Fantasy Football – The Cost To Employers

It’s almost fall, and football enthusiasts are eagerly awaiting for the college and pros to begin their seasons.

Over the past decade, fantasy football leagues have proliferated – especially since the advent of the internet. More and more people checking player and team stats; proposing trades; and tracking their team performace – and that’s OK – unless it’s being done at work.

According to Challenger, Gray & Christmas, fantasy football leagues cost U.S. employers about $9.2 billion annually in lost productivity.

It’s a simple fix: internet use at work is for business use only. Fantasy Football (and anything else personal, for that matter) can be done from home, on one’s own time.

Courtesy Newsday.

Non Competition Agreements Really Unenforceable

Lots of our clients request Non-Compete Agreements for their employees. I generally try to talk them out of trying it, and if they insist, I refer them to their employment lawyer.

The reason I discourage Non-Competes is that the courts change the covenants so frequently, there’s no real way to have a solid template to develop one.

Now comes the latest California Supreme Court ruling, which has established a ‘bright line’ rule in the case of Edwards v. Arthur Andersen. The ruled on August 7 that California employers cannot enforce agreements limiting competition by former employees, except within very narrow statutory exceptions.

If you really believe you need a Non-Compete Agreement for your employees, please consult your attorney. And read this excellent article from Cooley Godward & Kronish LLP.

2008’s Most Popular Employee Perk?

The cost and hassle of transportation (in addition to the poor economy) is leading employers nationwide to consider 4-day workweeks, car pooling and the like.

Yet the employee who must drive on company business is left out in the cold…unless…

According to a survey by SHRM (The Society for Human Resources Management) says that the most popular perk this year is raising mileage reimbursement to the current IRS limit (which is now 58.5 cents per mile).

A small price to pay for maintaining employee satisfaction.

Courtesy Clarksville, TN Leaf Chronicle.

Consequences of the Brinker Decision

Last month, a California appellate court made a significant (although sure to be appealed) ruling regarding rest and meal breaks.

For years, the California DLSE and courts have interpreted the term “provide” to mean employers must require employees to take their mandatory meal periods or be liable to the employee for one extra hour of pay.

The court determined:

The appellate court’s ruling included the following major points:

  1. Rest Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only “provide,” not ensure, that rest periods are taken.
  2. Flexible Timing of Rest Periods. Employers need only authorize and permit rest periods for every four hours or major fraction thereof worked, and they need not, where impracticable, be in the middle of each work period.
  3. Meal Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.
  4. Flexible Timing of Meal Periods. Employees are entitled to take meal periods when working more than five hours. But employers are not required to provide a meal period on a rolling five hour basis. That is, as long as an employer provides a meal period at some point during a shift, it doesn’t matter if the employee works more than five consecutive hours without taking that meal period.
  5. Liability For Known Off-Clock Work. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.
  6. Class Action Unavailable. Because whether or not employees were provided a meal and rest period, and whether they worked off the clock, cannot be determined on a class-wide basis, but rather must be determined on an individual case-by-case basis, the lawsuit should not be certified as a class action.

The Department of Labor Standards of Enforcement has issued the following memo that explains their position on this ruling. Read it here.

Employer Liability for Violence in the Workplace

An altercation at an Autozone store in Orange County California has put employer liability for violence in the workplace back in the news.

A customer was at the store to buy motor oil when he whistled at an employee in order to get his attention. The employee, a sales manager, took the whistling as an insult, and after a verbal exchange, hit the customer with a metal pipe.

The customer filed a lawsuit, contending that AutoZone was negligent in hiring, retaining, and training the employee, in light of his allegedly violent background. In particular, the sales manager had a juvenile delinquency record for attempted murder, although AutoZone was unaware of it. And, AutoZone had previously given the manager a written warning for raising his voice to a customer.

The CA appellate court ruled that the customer-victim can take his vicarious liability claim to trial.

Under California law, an employer is vicariously liable for its employees’ wrongdoings that are committed within the scope of the employment, and an employee’s willful, malicious, and even criminal acts may fall within the employment scope.

The appeals court, however, went on to reject the negligence accusations. According to the court, AutoZone had no duty to do a more-thorough background check before hiring the employee—and even had the company done more, it still might not have uncovered the juvenile record. What’s more, the prior incident in which the manager raised his voice with a customer wasn’t a red flag that he might be violent.

Avoid Liability

What can employers do to avoid liability—either vicarious or because of the employer’s own negligence—stemming from an employee’s violent outburst?

What can employers do to avoid liability—either vicarious or because of the employer’s own negligence—stemming from an employee’s violent outburst?

What can employers do to avoid liability—either vicarious or because of the employer’s own negligence—stemming from an employee’s violent outburst?

    • First, be sure to investigate job applicants’ backgrounds before they’re hired. This is especially true if the worker will have unsupervised conduct with third parties or the public.

    • Second, take care to monitor employees’ conduct, particularly, if given the nature of the job, there’s a possibility that violence could erupt. If you don’t, you could be liable for negligently supervising an employee who ends up assaulting a customer or co-worker.

    • Third, promptly respond to complaints or warning signs. If you become aware of a possible problem with an employee, you will face bigger legal risks if you don’t investigate and take action.

Flores v. AutoZone West, Inc., Calif. Court of Appeals (Dist. 4, No. G038322 (2008))

Courtesy Business & Legal Reports, Inc.

How Not To Lead In a Bad Economy

The down economy stresses everyone in the workplace – including the boss.

But unless you are implementing an overall reduction in force, the last thing you want to do is threaten employees. It costs a substantial amount of money to replace an existing employee.

Yet that’s what’s happening in many businesses right now – here are some examples:

  • Managers are more reluctant about granting sick leave or holiday pay.
  • Employee reviews are more negative than usual, perhaps due to the fact that managers are paving the way for a justified firing (so they don’t have to do a layoff).
  • Employees are forced to do the work of two people without getting additional compensation.

Not the way to lead!

Find ways of making employees work better – and more efficiently. Consider any of the following:

  • Flex scheduling that accommodates school visits, doctor appointments-or just personal time
  • Telecommuting, from one day a week to full time
  • Compressed workweek (for example four 9-hour days, or three 12-hour days)
  • Job sharing (where typically two people share one full-time job, often overlapping for 1 day)
  • Part-time seasons for full-time workers (that is, like a school schedule—work full time most of the year, part-time or not at all during the summer)

Courtesy Eve Tahmincioglu in msnbc.com

California’s "New" Meal & Rest Period Rules

Last month, a California Appellate Court ruled employers don’t need to ensure meal and rest breaks – a substantial change from previous policy.

Now comes a succinct analysis of that ruling from the law firm Barker Olmsted and Barnier. The key points as summarized in their article:

The appellate court’s ruling included the following major points:

  1. Rest Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only “provide,” not ensure, that rest periods are taken.
  2. Flexible Timing of Rest Periods. Employers need only authorize and permit rest periods for every four hours or major fraction thereof worked, and they need not, where impracticable, be in the middle of each work period.
  3. Meal Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.
  4. Flexible Timing of Meal Periods. Employees are entitled to take meal periods when working more than five hours. But employers are not required to provide a meal period on a rolling five hour basis. That is, as long as an employer provides a meal period at some point during a shift, it doesn’t matter if the employee works more than five consecutive hours without taking that meal period.
  5. Liability For Known Off-Clock Work. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.
  6. Class Action Unavailable. Because whether or not employees were provided a meal and rest period, and whether they worked off the clock, cannot be determined on a class-wide basis, but rather must be determined on an individual case-by-case basis, the lawsuit should not be certified as a class action.

Barker Olmsted & Barnier also agree with our assessment: Because this is an appellate court ruling, don’t change your practices just yet; the appeals have just begun.