Be Careful Firing Employees For Screaming At You

MY CAVEAT: In view of the United States Supreme Court’s ruling of June 26, 2014 (National Labor Relations Board v. Noel Canning et al., the following may be suspect as precedent for future decisions.

 

Note to small-business owners: Be very careful firing employees for screaming at you.

The invaluable Overlawyered blog alerts us to two recent decisions by the National Labor Relations Board. The first involved a staff meeting at a car dealership in Yuma, Ariz., where a worker lost his cool and called his supervisors -- well, let's just say several variations of the f-bomb. He stood up, shoved his chair aside and told them they'd regret it if they fired him.

He was duly fired... but the NLRB found his termination "an unlawful violation of the employee's rights to engage in the protected concerted activity."

Meanwhile, a man trying to unionize four Starbucks in Manhattan told a manager to go, umm, have self-induced carnal knowledge. In front of customers, he said this. For which he was duly fired.

 

The Seattle Post-Intelligencer reports the NLRB ordered Starbucks to offer him his old job "or a substantially equivalent position, compensate him for any loss of earnings and other benefits and remove from its files any references to the unlawful firing."

We can only imagine how awkward that first day back might be...

Dave Gonigam, The 5 Min. Forecast, Agora Financial, June 25, 2014

 

One Less (NLRB) Poster!

The National Labor Relations Board (NLRB) has abandoned its rule which required private sector employers to post an “Employee Rights under the National Labor Relations Act” notice, which turned out to be an 11"x17" poster informing employees of their general rights under the National Labor Relations Act.  This results from the NLRB's decision not to seek US Supreme Court review of two US Court of Appeals decisions which invalidated this NLRB notice posting rule putting an end to the poster requirement.

Veterans Benefits and Eligibility Requirments

Name * Required

Email * Required

Phone * Required

Question or Comments

Submit

Veterans benefits are perhaps the most misunderstood and underutilized resources available to millions of veterans and their families.  While it is commonly known that certain benefits are available for the brave men and women who served in our armed forces, many veterans (and their families) are unaware that they could be eligible for a wide range of benefits through the United States Department of Veterans Affairs even if they did not directly retire from the military or suffer injuries in the line of duty. Veterans Benefits offered to eligible beneficiaries include: Non-Service Connected Pension: Non-Service Connected Veterans Pension is a benefit paid to wartime veterans who have limited or no income, and who are age 65 or older, or, if under 65, who are permanently and totally disabled.  Certain veterans may qualify for an additional monthly benefit such as the Aid and Attendance or Housebound allowance.  These are benefits that are paid in addition to the basic pension rate. Death Pension: The VA Death Pension is a benefit paid to eligible dependents of deceased wartime veterans. Disability Compensation:  Certain military veterans with a service-related disability may qualify for regular monthly benefits. These benefits are generally tax-free and are paid to veterans who have injuries or diseases that occurred while on active duty, or were aggravated and made worse by active military service. It is also paid to certain veterans disabled as a result of care provided by VA medical facilities. Dependency and Indemnity Compensation: This is a monthly benefit paid to eligible survivors of certain deceased veterans. Parents DIC:  Parents' Dependency and Indemnity Compensation is an income-based monthly benefit for the qualifying parents of a military service member or veteran who has died. Special Monthly Compensation:  Special Monthly Compensation (SMC) is a monetary compensation (in addition to the regular VA Disability Compensation) to a veteran who, as a result of military service, incurred the loss of or the loss of use of specific organs or extremities. Loss, or loss of use, is described as either an amputation or having no effective remaining function of an extremity or organ. Burial and Memorial:  In exchange for the service that Veterans have selflessly given to the United States, the Department of Veterans Affairs and the Department of Defense provide several memorial and burial services for eligible active-duty, Reserve, Guard, retired and veteran members.  All Veterans and military family members should be aware of the memorial benefits offered by the Department of Veterans Affairs before they are actually needed. Employment andTraining: The Department of Veterans Affairs (VA), Department of Labor (DoL) and the Department of Education (DoE) all administer a number of employment, education, and training programs for veterans.  These programs include, but are not limited to The Montgomery G.I. Bill - Active Duty, The Montgomery G.I. Bill – Selected Reserve, Veterans’ Educational Assistance Program (VEAP), Veterans Upward Bound and Veterans’ Employment and Training. Survivor Benefits:  Surviving family members of veterans are entitled to certain benefits that can help ease their financial difficulties.  When a loved one dies, it can be emotionally difficult to look into available benefits, but this process should be done as soon as possible to prevent eligibility problems. Veterans Health Care:  The Veterans' Health Care Eligibility Reform Act was passed by Congress in October of 1996, paving the way for the Medical Benefits Package plan to be made available to all enrolled veterans. The Medical Benefits Package emphasizes preventive and primary care and offers a full range of inpatient and outpatient services.  In addition, combat veterans returning from active military service may be eligible to receive free health care services and nursing home care for up to two years, beginning on the date of separation from active military service. This benefit covers all illnesses and injuries except those clearly unrelated to military service.  Dental services are not included in this health care package. Veterans Life Insurance:  Service members' Group Life Insurance (SGLI) is a program which provides low cost group life insurance for service members on active duty, ready reservists, members of the National Guard, members of the Commissioned Corps of the National Oceanic and Atmospheric Administration and the Public Health Service, cadets and midshipmen of the four service academies and members of the Reserve Officer Training Corps. Unfortunately, many of the eligible beneficiaries are initially denied these benefits when a claim is filed.  Applicants should be aware that the decisions for these claims can be appealed by veterans and their eligible family members.  Once a claim has been filed and consequently denied, the veteran or other potentially eligible beneficiary has sixty days to file for an appeal with their regional office. Legislation was passed and came into effect on June 20, 2007 which provides veterans the option of retaining an attorney after the first denial by the Department of Veterans Affairs at the “Notice of Disagreement” (NOD) stage. The Department of Veterans Affairs benefits claims and appeals process can be complicated.  If a veteran or a veteran’s family members have received a denial of benefits to which they believe they are entitled, it is in their best interest to contact an attorney who is familiar with veterans benefits to assist them with the application and appeals process. Orange County attorney Bradley S. Erdosi is an Accredited Veterans Attorney and has counseled many veterans and their families in obtaining benefits, including the Aid and Attendance benefit. Courtesy of Bradley Erdosi ~ Please feel free to contact him...not me!

Working at Home during Family and Medical Leave (FMLA)

More employees who are physically unable to come to work are performing work for their employer from home.  Please note that performing work for the employer from home does not count against the 12-week leave allotment under FMLA.  It is therefore important both for the employee and the employer to document when and if the employee on FMLA leave is performing work tasks from home, as the hours spent performing those tasks should be deducted from any calculation of FMLA leave used.  Perhaps, if technology allows, the employee would have to work through the employer's network, which could track these hours, or at least the employee would contemporaneously record the time, subject matter, client, etc. of the work on the network.

Reminder of New Commission Law in California

Any employee hired to perform commission work in California, whether hired by a California company or not, must receive a written contract that includes the method for calculating and paying commissions.  Previously, this applied only to employers outside of California. 

Whether you are a California employer of California residents or not, there is the potential for wage and hour and independent contractor claims, and you might consult an attorney to get your standard commission contracts in proper order.

Employers May Not Sleuth Employees Personal Social Media in California

Under new California law, employers may no longer require or request employees or applicants to: (1) disclose a username or password to access their personal social media; (2) access their personal social media in an employer’s presence; or (3) divulge any personal social media. 

Employers now may not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with an employer’s request or demand that violates the above law.

New Regulations under Children's Online Privacy Protection Act

The Children's Online Privacy Protection Act (COPPA) became effective April 21, 2000 and applies to the online collection of personal information from children under 13. The law demands that sites aimed at children require parental approval in order for minors under the age of 13 to use them.

Sites can choose to ban minors altogether in order to avoid having to comply with the law, as does Facebook. The COPPA rules spell out what a commercial website operator must include in a privacy policy, when and how to seek verifiable consent from a parent and what responsibilities an operator has to protect children's privacy and safety online.

Mobile data, now included under the COPPA rule, was not commonly used or collected when COPPA was instituted. Starting July 1, 2013, the list of “personal information” that cannot be captured without parental consent will include geo-location information, photographs, audio files, and videos that contain a child’s image or voice, along with IP addresses and mobile device IDs.