Sticks and Stones

Most people have heard this saying at some point in their life, probably as a child.  “Sticks and stones may break your bones, but words can never harm you.”  With a quick internet search, references to this saying go back as early as to the 1800s.  The intent of the saying seems clear; to help someone soldier on in the face of hurtful words.  Yet, there are countless stories noting that, in fact, words can and do harm people.

The courts have grappled with this concept in the realm of harassment and hostile environment cases.  Are there words that are sufficiently hurtful as to create a claim for racial harassment or the creation of a racially hostile working environment?  What is the employer’s responsibility to stop such conduct? Continue reading

Get out the Vote – Your Employees’ Rights to Vote

Election Day is almost upon us – Tuesday, November 6, 2018.

Most every state has laws protecting the rights of people to vote.  In Oklahoma, employees have the right to have time off of work – if needed – so they may cast their vote.  You need to understand those rights so you are prepared.

Oklahoma employers cannot penalize an employee (who is a registered voter) with loss of wages or of benefits and cannot cause an employee to suffer any adverse employment action for exercising her right to vote.

How and when must an employee make a request?  Continue reading

DOL’s Guidance on Whether “Caregiver Registries” are Employers Provides Guidance on the Broader Question of Who is an “Employee”

On July 13, 2018, the Wage and Hour Division of the Department of Labor (WHD) issued guidance on the subject of whether nurse or caregiver registries were the “employer” of the nurses or caregivers on those registries.  This guidance is notable for a several reasons.  It recognizes the changing nature of employment.  These registries are often online services where a person or group needing caregivers (e.g., home health, babysitter, nanny, etc.) might go to locate a caregiver in the area, conduct research, schedule an interview, do a background check, and possibly even run payroll services.  Determining whether or when such a registry moves from a referral or “matchmaking” service to an “employer” matters a great deal.  Once an entity becomes an “employer,” it has an extraordinary amount of responsibility and potential legal liability.  Even if the caregiver works for a particular client, that client might simply be the co-employer with the registry such that the client and the registry could both be liable to the caregiver under various employment laws.

General Test for Employment Relationship 

The WHD relies upon the “economic reality” test to determine whether an employment relationship exists.  In other words, there is no single fact which is determinative, but the WHD (or the courts) will look to several factors to determine if an employment relationship exists.  Factors generally reviewed include: whether the potential employer determines the rate and method of payment, whether the potential employer has the power to hire and fire, and whether the potential employer controls the worker’s schedule or conditions of employment. Continue reading

Oklahoma legalizes medical marijuana – the real impact on Oklahoma employers.

On June 26, 2018, the voters of Oklahoma passed state question 788 legalizing medical marijuana.  Much has been written about the law, some true and some embellished.  There is now a rush to find out what this means.  My advice to employers, take a moment.  Consider the text of the law.  Consider how this will impact your place of employment and how it will not.

The gist of the law is that employers cannot discriminate against an applicant or employee because that person has a medical marijuana license or because such person holding a medical marijuana license has a drug test showing positive for marijuana or its components.  Of course, that goes out the window if there are federal laws or regulations which trump this state law.

Immediately, the impact on your place of employment is answering the many questions you will get.  Be ready for that.  Here are two overriding themes to keep in mind.

First, you can still prohibit the possession and use of marijuana at work and during working hours – even medical marijuana.  That hasn’t changed.

Second, marijuana is still illegal under federal law.  So, for example, if you are subject to the Drug Free Workplace Act or if you have employees subject to federal Department of Transportation drug testing regulations, that is still in place.  Federal law doesn’t recognize “medical” marijuana, and state question 788 doesn’t change that. Continue reading


This review of the Department of Labor’s recently-announced Payroll Audit Independent Determination (“PAID”) program comes with side of skepticism.  With all new voluntary programs, trust but verify.

PAID was rolled out in March 2018 with much fanfare about its benefits.  PAID is a 6-month pilot program sponsored by the DOL’s Wage and Hour Division (WHD) whereby an employer can voluntarily engage in a self-audit of its payroll practices.  If that audit reveals suspected or actual violations of overtime or minimum wage provisions of federal law, the employer discloses those to the WHD.  Specifically, the employer must identify the violations, the affected employees, the timeframe, and a calculation of back wages owed to each affected employee.  The WHD then begins a process with the employer to identify and remedy violations.  The process will likely include the WHD asking for information which must then be provided. Continue reading

Employers and the Impending School Walkout

If you are an Oklahoma resident, you are no doubt aware of the possibility that on April 2 many school districts will shut down as teachers, administrators, and staff walkout in protest of the lack of education funding in Oklahoma.  Why is this an issue in an employer’s blog?  Well, we can discuss the need for an educated workforce or the economic benefits of a well-regarded educational system, but right now there is a more immediate concern – your employees with school-aged children.

On April 2, it is likely your employees with school-aged children will have to make alternative arrangements for those children or be absent from work.  This will undoubtedly be a significant stress on your employee (and, thus, on your company).  Continue reading

Oklahoma court requires strict adherence to the statute on non-solicitation provisions

In many areas of the law, things are similar from state to state.  Certainly, federal laws help ensure laws are similarly applied regardless of location.  This is why we can look to other states when we talk about things such as race or gender discrimination; they are governed by Title VII, a federal law.  On the other hand, there are areas of employment law that differ dramatically from state to state.  The manner in which an employer can restrict an employee after separation is one such area.

While many states favor an employer’s right to reasonably restrict a former employee’s actions after termination (e.g., non-competes, non-solicits), Oklahoma does not.  Oklahoma favors the right of individuals to work in the profession of their choice over the rights of an employer.  In fact, in Oklahoma, most non-competition agreements are simply void.  In other words, you cannot forbid someone from competing with his former employer unless a specific statutory exception applies; generally speaking involving the sale of goodwill or as to partners upon, or in anticipation of, dissolution of a partnership.

In 2001, the Oklahoma Legislature passed a specific law designed to strike a balance between the rights of the individual to work and the concerns of businesses.  That law reads: Continue reading

Sixth Circuit Deems Unlawful a Policy Requiring Employees to Repay Advanced “Draws” Upon Termination

The employer, hhgregg, Inc., has a compensation system where the sales employees (non-exempt) are paid commissions.  They are advanced a “draw” in any week in which they do not make enough sales to have the commission payments cover the minimum wage requirements.  The “draw” is then deducted from future commissions.  Upon termination, the employee – per policy – is required to immediately repay any outstanding draws.

A collective action was brought against hhgregg, and various wage and hour claims were asserted.  We are going to focus on one.

Interestingly, the employees did not focus on the policy which required them to repay any outstanding “draws” upon their termination.  In fact, the company represented it did not enforce that part of the policy.  But, the Court of Appeals found it quite interesting. Continue reading

Transgender Employees Continue to be at the Center of Debate

On October 4, Attorney General Jeff Sessions issued a Memorandum withdrawing the 2014 Memorandum of former Attorney General Eric Holder concerning whether Title VII’s prohibition on sex discrimination included a prohibition on discrimination because of a person’s transgender status.  Attorney General Holder concluded it did.  Attorney General Sessions concludes it does not.  Interestingly, it is a reminder of the purpose of the three branches of government.  Congress as the legislative branch drafts our laws.  The Attorney General as part of the executive branch is responsible for enforcing those laws.  The judicial branch is responsible for interpreting our laws.

Remembering the purpose of each branch is important.  At any time, Congress can clarify whether Title VII prohibits discrimination on the basis of a person’s gender identity, transgender status, sexual orientation, etc.  Until it does so, members of the executive branch, like the Attorney General, will make decisions as to whether to pursue cases based upon that branch’s interpretation of the law.  But, ultimately, the law’s actual interpretation falls to the judicial branch. Continue reading

White Collar Exemptions Continue to Be Awash with Questions

To recap, persons qualifying for what is commonly referred to as the “white collar” exemptions are exempt from the entitlement to overtime pay under the Fair Labor Standards Act (FLSA).  White collar exemptions are the executive, administrative, and professional exemptions.  With few exceptions (like teachers and attorneys) to qualify for a white collar exemption, the Department of Labor (DOL) has required, among other things, positions to be paid a minimum specified weekly salary.

In 2004, the DOL set that minimum weekly salary at $455 per week (which, if one worked 52 weeks in a year, would equal $23,660 annually).  That rate remained the same until 2016 when the Obama administration proposed to increase the rate to $913 per week (or $47,476 annualized), with an automatic accelerator built-in for successive years. The change was set to go into effect December 1, 2016.

As employers began preparing for this increase – be it reclassification of positions, increases in pay, changes in duties, or the like – lawsuits were filed contesting the proposed regulations.  On November 22, 2016, days before the regulation was to take effect, the United States District Court for the Eastern District of Texas entered an injunction, stopping the regulation from taking effect anywhere until such time as the litigation could be resolved.

Time passed.  A new administration took the helm.  The Trump administration was not as excited about the changes as the previous administration, which brings us to today.  Continue reading