Ohio Employer's Law Blog | Daily Updates | 01CShould you allow employees to shop online from work?>01D plus more

Should you allow employees to shop online from work?

Today is Cyber Monday, the day online retailers promote their (alleged) deepest holiday discounts. It is estimated that more than 125 million Americans will take advantage of these sales and shop online today. And, many, if not most, of them will do so from work.

The latest available numbers suggest that more and more companies are allowing employees to shop online from work. As of 2014, 27% of employers permit unrestricted access to employees shopping online while at work, up from 16% in 2013 and 10% and 2012. Meanwhile, 42% allow online shopping but monitor for excessive use, while 30% block access to online shopping sites. Similar data is not yet available for 2015, but one can assume that these numbers have continued to trend towards greater access for employees.

Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

You answer should skew towards greater access. I advocate for fewer restrictions for personal Internet use at work for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and, it’s almost impossible to police anyway.

We no longer live in a 40-hour work week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some Internet flexibility both to recognize this sacrifice and to engage employees as a recruitment and retention tool?

Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks Internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone. By trying to control employees’ Internet habits, employers are fighting a battle they cannot win. The iPhone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.

Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday. But, if an employee is not performing, and you can trace that lack of performance to Internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.

As for me, I’m hunting for Legos, Friends for Norah and Star Wars for Donovan. Please don’t tell them.

Everything you want to know about employee holiday pay (but are afraid to ask)

Yesterday I said that I’d be back next week, but then I checked the analytics for my site and noticed a huge spike for a post that digs deep into the archives: 8 things you need to know about holiday pay.

So, since tomorrow is Turkey Day, with most businesses closed, the magic of a quick cut-and-paste brings you everything you wanted to know about holiday pay for your employees.

For those of you who have Thursday and Friday off, enjoy your holiday weekend. Eat, drink, shop, be merry, and, most of all, enjoy your families and be thankful for all that you have.

Question 1. Do you have to pay for holidays off?

Answer: No. You are not required to pay non-exempt employees for holidays. A paid holiday is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status.

Question 2. What happens if a holiday falls on an employee’s regularly scheduled day off, or when the business is closed?

Answer: While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on closed weekend day.

Question 3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify?

Answer: It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.

Question 4. Can we require employees to work on holidays?

Answer: Yes. Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).

Question 5. Can we place conditions on the receipt of holiday pay?

Answer: Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.

Question 6. How do paid holidays interact with the overtime rules for non-exempt employees?

Answer: If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).

Question 7. Do you have to provide holiday pay for employees on FMLA leave?

Answer: You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).

Question 8. If an employee takes a day off as a religious accommodation, does it have to be paid?

Answer: No. An employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance. However, unless you pay other employees for similar non-religious time off, you do not have to pay an employee who takes a day off as a religious accommodation.

Here comes the disclaimer. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with counsel.


Announcing my induction to the Blawg 100 Hall of Fame

Blawg 100 Hall of FameMost people assume that the Rock & Roll Hall of Fame indicated seminal acts such as the Rolling Stones as part of the museum’s inaugural class. Those assumptions are wrong. The Stones did not earn their enshrinement until 1989, in the Hall’s fourth year.

I guess I’m the Rolling Stones of legal bloggers. Yesterday, the ABA Journal inducted me into its Blawg 100 Hall of Fame, in the fourth year the magazine has bestowed such an honor. It also marks my sixth consecutive (and last) honor in the Blawg 100. As a Hall of Famer, I’m required to stand aside for future Blawg 100 lists to make room for new blood.

The ABA Journal describes the Hall of Fame as follows:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

Here’s what the magazine wrote about my enshrinement:

Don’t think that Cleveland lawyer Jon Hyman limits his blog’s scope to Ohio. He follows and posts on the latest appellate jurisprudence, EEOC actions and labor-focused legislation from all over and at all stages. And Hyman’s posts are “entertaining as well as informative,” says Marriottsville, Maryland, lawyer James L. Mayer.

It seems appropriate that this honor comes right before Thanksgiving, because it provides something for which I can be professionally thankful — for of my readers and subscribers over the past 8½ years; for my law firm and partners (present and past) who’ve supported my blogging efforts; for all of the clients who have found me as a result of my blogging; for the journalists and seminar organizers who’ve sought me out as a resource; for the ABA Journal for consistently recognizing my little blog; and for my blogging friends, the other employment-law Hall of Famers (Dan Schwartz and Molly DiBianca), this year’s other employment-law Blawg 100 honorees (Eric Meyer, Robin Shea, Jeff Nowak, Bill Goren, and Donna Ballman), and all of the other bloggers who’ve shared, cited, or quoted what I’ve written over the years.

I’m taking the rest of the week off for the Thanksgiving holiday, but I’ll be back Monday with fresh content. And, I’m looking forward to freshening the blog for 2016 and beyond with new ways to share content and ideas.



One early unexpected result from the NLRB’s ambush election rules

The first six months of the NLRB’s ambush election rules have resulted in one expected result and one unexpected result.

On the expected front, the median time from the filing of a representation petition to the holding of an election has dropped nearly 40 percent, from 38 days to 23 days.

What is the unexpected result?

Despite this significant shorting of the window for employers to mount meaningful campaigns to explain to their employees the negatives of unionization, the union win-rate in these elections has only increased 1.6 percent, from 64 percent to 65 percent.

Graphic c/o

What does this mean for employers? Either—

  1. The management-side hullaballoo that followed on the heels of the NLRB’s new rules are much ado about nothing.
  2. Six months is too small of a sample size to reach any meaningful conclusions.
  3. In the wake of the new rules, employers have embraced a proactive anti-union stance that has placed them in a position of better preparedness after their employees file a petition.
  4. Most employees’ opinions on labor unions are already developed and well entrenched, and most will vote the same whether the election is held one day, one month, or one year after the petition’s filing.

I believe that number 4 is probably the closest to the truth. Much like a political election, in a union election most employees’ minds are made up before the campaign even starts spinning. Like a political election in which most self-identify as a Democrat or a Republican and vote accordingly, in a union election most employees are pre-disposed to be either pro-union or anti-union, and nothing the other side says will sway that entrenched opinion. Instead, union campaigns, like their political brethren, are a battle for the small percentage of the undecided. In a close election, they will determine the outcome.

Thus, even though the opinions of most employees are already decided before the union ever files a petition, a proactive and targeted pro-management message is still important if a non-union employer wants to remain non-union. Employers ignore the undecided voters at their peril.

So, what steps can an employer take to sway those key undecided votes? I advocate for the TEAM approach to union avoidance

     Train supervisors
     Educate employees
     Affirm the open door
     Modernize policies

which you can read more about here.


WIRTW #391 (the “headliner” edition)

In my never-ending quest to turn my legal blog into a promotional blog for my daughter’s nascent music career, I bring you the debut performance of this year’s School of Rock Jr. Headliners — Sunday, December 6, from 4 to 8 pm, at Coda (a new, and supposed very cool, music venue owned by Cleveland chef and restaurateur Dante Boccuzzi).

For the uninitiated, the Jr. Headliners is SoR’s audition-only band for kids 8th grade and under (there is another Headliner band for high schoolers, which will also be on the bill). Norah earned her spot on her vocal chops.

Here’s a tease from the band’s “preview” performance at SoR’s annual Halloween bash — Jet’s Are You Gonna Be My Girl.


My standing offer is still good. If you’re at the gig, say hi, and mention the blog, your next drink of choice is on me.

Here’s the rest of what I read this week:


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

OSHA & Workplace Safety


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Past Issues

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