News & Analysis

Who decides the right way to catch a thief? Management or a jury?

A Fred Meyer employee who was fired for the methods he used to stop a shoplifter has been given another chance to have a jury decide his wrongful discharge lawsuit. The Alaska Supreme Court has reversed the summary dismissal of his lawsuit, ruling a jury should get to decide (1) whether the employer's policy manual was legally binding and (2) whether the employee was treated fairly in light of how other employees were disciplined.

Want to build an employee handbook? Start with a solid foundation

Yes, winter is coming—time for snowflakes (whether real or paper), holiday celebrations, and, of course, the annual review of your employee handbook. Is there anything that makes the season as merry and bright as updating policies for the coming year? Of course not!

Feeling insecure? Understand notice requirements under state security breach laws

Apple iCloud, J.P. Morgan, Home Depot—these high-profile names represent only a handful of the businesses and services that fell prey to malicious data breaches in 2014.

9th Circuit says nuclear worker may pursue retaliation claim

Because of the significant safety and health risks involved in cleaning up nuclear waste, the Energy Reorganization Act (ERA) provides employees working in the field with protection from retaliation for speaking up about their concerns. In a recent decision, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all Alaska employers) reinstated the claim of a whistleblower who had been removed from his job at the Hanford Waste Treatment Plant after resisting pressure to rush the review of a significant safety issue.

Agency Action

Homecare rule enforcement action delayed. A new rule taking effect January 1, 2015, entitles most direct care workers to receive federal minimum wage and overtime pay protections, but the U.S. Department of Labor (DOL) has announced it won't file enforcement actions against employers violating the new rule until after June 30. Direct care workers are workers who provide homecare services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions. An announcement on the DOL blog in October said the department decided to adopt a time-limited nonenforcement policy to best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services. For six months, from January 1, 2015, to June 30, 2015, the department won't file enforcement actions against any employer that fails to comply with obligations newly imposed by the rule, and for the next six months (July 1, 2015, to December 31, 2015), the department will exercise its discretion in determining whether to file enforcement actions.

Workplace Trends

Good news and bad news about employees going to work sick. The number of employees who admit to going to work sick is down for the first time in five years, according to the fifth annual Flu Season Survey from office supply provider Staples. That's the good news. The bad news? Sixty percent of flu-stricken workers surveyed still go to work. The survey reports that 88% of managers encourage sick employees to stay home, but 40% of workers think there is too much going on at work to stay away, and 31% show up sick because they think their boss appreciates it.

Union Activity

UAW forms local for Alabama Mercedes-Benz workers. The United Auto Workers (UAW) announced on October 3 the formation of UAW Local 112, a new local union providing representation for workers at the Mercedes-Benz U.S. International assembly plant in Vance, Alabama. The union's announcement said it has the support of the Daimler World Employee Committee and the German automotive trade union IG Metall. The UAW announcement called the Tuscaloosa County plant the only Daimler plant in the world not offering employees union representation. The announcement said the local will represent any interested employees, but no employees will be required to join. On the same day, National Right to Work Legal Defense Foundation President Mark Mix issued a statement saying any workers who feel pressured to join the local may request free legal aid from the foundation. Mix also said the UAW launched a similar tactic when it started a voluntary local in Chattanooga, Tennessee, after Volkswagen workers there voted down UAW representation.

Addressing performance issues with pregnant employees

In early December, the U.S. Supreme Court heard arguments in a case that has the potential to extend the protections afforded to pregnant employees. The Equal Employment Opportunity Commission (EEOC) has also made the expansion of pregnant workers' legal protections a top enforcement priority. In addition to requiring leaves of absence and work restrictions, pregnant employees pose tricky timing issues. How do you handle an employee on the disciplinary bubble who recently announced that she is pregnant? One employer navigated those treacherous waters with good documentation and objective performance metrics.

Wage and hour primer: tipped employees

The Wage and Hour Division (WHD) continues to devote substantial resources to certain "low wage" industries each year. Grocery stores, restaurants, and the construction industry are regularly targeted. According to the U.S. Department of Labor's (DOL) website, the department conducted more than 6,000 investigations of restaurants during fiscal year 2013, resulting in almost 48,000 employees being owed $35 million in back wages. A large part of those wages resulted from the improper use of the tip credit provisions of the Fair Labor Standards Act (FLSA). Thus, now is a good time to review the requirements for claiming the tip credit.

White House announces immigration plan

President Barack Obama recently announced his long-awaited plan for a series of executive actions on immigration reform. While the details and contours of the plan are unclear, at a minimum, the president intends to allow parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request "deferred action" on deportation and employment authorization for three years. The president stated that this deferred action, which will affect between four and five million undocumented immigrants, is only "temporary."