The various employment laws and regulations all set minimum required practices.  Outstanding companies do more than this, one of the reasons they are exceptional places to work and less likely to be sued or at least be sued successfully compared to the bare minimum employers.  

Most employers expect much more of their employees than bare minimum effort, yet many themselves do the bare minimum or less for their employees in return.  You can legally pay more than minimum wage and should if your expectations and requirements are more than minimal.  Excellent employers provide more benefits than the minimum required (e.g. tuition reimbursement, bereavement leave, retirement plans, generous vacation and sick leave policies).  Some companies are struggling and can't afford to do as much, we all understand that.  However, don't expect excellent employees to join such a company or, if they do, stay with a sinking or struggling ship for long.

Who wants to be a continued patron of a store that provides the bare minimum of customer service?  Likewise, who wants to work for an employer with that same bare minimum philosophy toward its employees?  Provide a place of employment to believe in and to get excited about.  "Just shut up and do your job" will net you much turnover and also the legal problems such a philosophy deserves.  Rarely does an excellent organization get sued relative to a bare minimum one, an extra bonus.  When outstanding employers make mistakes, they rectify them promptly and appropriately. They don't tend to engage in years of pointless and expensive litigation. 

If we all only do the least we can, we shouldn't expect much in return, in any aspect of life.  "Do more, be better" is a two-way street in the employment world.  http://www.employmentlawman.com/monday-morning-musings.html   

It is important to periodically audit your employment practices and documents.  Pay a qualified professional to look at such things as your employment application, handbook, job descriptions, general policies and practices, postings, document retention policy, sample some personnel files to make sure your files are in compliance with the law, etc.  

If the only employment audits that occur at your company are the surprise ones conducted from time to time by such agencies as the Department of Labor or OSHA, you may learn the hard way that an ounce of prevention is worth a pound of cure.  You are never finished with legal compliance issues, thus the need for periodic self-audits.  http://www.employmentlawman.com/monday-morning-musings.html

Yes, there are many differences between a magic wand and a law license (size, shape and material of wand versus license, training required, and more) but of course the chief difference is that a magic wand is fictitious.  It would be nice to be the Harry Potter of the law, to be able to wave a magical legal wand and have every client instantly get everything they want and deserve, maybe even more.  

Back to reality now.  All of us should be honest with our clients/customers and tell them what they need to know, not want they may want to hear.  In evaluating cases, I don't give any thought whatsoever to what I think the client wants to hear.  I focus on telling them what I believe they need to hear, which in some cases may be equivalent to what they want to hear, but often isn't.  You need your doctor to be honest.  If you're overweight, have a disease, have high blood pressure, you need to know that, even though you want to hear you are in perfect health.  

Armed with the best information and advice, you can then make more intelligent choices.  Or not. It's up to you as the end user.  Lose weight and exercise or not, the choice is yours.  Although a skilled legal advocate or other professional can sometimes make something look like magic, it isn't magic.  It's ability, skill and experience at work, hard won over many years.  In the end, though, facts are facts and the law is the law.  Telling someone what they want to hear may result in a quick sale/new client but if it differs from what they need to hear, you have not done your job, your client now has unrealistic expectations and can't truly make the best possible decision in the matter.  Sometimes we have to give out painful truths like "you have a weak case" or "it's a long shot but this treatment is all that's out there now,"  or "we can't get this product to you tomorrow, we need a week to fabricate it."  Tell them what they need to hear and everyone will be better for it in the end.  http://www.employmentlawman.com/monday-morning-musings.html    

Live in the present, in the here and now.  The past and the future each has its proper place but now is all we have.  The past is what made us who we are, the good and the bad.  The past informs and educates us to hopefully make better choices now and in the future.  We can also use the past fruitfully to remember and honor loved ones and beloved memories or entertain others with funny anecdotes, as long as we don't spend an excessive amount of time way back there.  But, using the past to rehash old grudges and slights, real or perceived, serves no useful purpose.  We all know someone who continually rehashes an old job where they were treated badly, a painful family experience now long over, or some other old dusty memory, frequently a bad memory.  What is the point of this?  The past can't be changed and often doesn't even matter anymore.  It stops us from enjoying now, which then slips away into yet another missed opportunity to do something fulfilling, improve ourselves, and appreciate life.   

There are those who spend too much time in the future, on their grand plan 20 years from now or the great things they plan to do "after retirement" or "after I get that next promotion."  They are also missing out on the here and now for something that may not even come since life is fleeting and nothing more is promised to any of us.  Yes, we all need to plan for retirement and have goals for the future, but planning the rest of your life is pointless, particularly if you plan far out in time.  The distant future has too many uncontrolled variables.  Health changes, job changes and issues, family crises, and economic changes are just some variables that can dramatically alter your master plan.  And besides, who wants their entire life all planned out?  That's boring and you lose out on a lot of opportunities and moments that come your way but miss because you are fixated in the past or in the future.    

In the business world, your clients don't often care what you did for them last October or your plans for them in five years.  They want to know what you are doing for them now.  Spend more time in the present in all aspects of your life and I think you will be happier and better for it.   http://www.employmentlawman.com/monday-morning-musings.html   





 

It is normal to be angry when you are sued or sue somebody.  However, be professional and polite at all times to your opponent.  As a lawyer, I have had the air conditioning turned off on me in the summer during depositions, been denied parking validation after depositions ("we don't validate parking for people and their lawyers who sue us"), and most recently not provided a room or chairs during a mediation (which occurred in a government building with plenty of offices; the employer got the room, we got the hallway for caucus sessions).  

These are petty, spiteful behaviors. And, none of the tactics work to the other side's advantage either.  These behaviors fan the flames instead and cause bad feelings to worsen, making it even less likely the parties will resolve their own differences as easily, quickly or cheaply.  There is no upside to such nonsense for the purveyors of this.  

Contrast that with an occasion in which the opposing side catered lunch for everybody, including us on the other side, during a mediation.  It was a nice gesture and created a more positive vibe for negotiations (if you do this, make sure the food is good too)! My message is not, "just buy pizza for the opposing party and you get a better deal," but instead to resist the urge to be impolite and petty.  There are enough legitimate issues and bad feelings in litigation without going out of your way to add fuel to the fire, which is exactly what mean-spirited tactics do, boomerang right back in your face. http://www.employmentlawman.com/monday-morning-musings.html 

Some employers conduct anonymous employee surveys from time to time.  I see no problem with this as long as the questions are valid and intentions are pure.  It's nice to visit face-to-face with employees too but sometimes people are able to be more honest if they can be anonymous.  "You're a great person but a terrible manager" would be pretty hard to share directly, no matter how great a person your boss might otherwise be.  

If you conduct anonymous surveys and/or have a suggestion box (also a good idea), for heaven's sake make sure it really is anonymous if that's the promise made.  My wife recently sent in an "anonymous" survey regarding her gym experience.  Afterwards, she received a voicemail apologizing for the shortcomings she identified, with the caveat, "I hope it wasn't me" and a litany of excuses, blaming members instead of staff for certain issues like broken machines and general gym uncleanliness.  The lesson learned here, don't bother with surveys at this gym.  They don't truly care, it's not anonymous as promised, and now the receptionist at the gym won't speak to her.  

None of us likes to be criticized, although it may be for our own good if constructive and meaningful.  It is also natural to be mad at the criticizer at times, even if we know they might just have a point.  Thus, anonymity, coupled with a genuine desire to do better as an employer is the approach.  "Let's guess who gave us these bad comments" is not the correct mindset either.  This is the whole reason employees are afraid to be honest...retaliation.  If you choose to do these surveys, do it the right way, with the right intentions or don't bother wasting everybody's time.  Nobody likes filling them out, whether as employees or as customers.  When they do, they deserve proper respect for their time and honesty.  http://www.employmentlawman.com/monday-morning-musings.html

Particularly in employment-at-will states, employers can do many things that are unfair but not illegal.  Simple bad management is not against the law and is something often seen in organizations.  That great machinist you promoted to supervisor may be a terrible manager because those two sets of skills are different from each other.  The boss's son may receive more favorable treatment than non-relative employees but this does not ordinarily violate the law.  

Some situations which are unfair may also be illegal though, so the two concepts can at times be equivalent.   For example, differences in treatment  based on sex, race, religion, age, color, national origin, and disability are illegal under federal law (and often state law too).  There are other illegal reasons for treatment and termination besides these and also employees who have extra protections, like federal and state civil service employees, union employees, and persons with specific individual contractual protections, to name a few.  

Thus, employment law is more complicated than simply applying general notions of unfairness or common sense to issues. For example, the lay definition  of harassment is different than the legal definition of harassment, something that confuses laypersons quite frequently.  The term "bullying" is often bandied about these days but whether such conduct is illegal or not usually depends on the behaviors, the severity, the frequency and often the motive behind them too.  In short, don't depend on your Uncle Pete's legal advice, unless he is qualified to give it.  http://www.employmentlawman.com/monday-morning-musings.html

Don't be the employer who demonstrates why the employment laws were enacted in the first place.  Questions come up like "can we fire the employee who just filed a workers compensation complaint against us since now our rates will go up;" "do I have to investigate this complaint of sexual harassment, especially now that the grievant has quit;" "his racist jokes were all in good fun, so no harm, no foul right;" "my employees seem to enjoy sitting on my lap during the holidays when I pretend to be Santa, what's the big deal?"  Worse is when conduct like this occurs but no one even questions whether it is legal or appropriate.

When you are asked by a potential employer, "what religion are you," head for the hills, unless you are actually applying for a religious job where that may possibly, in narrow circumstances, be legally permissible.  There are many nuances to employment law where the legally correct answer requires research and an opinion from an employment lawyer, but the above questions and thinking are not as unusual as you might think.  Although employers in employment-at-will states like Kansas have great latitude, it is certainly not unfettered.  Educate yourself and your key employees on the basics of employment law and have a good employment lawyer's number handy.  If in doubt about whether something is legal, pick up the phone and ask your counsel.  A quick call can avoid years of litigation, time, risk and expense.  No question is too dumb.  Don't just wing it and hope for the best.  That does not constitute a viable, sensible business strategy.  

As an employee, if your employer does not take legitimate concerns seriously, fosters a toxic, disrespectful environment, find another job and leave.  Blatant and obvious employment law violations are one clear signal about your employer.  When you are experiencing serious problems, consult a qualified employment attorney right away and find out about your rights and options.  Even if the law has not been violated, you may need to think about where you want to best expend your efforts.  Time is short.  Shine well and brightly as employers and as employees, in a mutually respectful and rewarding environment.  Anything less should be unacceptable.
http://www.employmentlawman.com/monday-morning-musings.html

Although certain areas of employment law are specific with a fairly straight-forward answer, like the question of what is the federal minimum wage, most issues are not.  Even within the minimum wage example, issues may arise as to whether state wage law applies or the federal Fair Labor Standards Act ("FLSA").  Many states have their own minimum wage rate which may be the same, lower or higher than federal law.  Also, there are exemptions and partial exemptions from federal law.  For example, there are minimum wage exemptions under the FLSA for babysitters, certain workers with disabilities, fishing workers, homemakers making wreaths, and more.  There are special minimum pay rates for tipped employees and even students.  These many and various exemptions and partial exceptions are quite specific but fact-intensive in application.  How does one apply the tip credit and to whom does it apply?  What kind of record-keeping is required? These are just some of the questions in an area that, at first glance, seems simple.   

Continuing with the FLSA example, there is the text of the law itself to consider, the many regulations promulgated by the Department of Labor, opinion letters and other guidance from the Department of Labor and also court decisions which shed light on various fact patterns and which may not always agree with the Department of Labor (although the courts do give great deference to the Department of Labor's interpretations, the courts have not always agreed with an administrative agency's interpretations of the laws it is tasked to enforce).  And, to make matters worse, employment law is constantly changing.  What was good law yesterday may not be good law today. 
  
 For many questions relating to employment law, there is no one hundred percent guaranteed answer because every fact pattern is different.  There are probabilities. The law is a human endeavor.  Each judge is different, every jury is different too, and that must also be factored into the equation.  Juries are much different in California than in Kansas and even a cursory review of decisions from these two jurisdictions demonstrates this.  Every terminated employee's situation is unique.  There may be close case law analogies which help but every case involves uniquenesses. Because this is life.  A law library has many books for a reason.  Thus, the need for experienced legal advice, particularly in complicated situations.  Even the simple minimum wage question can have wrinkles, let alone convoluted factual patterns involved in wrongful discharge and other complex employment law questions.  

Do not make the mistake of erroneously assuming the law is simply the application of common sense (although it helps to have some common sense too) to any given factual situation.  It is not.  A simple google search will not get the job done in most cases either.  Understand there can often be at least 50 shades of gray in employment law, so get competent, sage advice or suffer the hefty consequences of employment law ignorance.   Ignorance is not bliss.
   http://www.employmentlawman.com/monday-morning-musings.html

The Department of Labor has revised its regulations to the federal Family and Medical Leave Act effective March 27, 2015.  The change involves the definition of "spouse," which will now include workers in same-sex marriages.  If the same-sex marriage was valid in the state of celebration, the couple are "spouses" within the meaning of the FMLA in any state in which they thereafter reside, whether same-sex marriage is recognized in the state of residence or not. 

Thus, eligible employees will be able to take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition; qualifying emergency leave due to their lawfully married same-sex spouse's covered military service; and military caregiver leave for their lawfully married same-sex spouse.

 It is important to further note that common law marriage is valid marriage within the meaning of the FMLA, but partners in civil unions or domestic partnerships are not protected under the FMLA.  

Finally, eligible employees may take FMLA leave to care for a stepchild as well as FMLA leave to care for a stepparent who is a same-sex spouse of the eligible employee's parent.  
http://www.employmentlawman.com/monday-morning-musings.html