Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

HR4U 101 Workshop, January 14, 2015. This will include information regarding the new employment laws and regulations for 2015 including the new “Paid Sick Leave” law. Here is a link with more detailed information on the Workshop.

November 8, Pasadena City College, Hiring Talent for Improved Performance, Click here for more information

November 15, Mt. Sac (Walnut), How to Create and Conduct a Formal Discipline Discussion, Click here for more information

November 15, Mt. Sac (Walnut), How to Build a Salary Structure & Merit Pay System, Click here for more information

 

“Porn Gang” at Kansas Gas Gets Almost $1M in Age Discrimination Suit

Dennis Janes alleged he was fired for his age, not watching porn. Looking at porn and passing it around on company time will generally result in a termination.

 

Janes and others were terminated in 2010 in violation of the written policy against having pornographic material on its systems. However; Janes and other former employees successfully sued Kansas Gas for alleged age discrimination and were just awarded $917,035, according to the Kansas City Star.

The company allegedly had found sexually explicit materials on the computers of 52 employees through emails sent by one worker, Dennis Janes. Of the 52, ten were fired, including Janes. Five of them were over age 40 and had been supervisors and they brought suit for age discrimination, according to their complaint.

The group alleged that they had not been given warning prior to disciplinary action, despite a company "standard practice of progressive discipline." The plaintiffs claimed that their termination had another cause: age discrimination. The group claimed it was being eased out to make room for younger employees. 

 

The plaintiffs stated that the company had a culture rife with serious misconduct that management turned a blind eye to, or even participated in.  

 

Janes, in particular, thought that his medical bills, which, over the years, had included 11 knee operations and two knee replacements, could also have been a factor.

The employees went on to claim that being fired "destroyed" them and their families and that none of them had been able to "find comparable employment, especially given their ages and the poor economy." They said they had "climbed up the ranks" and cared about the "safety and dignity" of co-workers. Furthermore, the plaintiffs said that sending the images was part of a "lighthearted approach" they took in the office.

Apparently the argument held weight with the jury, which decided that younger defendants faced lesser consequences for the same activities. The Kansas City Star reported that the four employees in the lawsuit previously had clean disciplinary and performance records.

Each of the employees received lost wages and about $48,000 for emotional distress, according to the Kansas City Business Journal.

 

Who Pays for FMLA Medical Certification?

It appears as though many employees believe that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. For instance, what happens when an employee refuses to return medical certification because she didn’t want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.

 

The employee is wrong.  The FMLA regulations make clear that the employee is solely responsible for obtaining medical certification.  

 

“It is the employee’s responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee’s family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee’s FMLA request.”

 

In addition, the regulations even state explicitly that “any recertification requested by the employer shall be at the employee’s expense unless the employer provides otherwise.”  So if an employee doesn’t provide the appropriate medical certification you may be able to treat them as if they didn’t qualify for FMLA.

 

But be aware that the above applies to FMLA medical certification.  If the employer requires the employee to be examined by a physician chosen by the employer, the EEOC cautions that it is the employer’s responsibility to pay all costs associated with the examination.

 

DOL Serves Hibachi Grill & Supreme Buffet a $2 Million Wage/Hour Bill

In the Hibachi Grill & Supreme Buffet case, the U.S. Department of Labor (DOL) has sued to recover nearly $2 million in unpaid wages and damages for 84 employees. Specifically, the lawsuit is against Wang's Partner Inc., doing business as Hibachi Grill & Supreme Buffet, and its owner, Shu Wang. The suit seeks to recover $1,997,726.

 

The lawsuit was based on an investigation by the department's Wage and Hour Division, which revealed numerous violations of the Family Labor Standards Act (FLSA). The suit alleges that Hibachi Grill & Supreme Buffet:

 

Misclassified servers as independent contractors.

• Failed to pay servers and kitchen staff at least the federal minimum wage of $7.25 per hour. 
• Failed to pay overtime compensation at time and one-half employees' regular rates for hours worked beyond 40 in a workweek.

·         Failed to maintain accurate records of hours worked and wages paid.

 

The case is a good illustration of how small numbers can add up in these cases. For example, if 84 employees are underpaid by $1.25 an hour and work 50 hours a week for 50 weeks a year over 2 years, that’s $525,000 right there. And then the overtime adds about $300,000 more. Double it and add some fines and fees and it’s pretty easy to get to $2 million.

 

Regarding the misclassification of workers as independent contractors, the DOL notes that misclassified employees are often denied access to critical benefits and protections, such as family and medical leave, overtime, minimum wage, and unemployment insurance. Employee misclassification also generates substantial losses to state and federal treasuries (taxes), and to the Social Security and Medicare funds, as well as to state unemployment insurance and workers’ compensation funds. This can all lead to additional fines and penalties beyond what you have to pay the employees.

Factoids

• 65% of female employees feel they have control over their health while only 50% of males do
• Only 3% of 370 companies surveyed said they had standardized job descriptions that were up to date.

·         14% of employees surveyed say that their boss loses his or her temper “all the time” or “often.”

·         A lumberjack was rated as the worst job in 2014, number 2 was a newspaper reporter – go figure!

 

Quotes

"Be the change that you wish to see in the world.”

~Mahatma Gandhi~