The Times They Are a Changin’

So I read this great article on Forbes online today. One of our partners sent it around for us to see. The article, by a guy named Dan Schawbel, who bills himself as a “millennial expert and workplace futurist,” which is a cool title by the way, is titled “10 Workplace Trends You’ll See in 2016.” You can find it at I’ve got to tell you, I like this guy’s style. It’s not workplace trends you may see – no, it’s trends you will see. You have to like that kind of confidence.   As a matter of fact, I liked it so much that I thought I would do the same thing. Only I’m going to tell you about labor and employment law trends that you will see in 2016. And because I’m not nearly as creative as Mr. Schawbel and because I only get 800 or so words for this article, I’m only going to tell you about one trend you will see in 2016. How’s that for courage? So without further ado, that trend is . . . I need a drum roll here, don’t I? . . .

Independent Contractors are About to Become as Common as the Dinosaur

Back in July of 2015 the Administrator for the Wage and Hour Division of the Department of Labor issued Administrator’s Interpretation No. 2015-1. It was titled “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors.” Snoozer, right? But it’s really important. It’s 15 pages long and it purports to clarify the standards for when a worker is an independent contractor. Basically, in a highly simplified way, the Guidance says that if the worker is economically dependent on an employer, that worker is an employee. The Guidance gives a bunch of tests and examples but boils it down to this: “Is that worker really in business for himself or herself?” The Guidance ends by saying, “In sum, most workers are employees under the FLSA’s broad definitions.” Doesn’t sound good if you use a lot of independent contractors, does it? And that is not all.

Uber, that uber cool ridesharing company, is being sued in California for misclassifying its drivers as independent contractors. In O’Connor, et al., v Uber Technologies Inc., et al., Case No. 3:13-cv-0386, the judge recently certified a class action alleging that Uber drivers are employees whom Uber has improperly classified as independent contractors. And in a similar suit, Uber competitor Lyft was recently denied summary judgment in a suit alleging similar misclassification issues. See Cotter v. Lyft, Inc., Case No. 13-vc-0465-VC.

Oh, and some states are weighing in too. In Uber Tech., Inc., v. Berwick, Case No. CGC-15-546387, the California Labor Commission determined that Uber driver Barbra Berwick was an employee and not an independent contractor.

So what, you say – all that is out in California and I am in the Midwest (at least you probably are if you are reading this) and that is true. But don’t forget, the Guidance is from the Department of Labor, a federal agency, and the two California cases are applying the FLSA, a federal statute, and they apply to you too. Even if your business is not as hipster chic as Uber.

So what do I do, Steve? I can hear you saying that from way over here. Well, here are some things to consider:

First, we have to get a handle on the scope of the issue for you. How many independent contractors do you use and what do you use them for? Where do you get them? And who are they?

Second, once we know who they are and what we are doing with them, let’s look at whether we have a problem. Are these folks properly classified?

And finally, if we have a problem, how can we fix it? And here you have some options, things like hiring these folks as employees, or sending them to a temp agency. Things like that.

Oh, and one more little piece of advice. Before you do this all yourself, or worse yet, hire a consultant to do it for you, remember that any documents you or your consultants create will be discoverable if you do get sued. On the other hand, communications between you and your lawyer for the purpose of securing legal advice are covered by the attorney-client privilege and documents produced by your lawyer may be covered by the work product doctrine. Keep that in mind when you are deciding who to call.


Exceptions. Deductions from Exempt Employee’s Salary . . . . Again.

Last time we talked about the general rule regarding the Salary Basis Test. Remember, According to the regulations, to meet the salaried basis test, your employee has to “receive each pay period . . . a predetermined amount . . . which is not subject to reduction because of variations in the quality or quantity of the work performed.” The regulations go on to say “Subject to the exceptions provided in paragraph (b) of this section, an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days of hours worked.”

Hold it just a second, what do you mean EXCEPTIONS PROVIDED IN PARAGRAPH (b)? That’s right, there are exceptions. Wouldn’t be a very good rule if there were no exceptions now would it? So what are these exceptions you ask? Well let me just tell you. You can make a deduction from a salaried employee’s pay for:

  • Absences of one or more full days for personal reasons, not sickness (NOT ½ DAYS, FULL DAYS, so if the employee is out for a day and a half you can only deduct for the full day);
  • Absences of one or more full days for sickness, if you have a sick pay plan that replaces the pay;
  • Off sets (not full day deductions) for amounts received for jury duty, military leave or attendance as a witness;
  • Penalties imposed in good faith for infractions of safety rules of MAJOR SIGNIFICANCE (one of the examples given is smoking in the explosives plant);
  • Unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules in accordance with a WRITTEN POLICY APPLICABLE TO ALL EMPLOYEES;
  • Time not worked in the first or last week of employment;
  • Time not worked when an employee is on FMLA LEAVE.

29 CFR §541.602(b).

So, if the employee is paid on a salaried basis how on earth do you decide what to deduct?

When calculating the amount of a deduction from pay allowed under paragraph (b) of this section, the employer may use the hourly or daily equivalent of the employee’s full weekly salary or any other amount proportional to the time actually missed by the employee. A deduction from pay as a penalty for violations of major safety rules under paragraph (b)(4) of this section may be made in any amount.

29 CFR §541.602(c).

OK, now before you get all worked up, let me throw in this caution. You mess these up and take an improper deduction and you have a problem. A big problem. So, before you do any of this CALL YOUR LAWYER. And stick around for next time when we talk about what happens if you do mess this up.


And if all of this seems familiar, it is. I posted this before. You can see it here.

The Salary Basis Test.

Last time we talked about the amount of salary to qualify for the White Collar exemptions, this time we are going to talk about the “salary basis test.” What you ask is the salary basis test. Great question. I’m going to answer it. Well, I’m going to let the regulations answer it:

An employee will be considered to be paid on a “salary basis” within the meaning of these regulations if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided in paragraph (b) of this section, an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. Exempt employees need not be paid for any workweek in which they perform no work. An employee is not paid on a salary basis if deductions from the employee’s predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.

29 CFR §541.602(a).

So that is the general rule. Any week in which an exempt employee does any work, the exempt employee has to receive all of their salary (which has to be at least $455 for the week at least for now, but see my last post for the increase that will happen when the new regulations are finalized.   You can see is here) and it CAN’T be “subject to reduction because of variations in the quality or quantity of the work performed. . . . , an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked.” Id.

But that is just the general rule and there are exceptions. And we will talk about those next time.

The Salary Requirements . . . for Now.

Now we have to skip around a bit in the Regulations. You see, in order to be exempt, an employee generally has to meet the salary requirements and the duties requirements for the exemption that is applicable. So it would seem logical that the way to write the Regulations would be to do the intro, which we talked about last time, and then discuss the salary requirements that apply to all (well, most) of the various exemptions and then talk about the individual duties. It would make complete sense to do it that way, so of course that is not the way the government did it.

So let’s you and I be logical and hit the salary test first. To do that we skip down to Subpar G of part 541 of the Regulations. And we are going to start with how much salary is required. And before we do that I need to say this:


What? Then why are we doing this? Because I’m sick of waiting. So I’ll do my best. Again, how much do I need to make to be exempt? Right now, not much.

To qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an employee must be compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities. Administrative and professional employees may also be paid on a fee basis, as defined in §541.605.

29 CFR §541.600(a).

By the way, if you did the math, in order to be paid on a salary basis, you only need to be paid $23,660 per year. Now when the proposed Regulations are finalized, that number will go to “an amount that is equal to the 40th percentile of weekly earnings for full-time salaried workers” which for 2016 is estimated to be $970 per week or $50,440 annually. So while the numbers are going to change, the principle should stay the same. So on we go.

But I don’t pay my exempt employees by the week, you say. I offer them an annual salary and pay bi-weekly, so do I still get the exemption? Yep.

The $455 (FOR NOW) a week may be translated into equivalent amounts for periods longer than one week. The requirement will be met if the employee is compensated biweekly on a salary basis of $910 (FOR NOW), semimonthly on a salary basis of $985.83 (FOR NOW), or monthly on a salary basis of $1,971.66 (FOR NOW). However, the shortest period of payment that will meet this compensation requirement is one week.

29 CFR §541.600(b). (And in case you are wondering, yes, I added the (FOR NOW). That is not in the Regulations.

So that is the basic rule. But right off the bat, before we even get out of this Regulation, there are some exceptions to this basic rule. For example, academic administrative employees meet this requirement if they are paid “on a salary basis at a rate at least equal to the entrance salary for teachers in the educational institution by which the employee is employed.” 29 CFR §541.600(c). And for certain computer employees, you can actually pay an hourly rate as long as it is at least “$27.63” per hour. And that is $27.63 per hour, not $27.62. Who comes up with these things? 29 CFR §541.600(d). And for professional employees who are teachers, lawyers or doctors and who are actually engaged in teaching, the practice of law or medicine, or are medical interns or residents, this section does not apply at all. That’s right, you don’t have to pay them a salary, you can pay them by the hour. And frankly, we will have to wait for the final Regulations to see what will happen to these numbers.

And that is not all. If an employee makes $100,000 per year and customarily and regularly performs any one or more of the exempt duties of an “executive, administrative or professional employee” that person is also exempt. In short, that means that if your employee makes $100k per year, that employee does not have to meet the entire duties test. That is a simplified way of putting it, but that is the basic rule. 29 CFR §541.601. Oh, and you get to prorate this in the first and last year of employment without losing the exemption. And the $100k does not have to be all “salary”, it can include commissions, nondiscretionary bonuses, stuff like that. And under the proposed Regulations, what happens to this number? Well, under the proposed Regulations “the highly compensated employee annual salary will be set at the 90th percentile of earnings for full-time salaried workers or an estimated $122,148 annually in 2016.”

So Steve, what the heck do I do between now and when the proposed Regulations are finalized? If you have salaried employees making more than $23,660 but less than $50,440, you might want to give us a call. We have some work to do.

White Collar Exemptions even if your collar isn’t white.

Oh man has it been a while. But the last time we were in this series we were going to start talking about “exemptions” and then we had proposed regs and then I got really busy and well, you know how it goes. So back to Exemptions.   And by exemptions I mean not having to pay overtime. That is what you thought I meant right? And we are going to start with the biggest category of exemptions, the White Collar Exemptions. I love that old school term. According to Wiki:

 The term refers to the white dress shirts of male office workers common through most of the nineteenth and twentieth centuries in Western countries, as opposed to the blue overalls worn by many manual laborers.

 The term “white collar” is credited to Upton Sinclair, an American writer, in relation to contemporary clerical, administrative, and management workers during the 1930s, though references to white-collar work appear as early as 1911.

 I love the term because I am a so called “white collar worker” but I don’t wear that many “white collars.” Mine tend to be a bit more colorful.


So what do the regulations mean when taking about this particular topic? Excellent question:

(a) Section 13(a)(1) of the Fair Labor Standards Act, as amended, provides an exemption from the Act’s minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of an outside sales employee, as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the Administrative Procedure Act. Section 13(a)(17) of the Act provides an exemption from the minimum wage and overtime requirements for computer systems analysts, computer programmers, software engineers, and other similarly skilled computer employees.

29 CFR §541.0

Look at the list, now you know.   Seems like an easy solution to having to pay overtime right, just classify your employees as “executive, administrative or professional” and away you go. Not so fast. First, the regulations make it clear that a job title alone is not enough. “A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee’s salary and duties meet the requirements of the regulations in this part.”   29 CFR §541.2.

If I can’t just change the job title, how do I meet one of these exemptions. For there are whole lists of jobs that are excluded: (a) The section 13(a)(1) exemptions and the regulations in this part do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy.” 29 CFR §541.3(a).   Similarly,

(b)(1) The section 13(a)(1) exemptions and the regulations in this part also do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

 29 CFR §541.3(b).   Why not? “Such employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as required under §541.100.” “Such employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer or the employer’s customers as required under §541.200.” And “Such employees do not qualify as exempt professionals because their primary duty is not the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as required under §541.300.” Id. at (2)(3) & (4). That’s why.



IT TOOK A YEAR TO COME UP WITH THIS . . . you’ve got to be kidding!

No, they are not kidding. On Tuesday, June 30, 2015, the long awaited proposed rules on the so‑called “white collar” exemptions under the Fair Labor Standards Act were released by the Department of Labor. You remember the proposed regulations, right? About a year ago, the President directed the DOL to look into the exemptions and determine if changes were in order. Seems they were.

So finally, after a year, we have those changes. 295 pages of them. That seems like a lot of proposed changes, but wait . . . . most of that 295 pages is a history lesson on the previous changes. There are really only two big proposed changes in the regulations and both of them have to do with the salary level test. Before we get into those, let’s recap a bit – if it’s good enough for the DOL, it is good enough for us too.

In order to be exempt from overtime under the white collar exemptions, an employee must meet three tests. The salary basis test, the salary level test, and a duties test. The salary basis test means that an employee is paid a fixed salary in each workweek that does not vary depending on the quality or quantity of the employee’s work. That one is unchanged in the proposed regulations. The duties test is what the exempt employee’s job is. Or what the employee does. There are executive, administrative, professional, outside sales, and computer professional duties tests. Again, no change in the proposed regulations . . . BUT . . . the DOL is asking for comments on whether there should be changes. So stay tuned.

And finally, there is the salary level test and here is where the big change comes in. The current salary level test for the white collar exemptions is $455 per week or $100,000 per year for highly compensated employees. $455 per week is $23,660 per year and that amount is actually below the poverty level for a family of four. The proposed regulations will change how the salary level is set from this flat amount to an amount that is equal to the 40th percentile of weekly earnings for full-time salaried workers. The proposed regulations estimate that in 2016 that will be $970 per week or $50,440 annually. In addition, the highly compensated employee annual salary will be set at the 90th percentile of earnings for full-time salaried workers or an estimated $122,148 annually in 2016. That is a big change. In fact, according to the DOL, about 11 million employees will be impacted.

But there is another big change. For the first time ever, the DOL is proposing that the salary level automatically update on an annual basis without having to go through additional notice and comment rule making. They haven’t decided how yet, but are proposing either a percentile of earnings for full-time workers’ basis or changes based on inflation.

Now that you know all this, what do you do? Well first, don’t forget that these are proposed regulations. There is a 60 day public comment period, so the first thing you might want to do is comment. That having been said, the salary level is not likely to change and that or a number very close to it will likely be the final rule.

The next thing you ought to do is figure out how many of your employees fall within the gap. How many exempt employees do you have that make more than $23,660 and less than $50,440? Once you have that done you have some time to decide how to react. And you can react in several ways. You can leave everything alone, continue to pay a salary to these folks and pay them overtime when they work overtime, or make sure that they don’t work overtime. For those that are close, give them a raise to get them above the $50,440. Or you can convert these folks to hourly pay rates. But whatever you decide, remember this – for all those employees who used to be exempt and soon will not be, once the proposed regulations become final and take effect, you MUST begin keeping records of hours worked.

How not to Contribute to the Talent Shortage or What the Heck are my Supervisors Doing?

I have been watching some of the Mackinac Policy Conference live stream on Detroit Public TV online this week. You can find it at

One of the things I am hearing over and over again is that we have a talent shortage. Seems like it is a talent shortage everywhere in Michigan and it runs across occupations, from a shortage of engineers to a shortage of skilled tradespersons. It is a problem, a significant problem, and one that we are not going to be able to solve overnight. We will solve it, we will get people educated and motivated. But it is going to take time and we all know that. So what do we do in the meantime? I know, how about we spend a little time talking about keeping the talent we already have?

So let’s start with why people leave good jobs. If I asked you that question, what would you say? Would you say that people leave because they can get more money someplace else? You might, and a lot of people would agree with you. But you would be wrong.

In her article Strategies for Retaining Employees and Minimizing Turnover, Sarah K. Yazinski, an Admissions Counselor at the University of Scranton, cites strategic planning consultant Leigh Branham, SPHR, who claims:

“88% of employees leave their jobs for reasons other than pay: However, 70% of managers think employees leave mainly for pay-related reasons. Branham says there are seven main reasons why employees leave a company:

  1. Employees feel the job or workplace is not what they expected.
  2. There is a mismatch between the job and person.
  3. There is too little coaching and feedback.
  4. There are too few growth and advancement opportunities.
  5. Employees feel devalued and unrecognized.
  6. Employees feel stress from overwork and have a work/life imbalance.
  7. There is a loss of trust and confidence in senior leaders.”

Think about that. 88% of people leave a job for reasons other than pay. And then think about the disconnect. 70% of managers think it is all about pay. I wonder why that is? I could speculate, but it wouldn’t be flattering. So what do you do, how do you keep people?   Elena Bajic is the founder and CEO of She is also a contributing author to Forbes online. Ms. Bajic outlines 6 steps for retaining good employees:

  1. Communicate, communicate, communicate.
  2. Coach rather than manage.
  3. Establish clear performance metrics and make employees accountable for delivering.
  4. Leverage performance reviews to gain insights into employee’ goals and aspirations.
  5. Create growth opportunities.
  6. Underscore positive feedback with something tangible.

You know what? I think that is a pretty good list. And when you take Ms. Bajic’s list and compare it to the reasons employees leave jobs, you see that there is a lot of overlap. I get too little coaching and feedback. No problem, we are going to coach rather than manage. I feel undervalued. No problem, we are going to provide something tangible (no, it does not have to be money) for positive performance. I can’t grow or advance. No problem, I will create growth opportunities.

And you know what else I find striking about Ms. Bajic’s suggestions? Every one of those 6 steps (except maybe number 5) is accomplished by frontline supervision. Sure, you need upper management buy-in. And yes, you need help from HR. But it is really about frontline management.

So ask yourself this, how equipped are your frontline supervisors to do this? Now be honest! And that gets us to what is the job of a supervisor. I’ve said this before and now I’m going to say it again, it is not making widgets, or breaks or bumpers. And if you think it is, then you are probably part of the disconnect. So, I’m a supervisor; what exactly do I do for a living?

The answer should be that I motivate and inspire people to do a better job. In short, I make sure I have happy people who are satisfied with their work so that they in turn can be more productive and make better widgets in a more cost-effective manner to contribute to the bottom line.

Is that what your supervisors do? Or better yet, are you hiring and promoting supervisors who have these talents? Do you screen for talents like communication skills and empathy? Or do you just promote the best widget maker? If you are doing the former, you are way ahead of the curve. If you are doing the latter, you have some work to do.

And that is where we start. Yes, we have a talent shortage and, yes, it is going to take time to develop that talent. So shouldn’t we do everything we can to keep the talent we have? Sure we should, and we do that by making sure that our frontline supervisors are equipped to do the job they should be doing. Motivating and inspiring people to do their jobs better and ensuring that they feel valued when they do. And we reward them when they do it right. So here is your homework. Take a look at what your criteria is for hiring and promoting supervisors. Are you screening for the right skill set? If not, change the criteria. And once that is done, ask yourself this: Are we rewarding supervisors properly? Are they judged simply on production numbers? If so, why? Why don’t we reward supervisors for lower employee turnover numbers? Why don’t we reward supervisors for increased employee job satisfaction? We should, and if we do we will keep the good people we have. And that is how we start solving the talent shortage problem. It is not the whole solution, but it is a start. And it is something we can do right now.

Department of Labor Issues Updated FMLA Forms

If you have been dealing with FMLA issues for the last month or so, you have probably noticed that the core FMLA forms available on the Department of Labor’s website expired on February 28, 2015. Or maybe you didn’t notice. If you didn’t, don’t worry, most people didn’t.

With very little, ok no, advance notice, the DOL over the Memorial Day holiday issued updated FMLA forms. The new forms are available on the DOL’s website. You can find them here:

I’m not entirely sure why it took the DOL so long to issue the new forms or why they felt they had to do it over the holiday with no notice. As far as I can tell from a quick review, the only substantive change in the forms from the expired ones is the addition of Genetic Information Nondiscrimination Act (GINA) language to the medical certification forms.

So, that stack of forms you printed out and have in a file cabinet? Throw them away and print out the new ones.

Moving On. Eventually.

First of all, I’m back. Given what a great job Emily did making my life easier and drafting the last 8 or so posts on the FLSA, I’m not sure that me being back is such a good thing for you, but I’m back anyway. And why am I back you ask, why not keep letting some young associate draft these posts? Well let me tell you why. Mostly it’s because after the first of the year all of our new young associates have to start earning their keep. That means billing hours to clients and contributing to the bottom line. And while this little old blog of mine certainly contributes to the bottom line indirectly, it doesn’t do so directly, so all the time spent writing this does not count toward a young associate’s billable contribution to the firm. And while I am sure there are some older lawyers out there that are perfectly happy making a young associate do work that they don’t actually get any credit for, I like to think I am not one of them. So, I’m back. Sorry if you don’t like that. Write Emily, maybe she will start her own blog.

So, is that what the title of this one is all about, moving on from Emily? Sort of, but it means more than that. It means we are moving on from the regular rate and what goes into it and how to compute overtime. There are more regs on that topic, but we have hit the high points, so we are going to leave the detail stuff out and move on to something else. What you say?

Exemptions, that’s what. Yes, after all that time we talked about how you compute overtime, we are going to start talking about who does not have to be paid overtime. And we are going to start with the big ones, the White Collar Exemptions. You all know what they are and we are going to spend some time in them. And before we get into the detail, let’s get one thing out of the way. A lot of you call these people “salaried” employees. That is not right. Just because you pay an employee a salary, does not mean you don’t have to pay them overtime. I am going to explain that over the next couple of weeks. But for now, just take my word for it. But here is one other caution and the reason why we are not just moving on quickly.

The Department of Labor was supposed to have issued new proposed regulations on this very topic by now. And I thought, just by luck mind you, that I had the blog timed pretty well to hit this topic as the proposed regulations came out. Unfortunately, the proposed regulations have been delayed. Here is what we know, nothing. No that’s not true. What the DOL is now telling everyone is that we can expect the proposed regulations sometime this “spring.” Now here in Michigan, that means July. Just kidding, it only feels that way. Hopefully before the end of May. And once we get the proposed rules I will start back up again. In the meantime I’m sure something will pop up to keep us busy.

See you next time.

Losing Sight of the Forest for the Trees . . . or maybe the Trees for the Forest? Either way, it’s bad.

Someone who can’t see the forest for the trees has typically become so focused on details that he or she begins to ignore the overall situation. . . . As early as the 1500s, “you can’t see the forest for the trees” was in wide enough use that it was published in collections of proverbs and slang.

* * *

This proverb is also sometimes reversed, as in “you can’t see the trees for the forest,” referencing the idea that it is also possible to be too broad when looking at a situation. Someone who makes sweeping pronouncements without considering various details could exhibit just as much of a logical flaw as someone who only focuses on the details.

See -for-the-trees.htm.

I haven’t decided which one of these applies, but on March 31, 2015 the NLRB lost sight of something that’s for sure.  Maybe it was common sense? In a case called Pier Sixty, LLC, 02-CA-068612 and 02-CA-070797 (March 31, 2015) the Board found that the employer Pier Sixty violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it fired an employee for posting on his Facebook page that his supervisor was a “NASTY M—ER F—ER.” That’s right, the Board ordered reinstatement of the employee who posted that language on a Facebook site that could be viewed by, according to the Board, “his Facebook friends, which included some coworkers and to others who visited his personal Facebook page.” OK, so let that sink in a bit, and I will try to catch my breath before I try to explain what the Board did here.

So here is exactly what this classy guy posted:

Bob is such a N—Y M—ER F—ER don’t know how to talk to people!!!!!! F–k his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

OK, it’s not exactly what he posted; he filled in the blanks. And when one of your employees posts something like this, you want to fire him, right? Of course you do, and when you call me and ask me if it is legal to do so, I was going to say, yes it is. And, at least according to the Board, in this case, I would be wrong. You see, the Board said:

“We agree with the judge that Perez’ Facebook comments, directed at McSweeney’s asserted mistreatment of employees, and seeking redress through the upcoming union election, constituted protected, concerted activity and union activity. As stated by the judge, “Perez’ Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers, including McSweeney.” Toward that end, Perez’ Facebook posting protested such mistreatment and exhorted employees to “Vote YES for the UNION.”

“We also agree with the judge that Perez’ comments were not so egregious as to exceed the Act’s protection.”

What? Or, if I was the employee in this case, WHAT???????

That is seeking redress of mistreatment through the upcoming union election? That is “not so egregious”? You have got to be kidding me!

Easy, easy now. So how did the Board get to this decision? Well, they used a 9 factor test from a previous case.

“In evaluating Perez’ posting under the totality of the circumstances, the judge considered the following factors: (1) whether the record contained any evidence of the Respondent’s anti-union hostility; (2) whether the Respondent provoked Perez’ conduct; (3) whether Perez’ conduct was impulsive or deliberate; (4) the location of Perez’ Facebook post; (5) the subject matter of the post; (6) the nature of the post; (7) whether the Respondent considered language similar to that used by Perez to be offensive; (8) whether the employer maintained a specific rule prohibiting the language at issue; and (9) whether the discipline imposed upon Perez was typical of that imposed for similar violations or disproportionate to his offense.”

And then, after an “objective review” of these factors the Board said: “We find that an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.” Now the Board went through each one of these factors and found that they did not support termination of the employee. But here are my two favorite comments:

“The location and subject matter of Perez’ post (factors four and five) also do not weigh in favor of finding that Perez’ comments lost the protection of the Act. He posted his comments while alone, on break, and outside the Respondent’s facility. There is no evidence that his comments interrupted the Respondent’s work environment or its relationship with its customers. Further, his comments echoed employees’ previous complaints about management’s disrespectful treatment of service employees and encouraged employees to vote in favor of union representation.”

He posted his comments “while alone, on break and outside.” Are you kidding me? He posted his comments on Facebook where, as the Board itself admitted, they could be viewed by “his Facebook friends, which included some coworkers and . . . others who visited his personal Facebook page.” But wait, as the Board said, these comments encouraged employees to vote in favor of the union? Again, are you kidding me? Does that mean if I stick “Vote YES for the UNION” on any statement I make, it gets the protection of the Act?

And here is my second favorite “rationalization” in this opinion: “Nor was Perez’ reference to McSweeney’s family beyond the Act’s protection. We agree with the judge that Perez’ comments were not a slur against McSweeney’s family but, rather, “an epithet directed to McSweeney himself.” Of course it was. I wasn’t really talking about your family, I was talking about you. And that makes it so much better.

And just one more little thing, the Board actually said: “Although we do not condone Perez’ use of obscene and vulgar language in his online statements about his manager, we agree with the judge that the particular facts and circumstances presented in this case weigh in favor of finding that Perez’ conduct did not lose the Act’s protection.” Sorry, but it looks to me like the Board does condone his language. After all, they gave him his job back.

What does all this mean? Well, strictly speaking from a legal point of view, it means that these social media cases, which were hard enough to figure out just got harder. It means that no matter what an employee says, no matter how bad it is, if you have a union election campaign going on, you need to look at everything that is going on in the workplace before you fire him.

And it seems to me it means one more thing. The Board has lost sight of the forest for the trees.

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