In my occasional series on the crazy things that employees do, here’s one that, in reality, is probably not all that uncommon. Many people use their personal cell phones for work. And as a matter of habit, they may plug their cell phones into their work computer – maybe to sync it or charge it. But what they aren’t thinking about is that the work computer backs up the content on the phone. All. Of. It. (Unless the employee is technically savvy enough to back up only portions of it. Let’s be frank – most people aren’t that savvy.) Continue Reading Extraordinary Employee Misconduct: Saving Nude Pictures to Work Computer!

Employer obligations to consider the use of medical marijuana as a reasonable accommodation just got murkier with a new case out of Delaware, Chance v. Kraft Heinz Foods Co., decided in December 2018. Continue Reading Another State Finds No Federal Preemption of Its Medical Marijuana Law

Maryland lawmakers have introduced a bill that would increase the minimum wage to $15.00 per hour by 2023. Notably, the State’s minimum wage is currently $10.10 per hour, which is significantly greater than the federal minimum of $7.25. Many progressive leaders and newly elected legislators do not think Maryland’s current minimum wage is high enough, and as a result, there has been an increased push to pass the proposed legislation. If enacted, Maryland would join the notoriously employer-unfriendly jurisdictions like California, New York, Massachusetts, New Jersey, and Washington D.C. If the experience in those States is a guide, the increased minimum wage would increase the cost of doing business in Maryland, create incentives to deploy technology to reduce labor costs, harm workers who are least skilled (by making them less attractive “at the price” vis-à-vis more skill peers), and create severe obstacles for businesses operating within the State.  Continue Reading Fight Against $15! An Opportunity to Testify Before the Maryland General Assembly

So, you say you want to avoid employment jury trials?  Let’s talk.

The Federal Arbitration Act (and the law of virtually all States that have enacted a version of the Uniform Arbitration Act) favor arbitration.  Contractual agreements that clearly and unmistakably set forth an intent to arbitrate disputes normally will be enforced (barring a judicial “lapse of judgment”).  Key benefit: in arbitration, there is no jury!  Employers know that juries are fickle, and may decide an issue based on empathy and anger rather than the rules of law enunciated in the jury instructions.  Continue Reading One! Two! Three! Four! What Do You Say We’re Fighting For? Arbitration!

My brilliant law partner, Fiona Ong, explained last week about why it is unwise to treat a reduction in force (“RIF”) as a “golden opportunity” to rid yourself of those pesky under-performers whose deficiencies were not documented properly.  (We do know why there is no documentation, BTW.  Those underperformers often are gifted at deflecting responsibility, and honest performance evaluations require, well, honest feedback, which unpleasant people abhor.  For managers, who just want to do their jobs, it is much easier to select “meets expectations, meets, meets, meets” than lose hours debating the ratings.)  Continue Reading Now that You Know that a RIF Is Not a “Magic Bullet” (Performance Management Advice for Managers in Five Easy Pieces)

Whether you are looking out your window at the wonder of snow or trying to prognosticate when it will hit, one thing is for sure.  If you are in a state with mandatory sick leave, employees may be invoking their right to no-questions-asked leave when you otherwise prohibit any excuses.  Such “no excuse” policies are common during snow events at businesses that must provide service – hospitals, property management companies, no-stop assembly lines. Think patients to be cared for, sidewalks to be cleared, machines that will seize without humans. Continue Reading Oh, the Weather Outside is Frightful (I think I Need a Sick Day)!!

When a company relaxes its workplace policies to allow employees to openly display tattoos and use social media at work, does that mean it’s discriminating against older people? That question presumes that only younger people have tattoos and use social media (which is itself discriminatory!). But, in Wyss v. PetSmart, Inc., a 60-year old employee attempted to use her employer’s social media policy and permission to display tattoos and piercings as evidence of age discrimination! Continue Reading Tattoos and Social Media = Age Discrimination?

The 21st Century is in full swing.  Yet, we still don’t quite know what it means to be a 21C workplace.  We are told Artificial Intelligence (“AI”) will displace tasks performed by many (including lawyers) after we train the machines to perform our tasks.

However, a recent #Wall Street Journal article reminds us that the art of a handshake, eye contact, the ability to sense when a customer has had a bad day, remain business-essential skills which at this point are uniquely human.  And, apparently, increasingly must be taught.  Literally.  Continue Reading 21C Workplace Success Begins with a Handshake (and Eye Contact)!

The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum.  Yet that Court recently rendered a decision that employers should applaud.  In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee’s lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana.  Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush.  The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession. Continue Reading Employers Tread Carefully!  The Interplay between Federal and State Laws Regarding Medical Marijuana Usage

Allegations of sexual harassment perpetrated by top officials are not new, nor are lawsuits or threats of lawsuits based on those allegations.  Wise companies take such matters seriously and, if they conclude that the allegations have merit, take action not just to resolve the matter with the complaining party but to root out the problem so it does not reoccur.  Fire the offender, change the culture and move forward. Continue Reading Boards of Directors in the Bullseye: #MeToo and the Fiduciary Duty