01 Monday Jun 2015
Posted in At-Will Employment, Employee Manuals, Employment Law, Whistleblower, Wrongful Termination
≈ Comments Off on Employment Law Fallacies – How Many Will You Get Right?
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At-Will Employment, Employment Law, Free Speech, Privacy, Rest Breaks, San Antonio Employment Law Blog, Thomas J. Crane
Nine Employment Law Myths, by Thomas J. Crane, San Antonio Employment Law Blog
Many potential clients, friends and some folks I barely know share their knowledge with me about employment law. Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter. . . .
07 Thursday May 2015
Posted in 6th Circuit Court of Appeals, Employee Manuals, Employment Law, FMLA Leave, Health Care Benefits
≈ Comments Off on An Employee Manual Predicament.
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Elliott-Larsen Civil Rights Act, Employee Manual, FMLA, Jason Shinn, Michigan Employment Law Advisor
Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual, by Jason Shinn, Michigan Employment Law Advisor [originally published February 5, 2015]
This past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).
An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.
Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.
The FMLA and Eligibility
For background purposes, the FMLA provides employees ‘a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an ‘eligible employee’ who works for an ‘employer’ – as both terms are defined under Act – may obtain such benefits.
The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.
At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. . . .
13 Monday Apr 2015
Posted in Employee Manuals, Employment Law, National Labor Relations Act
≈ Comments Off on Updated Your Employee Manual And Policies Lately? Maybe You Should.
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Employee Handbooks, Employee Policy Manual, Jason Shinn, Michigan Employment Law Advisor Blog, National Labor Relations Act, T-Mobile
Employer Charged with Unfair Labor Practice Because Employee Manual and Agreements Were Unlawful, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor Blog
Two annoyances in life often involve cliches and living out a cliche. This is especially true when the cliche is ‘shooting yourself in the foot.’ But T-Mobile got to experience both last week when the National Labor Relations Board (NLRB) ruled that it engaged in unfair labor policies.
The ruling arose out of T-Mobile’s employee handbook, code of conduct, and a confidentiality form that all employees are required to sign. However, because of the manner in which T-Mobile drafted these documents, the NLRB found they obligated T-Mobile employees to comply with unlawful labor rules. The full NLRB opinion is available here (NLRB_T_Mobile_Opinion_2015_3_18).
We previously explained that employers need to be mindful that the NLRB would be focusing on employee manuals, sometimes called employee handbooks, and other employee agreements that violate employee rights under the National Labor Relations Act (NLRA) (an act that applies to union and non-union employees). See Employee Manuals Need Spring Cleaning Thanks to the NLRB. We also expressed our concern that many provisions in employee manuals and agreements could violate the NLRA and, therefore, subject companies to an unfair labor practice charge similar to what T-Mobile got hit with.
A review of the T-Mobile opinion substantiates these concerns in that the offending provisions were construed or otherwise interpreted to prevent workers from communicating with one another about wages, from speaking to the news media about workplace conditions and from speaking with co-workers to marshal evidence against disciplinary charges. Over all, administrative law judge found that 11 of the 13 policies subject to the litigation were illegal. . . .
The Researching Paralegal 
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