Ohio Employer's Law Blog | Daily Updates | “WIRTW #317 (the “crash landing” edition)” plus more


WIRTW #317 (the “crash landing” edition)

Even though we are only in the third week of April, I am ready to declare that we have already seen the social-media #fail of 2014. From Fox News:

US Airways said it was investigating a pornographic tweet on Tuesday sent on its Twitter account in response to a customer complaint about a flight delay, which went viral on social media.

US Airways issued an apology on Monday immediately after deleting the tweeted photograph of a naked woman lying on a bed with a toy airplane between her legs, said Davien Anderson, spokesman for US Airways.

To be accurate, “between her legs” is a bit of an understatement.

Meanwhile, Jezebel reports, “It was an honest mistake. No one is getting fired.” Honest mistakes happen, both in the privacy of the workplace and in public on social media. The important lesson is how you handle it. Do you punish the employee? Or do you use the mistake as a teachable moment for all of your employees. In my experience, you get much more mileage from the latter.

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

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Why you need employee-invention and IP agreements

Taco Bell is defending claims by two former interns that they invented the Doritos taco nearly 20 years ago. They now want to be paid part of its billions dollars in sales. (ABC News)

The pair and their former employer will likely end up in court over who invented what, and when.

My question is whether Taco Bell required the interns to sign an “inventions” agreement. If they did, then even if the intern’s story is true, they will have little legal leg on which to stand.

A typical employee inventions agreement accomplishes the following:

  • It defines that all rights to any inventions, innovations, developments, designs, etc., related to the employer’s business, and conceived, made, or developed by the employee while working for the employer, belongs to the employer and not the employee.

  • It includes a promise that the employee will execute any documents necessary for the employer to perfect its ownership interest in any such inventions, etc.

  • It provides the employee the opportunity to list, for exclusion, any patents held, or inventions, etc., conceived prior to employment, or for specific assignment to the employer for consideration paid.

These agreements are usually part of a larger confidentiality agreement, or non-competition agreement, but also can be standalone. The point is to avoid any dispute over who created what. If you provide employees the opportunity to list existing ideas and inventions, and to promise that anything they invent while working for you is yours, and not theirs, then nobody should go loco if one of their ideas hits it big, and the employer keeps it.

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What happens when an HR investigation is staged … and filmed for a beer commercial?

This.

“Do you always wash your hands after using the restroom? … Have you ever told a coworker you like her outfit? … Do you use your work computer for non-work-related activities? … Have you been using your computer to watch basketball this March?”

I don’t recommend taking an HR investigation as a practical joke in your workplace, but this ad is pretty darn entertaining.

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Hypothetical violations doom employer confidentiality policy

A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy. Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere.

At issue in Flex Frac Logistics v. NLRB was the following workplace confidentiality policy:

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to … our financial information …; [and] personnel information and documents…. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

The appellate court affirmed the NLRB’s decision that this policy infringed on the rights of employees to engage in protected concerted activity:

A “workplace rule that forb[ids] the discussion of confidential wage information between employees … patently violate[s] section 8(a)(1).” … As the NLRB noted, the list of confidential information encompasses “financial information, including costs[, which] necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The confidentiality clause gives no indication that some personnel information, such as wages, is not included within its scope.

Particularly troubling is the NLRB’s summary rejection of the employer’s argument that the policy should survive because it had never interpreted or applied it to restrict employees’ Section 7 rights, such as the right to discuss wages. As the court noted, “the actual practice of employees is not determinative,” as long as one could reasonably interpret the policy as a restriction on Section 7 rights.

In other words, employers need to safeguard their policies against what-ifs and hypotheticals, a daunting task. In a passing notation, the court does note that Flex Frac’s policy failed, in part, because it did not expressly exclude “personnel information, such as wages.” Going forward, employers should consider including this carve-out in their confidentiality policies to help avoid NLRB scrutiny.

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It's illegal to ask employees to give up overtime payments

If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

According to Cleveland.com, Citywide Protection Services has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The comapny’s excuse for not paying overtime? The employees asked.

George Lewandowski, Citywide Protection Services’ president, said he was being characterized as a bad guy when all he had tried to do was help out his employees. Lewandowski said workers kept demanding overtime hours because they needed money.…
“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” he said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.
“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” Lewandowski said. “They were aware that I could not pay the overtime—no matter what!”
It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or collective lawsuit, neither of which is an option you want for your business.

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