employment mediation

The art of mediation–some lawyers have a gift for it right out of law school and some never seem to develop the skill.  Most of us have to work at it.  However, no matter your skill level, there are certain things that, if you are not mindful of them, will almost always blow up in your face.  Below is a list of things that are sure to tank most every mediation. Unintentionally misrepresent the client’s position You can derail the mediation before it begins if you are not thoughtful and careful in discussing the mediation with your client and/or the other side.  For example, if the plaintiff makes an opening offer and asks your client to participate in mediation, your[…]

You’ve almost certainly read about the girl who cost her father an $80,000 settlement by posting about it on Facebook.  If you’ve been living under a rock, here’s the short version: The plaintiff reached an $80,000 settlement for alleged age discrimination with his former employer, but before the settlement is paid, his daughter posts “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”  When the employer found out, it refused to pay the settlement, and the court agreed. This case provides a good example to employers, or any defendant for that matter, why they should include confidentiality clauses in settlement agreements.  After all, one of the main purposes[…]

In a recent decision, Chamberlain v. UCBR, the state Supreme Court determined that a man under house arrest is still eligible for unemployment compensation benefits. In this case, the claimant was found eligible to receive unemployment compensation benefits, but was subsequently sentenced to sixty days on house arrest for driving with a suspended license.  While on house arrest, the claimant was permitted to work, run errands and shop for Christmas.  However, as a result of the claimant’s house arrest, he was informed that his benefits were suspended. Under unemployment compensation law, a claimant is not eligible for unemployment compensation benefits for any weeks of unemployment where the claimant is incarcerated.  As a result, prior to this decision, as a matter of[…]

The Family Medical Leave Act is nothing new, and neither are the difficulties, issues and paperwork that comes with it.  Most likely, at one point or another, the FMLA has caused a problem for you and your company.  Maybe you had questions about paying an exempt employee when they take intermittent FMLA leave after using up all of their vacation and sick leave.  Or maybe you had a “difficult” employee take FMLA leave just as you were getting ready to terminate them, leading to questions about when and how to go about the termination (or maybe you just let them go and are currently looking down the barrel of a retaliation lawsuit). The FMLA forbids an employer from retaliating against[…]

The Fair Labor Standards Act (FLSA) can cause a lot of difficulties for employers.  Thankfully, once you have successfully determined whether each of your employees is exempt or non-exempt, you are done, right?  Unfortunately not. Under the FLSA, you cannot base the amount of money you pay your salaried employees on the number of days or hours he or she works.  In other words, you generally cannot deduct money from an exempt employee’s paycheck for time off work.  But, surprise, surprise, there are exceptions to the general rule… You are permitted to dock an exempt employee’s pay: for a week when the employee does not perform any work for a day or days that the employee is absent for reasons[…]

Smoking has become a very important topic for employers recently. More and more employers, particularly in the healthcare industry, are refusing to hire smokers. This is by no means a recent development, as companies like Turner Broadcasting have been refusing to hire smokers for over twenty years. However, in the last few years, with rising healthcare costs, employers are seeing a ban on hiring smokers as a way to reduce costs. It is common knowledge that smokers are one source of high costs for many employers. According to the American Lung Association, smokers cost the economy over $193 billion each year, and employers could save an estimated $3,400 per year for each employee who quits smoking. Insurance rates are significantly[…]

The United States Department of Labor estimates that 30% of employers are misclassifying employees as independent contractors, which results in billions of dollars in lost revenue every year. Citing a desire to minimize losses in contributions to unemployment insurance funds, protect workers’ rights and “level the playing field” for employers that abide by the law, the DOL has launched the Federal Misclassification Initiative, where they are partnering with the IRS and a number of state governments to share information. The memoranda of understanding contain an agreement to share information, in order to determine when workers are being misclassified.  The cooperative efforts will likely lead to multi-pronged scrutiny and enforcement proceedings. The initiative will ensure that a worker classified as an independent contractor[…]

When a Texas employee believes he or she has been discriminated against at work because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information under a number of federal laws, they can file a Charge of Discrimination with the Equal Employment Opportunity Commission. All of the laws enforced by the EEOC, except the Equal Pay Act, require an employee to file a charge before filing a job discrimination lawsuit. The employee must bring the charge within 180 days from the day the discrimination took place, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. With allegations of age discrimination, the filing deadline[…]

When an employee believes that he or she has not been properly paid the minimum wage or overtime they may file a complaint for back wages under the Fair Labor Standards Act with the Department of Labor. The federal government set the minimum wage at $7.25 per hour. And when an employee works more than 40 hours in a week, he or she must be paid at a rate of 1 ½ times the regular rate of pay. However, it is important to note that not all employees are subject to the wage and hour rules of the FLSA. The FLSA only applies to non-exempt employees. The FLSA exempts an employer from both minimum wage and overtime pay for certain[…]

While many states, including Pennsylvania, have implemented laws the ban texting while driving, the federal government has also thrown its hat into the ring. The Occupational Safety & Health Administration (OSHA) has implemented a Distracted Driving Initiative, which will focus on texting while driving. OSHA calls upon all employers to ban texting while driving and remove any practice or policy that requires or encourages workers to text while driving. The first part of OSHA’s call to action is certainly easy to implement. Simply add a section in your employee handbook prohibiting texting while driving (and maybe take it a step further by prohibiting cell phone use in general while driving) and ensure that all of your employees are aware of[…]

Tax day is past, and now everyone can start worry about being audited. And while you may be worried about an IRS audit, you shouldn’t forget about the Department of Labor. The Fair Labor Standards Act gives the DOL’s Wage and Hour Division broad investigative authority to review employer records and conduct on-site inspections. Luckily, you can take some steps to prepare for a DOL audit and avoid a great deal of trouble (and expense) down the line. Review Job Descriptions You should be reviewing job descriptions periodically, just to make sure that the description matches the position. When conducting your wage and hour audit, you need to ensure that the people you are classifying as exempt are actually exempt.[…]

Two recent cases, one from the plaintiff’s side and one from the defendant’s side, highlight the importance of following information retention requirements. Recently, Heather Painter learned a difficult lesson about deleting. Ms. Painter claimed that her boss, a dentist, sexually harassed her. After filing her lawsuit, she deleted some Facebook comments that (allegedly) said she loved her job and working for the dentist. Ms. Painter claimed that she did not know it was improper to delete the comments, but the court disagreed. Deleting the posts was a deliberate act, and the court could not infer that she deleted comments, that were detrimental to her case, for an innocent reason. The judge decided that the jury should infer that the Facebook[…]

One of the most popular trends in the IT world right now is the bring-your-own-device (BYOD) approach, where employees use their own mobile device at work. Its another case of new technology creating new problems. Before implementing a BYOD policy, you need to weigh the risks against the cost benefits. IT departments have spent years working on desktop security and trying to prevent data loss via web and email, but employees are increasingly accessing corporate data with their own smartphones and tablets. As a result, employers have much less control over the security protecting their corporate data. Unlike desktops, very few people have protection against viruses and malware on their smartphones and tablets. Thirty-seven percent of IT decision makers reported that[…]

Computer policies used to be fairly simple: no personal emails, no surfing the internet on company time, and especially no porn. Now, with social media and “the cloud,” there are so many more avenues for trouble. One of the more prevalent issues recently has been who owns Twitter followers when an employee leaves.  The issue is particularly thorny when the employee was hired to manage the employer’s official Twitter account.  The employer will argue that the followers belong to it, because the employee’s job was to send out tweets and increase the number of followers. On the other hand, the employee will argue that the Twitter followers belong to him or her, because they put in all the work to[…]

Alright, alright, alright… After a very entertaining and high-ly informative #nextchat about medical marijuana in the workplace, I started thinking about some of the points made today and decided that I’d like to expand on some of the ideas thrown around.  And I’ll  try to avoid more bad jokes and puns, but no promises… The Sky Isn’t Falling Even with the passage of bills in your state allowing medical marijuana, it isn’t the end of the world as we know it.  After all, it’s not as if your employees are going to run out to get medical marijuana cards and start smoking up at work.  For the most part, you won’t have any employees that need medical marijuana.  And even[…]

The Fair Labor Standards Act requires you to pay your employees for time they actually spend working, whether they’re working on your property, at a client’s property, at home or anywhere else.  When evaluating whether wages are owed to your employees, the key inquiry is whether the employee is actually engaging in work. Some businesses, particularly those in the medical field or other fields where emergencies arise, have employees  “on call” for a certain period of time in addition to their actual work day. Under some circumstances, you may need to pay your on-call employees for their on-call time. When determining whether your employees’ on call time is compensable requires a case-by-case analysis. For example, if your is required to[…]

A great deal has been written in the last week about whether you should monitor your employees’ social media activity. A lot of very smart folks fall on both sides of the debate, since it can be a rather murky issue involving a balancing act between protecting the company and respecting employees’ right to act as they wish in their time off work. Notice that I didn’t say employees’ privacy. Little, if anything, shared via social media is private, so monitoring social media can hardly be deemed an invasion of privacy. So now I’ll offer my two cents on the subject: it probably isn’t worth it to actively monitor your employees’ social media accounts. Doing so would require a great[…]

What exactly is a “partnership” under the laws of the State of Texas?  As a starting point, a PARTNERSHIP may arise when two or more individuals become associated in a common venture for the purpose of making money.  This association of individuals would NOT be a partnership if appropriate documents are signed which provide that the joint owners instead intended to create a different business structure – like a Corporation or a Limited Liability Corporation (LLC).   Basically, in the absence of any documentation to the contrary, two or more associated individuals may be considered partners in the eyes of the law.  Since the individuals are considered Partners in the business venture, they each have the ability to legally bind the business venture and the other Partner (or Partners).  Since the individuals are considered[…]

A battle between Capital One and two of its former senior executives brings us “new” insight into the thorny issue of NON COMPETE AGREEMENTS and their enforceability.  As a Texas  employment law practitioner, I am sometimes faced with clients who have determined that their fully signed Non Compete Agreement cannot be enforceable based on the advice of friends and family in other states.  If they acted on that advice without checking further, these same clients may be bringing us a letter from their former employer stating that they are in violation of that Non Compete Agreement.  The Agreement may contain several restrictions for the former employee – including such categories as non-competition restrictions,  non-interference provisions, confidentiality provisions, protection of trade secret provisions and non-solicitation provisions  (with respect[…]

As a business owner, I really need to look at it as a wake up call for what Mother Nature can really throw our way.  Business owners owe it themselves, their customers and their employees to develop a solid plan to handle natural and man-made disasters.  Disaster Planning is not something just for big businesses and the local municipality.  Small and mid-size business owners and sole proprietorships need to develop a Disaster Plan as well.  There are some excellent websites available to help business owners learn how to develop an Emergency Preparedness Plan, how to implement and test the Plan and how to keep the Plan current as time passes. For information Business Owners can use in developing an individualized Disaster Preparedness Plan for their own[…]