Archives for October 2014

Hard-Working Job Descriptions

Hard working job desc.

The next time you sit down to write your employee job description, consider dedicating some time to ensure that the description is clear and comprehensive. A proper job description can increase your business productivity and minimize legal liabilities. Consider the following functions of your job description:

  • Attract your ideal candidate: Job seekers often self-screen through job descriptions, attract the most suitable candidates by providing them with comprehensive descriptions.
  • Organizational Management: Writing a job description can help you think through your organization needs, workload allocation, and division of labor. A clear job description not only helps the prospective applicant, but also your internal management.
  • Expectation & Accountability: Help employees understand their role and your expectation at the onset so they are not surprised during the evaluation. For example a clear job description should place different emphasis on tasks so the employee knows how to prioritize work time.
  • Set the Benchmark: Your job description should set the standard for the position. From a clear standard you will be able to reward employees who excel with minimal accusations of discriminatory pay (Equal Pay Act). You can also defend against unfair hiring claims with your standard. The benchmark also helps you assess your business progress and human resource needs.
  • Documentation: During performance evaluations, disciplinary actions, and termination planning, you should use the job description to document and support your rationale. Consistent documentation can be helpful in wrongful termination suits.
  • Exempt vs. Nonexempt: Under the Fair Labor Standard Act, you must pay nonexempt employees overtime for working over 40 hours a week. Your job description should indicate if the position is exempt or nonexempt.
  • Highlight Essential Functions: Under federal law (American Disability Act, Pregnancy Disability Act, Family Medical Leave Act, etc.) you are required to give reasonable accommodations to employees if they are able to perform the essential functions and to redistribute marginal functions. By identifying essential and non-essential functions in your job description, you avoid these types of law suits.
  • Physical Requirement: At some point, your employee may have to take some time off for medical reasons. A proper job description with the necessary physical requirements will help their doctor determine if they can safely return to work. It will also help you determine if you must place your employee on light duty or make other accommodations.

Your job description can be a useful tool for your business. Be sure to continuously use and update your job descriptions so that they can properly serve you. By incorporating the job description in different aspects of your business, from hiring and orientation to discipline and termination, you optimize the use of the description and give yourself numerous reminders to update it.

Ten Issues to Consider in Your Company’s Social Media Presence

  1. Businessman with social media concepts




  1. Trademark, Cybersquatting or Impersonation-

Social Media sites do very little to prevent anyone from adopting usernames and using trademarks that belong to someone else. They can misdirect traffic from your customers and create confusion. Trademark owner bears the responsibility of monitoring these sites.

  1. Trademark Infringement is Rampant in Social Media-

Bloggers, video posters and chat room participants frequently use trademarks without licenses. These individuals believe they are just chatting and do not realize they are infringing. Enforcement of this is almost impossible because of the sheer volume of infringement and the speed at which the infringement can spread.

  1. Unsolicited Ideas and Brand Damage-

With social media posts in the hands of the consumers, they are impossible to control. The company needs to actively monitor the posts for intellectual property infringement.

  1. No Back Up of Intellectual Property-

Often social media sites have terms and Conditions of Service that allow them to shut down at any time, without notice to the account holder. Failure to back up the company’s posts and blogs may result in a loss of intellectual property.

  1. User Generated Content-

This is material generate by the public and uploaded to a company’s site. This is a very important piece to social media because it creates the interaction between the company and their customers. The company should have posted policies to prevent the submission of material that are copyrighted.

  1. Are Tweets protected by Copyright?-

The answer to this is generally, No. The company needs to decide if it is valuable to them to make their thoughts available to the general public in a format that may not be protected by copyright.

  1. Unauthorized Disclosure of Trade Secrets by Employees-

This is a risk a company takes when they do not have appropriate internal policies in place regarding sharing confidential information or trade secrets through their social media sites.

  1. International Laws govern Social Media-

Users and reach of social media are international. Companies who are looking to protect their trademarks have to try and keep up with monitoring them globally. This is a huge undertaking.

  1. Ownership of the Social Media Account-

Frequently a company will ask an employee to set up and manage their social media site. Who owns the account? Companies should consider clearly addressing the ownership of company social media accounts in agreements with their employees, such as employee proprietary information and invention assignment agreements. Agreements like this should state, in part, that all social media accounts that employees register or manage as part of their job duties or using company resources – including all associated account names and handles, pages, profiles, followers and content – are the property of the company, and that all login information and passwords for such accounts are both the property and the confidential information of the company and must be returned to the company upon termination or at any other time upon the company’s request.

10.  Ownership of the Followers-

If an employee is asked to manage a site they essentially become the “voice” of the company and his or her style and personality may be essential to the success of that site. As a result, the lines between “brand” of the company and the “brand” of the individual may become blurred. And when the company and the individual part ways it can create issues regarding the ownership of the related social media accounts and followers.

Termination Based on a Leave of Absence

leave of absence

Most employers are aware that employees may be eligible for leave under the Family Medical Leave Act (“FMLA”) to receive a maximum of 12 week per year. If the employee on leave wants to file for additional time off, employers should proceed cautiously. While the employee may no longer be entitled for the additional leave under FMLA, employees may be entitled to continued leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).


Example: An employee protected under the ADA asks for an additional week off to fully recuperate from a serious illness after already taking 12 weeks off under FMLA.


If the employer does not face undue hardship from this additional week, the employer is obligated to…

  1. Allow the employee the additional week off with health insurance, provided that the employee pays her premium.
  2. Return the employee to her original position, assuming they are qualified to perform the essential functions of her job (with or without reasonable accommodation).
  3. If reasonable accommodation to return her to her original position cannot be made, then the employer must still reassign the employee to an available vacant position that the employee is qualified for with or without accommodation.


As you may have noticed, the employer’s responsibility under ADA is more extensive than in FMLA and requires a separate analysis. Under FMLA, employers may terminate the employee if they are no longer able to perform the essential functions of their original position after the 12 week period. An ADA analysis is more unpredictable. The employer’s obligations under ADA are primarily dependent upon any undue burden on the business, which includes significant costs, disruptions, and safety concerns that may arise from the employee’s absence.


The employer’s ability to prove undue burden can be difficult. In order to better protect themselves, employers should…

  • Confirm their employee handbooks indicate that leave is granted after an individual assessment. Employers may not apply a no-fault termination policy!
  • Maintain updated and (physically) descriptive job descriptions so that the essential functions of the job are clear.
  • Proactively assess an employee’s FMLA and ADA qualification when an employee requests leave.
  • Engage the employee in an interactive process (communicate and document interactions regarding ability and time of return) throughout the employee’s absence. If you do not attempt to engage in conversations, you lose an important defense if the case is litigated.
  • Document the effects of the employee’s absence…
    • Any decrease in productivity from temporary workers or workers assigned the employee’s tasks
    • Lower quality of work
    • Lost sales
    • Customer service issues
    • Deferred projects
    • Management burden increases
    • Co-worker stress increases
    • Decrease in morale


Employment termination based on leave requests can be fraught with legal liability. Call us before finalizing these decisions to avoid costly discrimination litigation.


timeclockAlthough there is no Nevada law regarding time clock rounding the Office of the Labor Commissioner recently conducted a thorough review of statutes, regulations and case law. The Nevada Labor Commissioner issued an Advisory Opinion that time clock rounding can be appropriate as long as, over time, the employee is properly compensated for all time actually worked.

The practice of time clock rounding has been around a long time. If you are an employer that currently uses this practice, beware. There has been a significant increase in lawsuits filed by employees under the federal Fair Labor Standards Act (“FSLA”). The federal regulation on time clock rounding states, “It has been found in some industries, particularly when time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually worked. For enforcement purposes this practice in computing work time will be accepted provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” (29 C.F.R. § 785.48(b)) If you are an employer that believes changing its practice of time clock rounding will cost you money, you could be at risk for a lawsuit.

The Department of Labor (“DOL”) does not prevent employees from suing over rounding. It is uncertain during the course of an investigation, the rounding will show in the employee’s or the employer’s favor. If an employer uses a payroll software program or a computerized timekeeping system that can easily track all time with no rounding, the benefit the employer may receive from rounding does not out weight the risk of a lawsuit.

If you are an employer that does round time, do so consistently and in a manner clear in your record-keeping.  Make sure you state the method clearly in your employment policies and apply it equally to all employees. It will make you less vulnerable to a FLSA claim or lawsuit.  Always check with your attorney before changing any time keeping practices to prevent any issues under FLSA’s requirements.