the East Alabama SHRM Chapter. He can be
contacted at teden@constangy.com or 334-246-2901.
Blog at www.alabamaatwork.com and follow on
twitter tommyeden3
Wednesday, July 15, 2015
DOL Claims Many Workers Misclassified
By: Tommy Eden
On
Wednesday the U.S. Department of Labor (DOL) issued guidance aimed at employers
who misclassify employees as independent contractors. The DOL claims that most
such workers qualify as employees under the Fair Labor Standards Act (FLSA),
and not independent contractors, under their expansive definition of
employment.
The DOL
15-page “administrator's interpretation” points out that under the FLSA, the
key question is whether a worker is genuinely in business for him or herself,
which makes that worker an independent contractor, or is economically dependent
on the employer, going on to discuss six “economic realities factors” that
guide the classification assessment. It is the DOL’s position that the Economic
Realities Factors Should Be Applied in View of the FLSA’s Broad Scope of
Employment and “Suffer or Permit” Standard.
The “DOL Economic Realities Factors Guide the
Determination Whether the Worker Is Truly an Independent Business or Is
Economically Dependent on the Employer” are as follows:
1) Is
the Work an Integral Part of the Employer’s Business?
2) Does
the Worker’s Managerial Skill Affect the Worker’s Opportunity for Profit or
Loss?
3) How
Does the Worker’s Relative Investment Compare to the Employer ’s Investment?
4) Does
the Work Performed Require Special Skill and Initiative?
5) Is
the Relationship between the Worker and the Employer Permanent or Indefinite?
6) What
is the Nature and Degree of the Employer ’s Control?
These
new administrator's interpretation comes two weeks after the DOL proposed a
rule that would broaden federal overtime pay regulations to more than double
the minimum salary threshold required to qualify for a “white collar"
exemption under the FLSA.
The DOL
claims that the above six factors should not be analyzed mechanically or in a
vacuum, and no single factor, including control, should be
over-emphasized. Rather each factor
should be considered in light of the ultimate determination of whether the
worker is really in business for him or herself (and thus is an independent
contractor) or is economically dependent on the employer (and thus is its
employee). The above factors claims the
DOL should be used as guides to answer that ultimate question of economic
dependence. The correct classification
of workers as employees or independent contractors has critical legal
implications, notes the DOL in their guidance.
Common
Sense Counsel: Next time you are trying to decide how to properly classify
someone, as an employee or an independent contractor, understand that the right
to control the means and manner of performance is a key factor-with about 20
other factors to boot. So ask yourself
the following questions before you hire that person as a 1099 contractor and
not an employee. This is truly where an ounce of prevention is preferred to a
stiff DOL/IRS fine.
Tommy Eden is a partner working out of the
Constangy, Smith & Prophete, LLP
offices in Opelika, AL and West Point, GA and a member of the ABA Section of
Labor and Employment Law and serves on the Board of Directors for the East
Alabama SHRM Chapter. He can be contacted at teden@constangy.com or
334-246-2901. Blog at www.alabamaatwork.com with Links to “administrator's interpretation” on Blog.
Wednesday, July 1, 2015
Obama Administration Doubles Salary Test – Top 7 Solutions
By: Tommy Eden
The U.S. Department
of Labor announced on Tuesday a proposed rule that would raise the minimum
salary threshold required to qualify for the Fair Labor Standards Act's “white
collar” exemption to $50,440 per year, $970 a week. There is a 60 day comment
period for the proposed regulations. There is a 100% chance it will become law
in early 2016.
In order to be exempt from minimum wage and overtime
requirements under the FLSA exemption for executive, administrative,
professional, outside sales and computer employees, under current FLSA
regulations, employees have to meet certain job duties-related tests and
currently only be paid at least $455 per week—or $23,660 annually.
The proposed regulation calls for rising to equal the 40th
percentile of weekly earnings for full-time, salaried workers. That would bring it to a projected level of
$970 per week, or $50,440 annually, by the first quarter of 2016.
While the increase to the minimum weekly salary was
anticipated, what was a surprise was the Administration’s proposal to
automatically increase the minimum weekly salary requirement each year based on
data from the Bureau of Labor Statistics.
While the Department of Labor said it was considering
whether to make changes to the duty tests, the proposed regulations do not
include changes.
Common Sense Counsel: This Proposed Regulation will be
sticker shock for most manufacturing, retail, fast food and millions of small
business employers. Follow these 7 steps for some relief and solutions: 1) take
a deep breath and let it out slowly as a stress relief exercise; 2) take the Draft Exemption Trial Work Sheet Test and your
current job description (better have one)
for each of your current salaried exempt employees and see if they truly
pass one of the five exempt employee test; 3) for those previous supervisors who are now newly christened hourly
employees who do not pass the test, make them a team leader of some kind with
an hourly wage rate; 4) for those hourly employees who will work 50 hours a
week consider a Fluctuating Work Week or Belo written agreement to lower your
overhead cost; 5) for those who do meet the exempt test, and you still want to
keep them salaried, then you will have to give them a raise to 50,440 by the
first quarter of 2016 and redraft their job description (in-fact you should
redraft most of your job descriptions by the end of 2015); 6) update your pay reporting system and handbook
to help you keep day-by-day control of excessive overtime costs; and most
important 7) come up with creative ways to engage and incentivize your hourly
employees to think like owners.
Labels:
DOL,
FLSA,
proposed rule,
solutions,
white collar exemption
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