The Institute provides a thorough update (in both oral and written form) on every new law development impacting those involved with employment law, including an FLSA update, a new “litigators update,” an 8th Circuit case update, an update on retaliation cases, an FMLA case update, and update sessions on EEOC initiatives.  You also receive materials from every session – both those you attend and those you do not – all in the 2010 Employment Law Handbook in a searchable CD-ROM format.

 This year’s Institute also features new “schools” designed around key topics – Discipline and Discharge School; Litigation Strategy School; EEOC School; and International Employment Law School.  There are also 8 Wage and Hour Sessions discussing potential FLSA problems and on FLSA litigation.

I will be talking about “Practical Tips When Non-Compete Agreements are in Play” with my friend Gary Eidelman from Baltimore.  I hope you will consider attending.

What is the secret to having happy employees?  According to this business owner, it’s two-fold: treat them well, and fire the unhappy ones.   “As a manager you cannot make everyone happy. You can try, you can listen, you can solve some problems, you can try some more.  But there comes a point when you are robbing the business of precious time and energy.”  Sometimes people who would be great employees somewhere else just don’t fit your company, whether it is the type of business or the company culture.

This is good advice; all too often I see employers who keep disgruntled employees around for far too long.  In my view, it is better to move them out sooner rather than later (before they have spread their toxicity too much!)

Quck updates this morning on a couple of previous posts, both involving food. 

First, I wrote here about the EEOC’s effort to obtain documents from Schwan’s in a sexual discrimination case.  As expected, Judge Janie Mayeron ruled in favor of the EEOC and has ordered the frozen food company to produce the information sought by the government.

Second, the Supreme Court has agreed to hear the turducken case to consider the privacy rights of government contract employees. 

Now if we could just get the EEOC to investigate the contents of that  turducken!

I just stumbled across an interesting article called “Building a Virtual Law Firm” by Joseph Kashi, an attorney in Alaska.  His article was written six years ago, but it highlights some trends that have only gained speed since then.

Kashi first points out that there is nothing new about “virtual” law relationships; most attorneys regularly associate with, and work closely with, local counsel in other states as the need arises. They collaborate with other attorneys who have expertise in specialized areas.  We use the services of professional and paraprofessional staff who either telecommute or otherwise work off-premises. Attorneys are generally comfortable working with investigators, court reporters, and expert witnesses whom we may not physically meet very often, if at all.

Once we have recognized that these “virtual” arrangements are not a radical departure from our previous ways of practice, we can begin to understand how internet technologies will accelerate this process and create new opportunities.  As Kashi puts it:

Mainstream use of Internet-based legal practice systems will force law firms to change into radically different, flexible practice associations that respond more quickly to market and technological changes. Future law firms will likely adopt a more flexible and democratic horizontal structure that facilitates the quick and efficient flow of critical information, something that’s critical to the quick parry and thrust of almost any law practice. Further, almost every other industry has found that flexible business structures also lend themselves to better profit margins.

Technology has leveled the playing field.  Before computers, law firms depended on large numbers of associates and paralegals to manually collect and process the vast amount of information required by any significant litigation or transaction. This required the addition of intermediate layers to supervise employees and to control the quality of the paperwork as it gradually flowed to the ultimate users.  These additional layers, however, only slows the flow of information to the lawyers who ultimately use it. Too many intermediate lawyers not only reduce the firm’s productivity and responsiveness but also increase overhead and costs, which are usually passed on to the client in one form or another.

By contrast, a virtual law firm will not need to carry the salaries of regular employees, or the costs of fancy downtown offices in which to house them.  Instead, it will rely upon trusted contract professionals and paraprofessionals specially chosen for particular projects.  Clients will no longer be expected to bear the cost of training associates or bring paralegals up to speed on industry specifics.  This flatter structure will lead to greater speed and flexibility in meeting client needs.  Nor will clients be paying for office space filled with filing cabinets and “war rooms”; today, data can be stored digitally for almost nothing, and layers can collaborate virtually via the internet.  These new technologies greatly reduce overhead costs, and therefore, fees billed to the client.

Professionals as diverse as radiologists and university educators are developing new “virtual” models; law firms need to move in that direction as well.

This morning there are a couple of interesting privacy stories that serve as good reminders of best practices in this area.  The first arises in connection with a union arbitration over discipline meted out to an employee of a municipal liquor store in Paynesville, Minnesota.  As you know, these types of arbitrations usually depend largely on the terms of a particular collective bargaining agreement and the specific past practices of the employer.  What makes this matter interesting, however, is that the employee’s bad conduct came to light because the employer was surreptitiously making audio recordings of everything that happened in the store.

As I discussed here,  employers are generally free to use video surveillance techniques (except in places like locker rooms where employees have a “reasonable expectation of privacy”).  It is far riskier, however, for employers to use audio surveillance, especially if the employees are not made aware of it.  Besides potentially violating federal and state laws governing wiretapping, such a practice might also constitute an invasion of privacy.

The arbitration decision in the Paynesville case mentioned above confirms this analysis.  As the arbitrator wrote: “To meet a fairness or just cause standard, employees would need to be told that they would be subject to both audio and visual surveillance and that the information gathered would be used to review their performance, and potentially used as a basis for discipline.”  While non-union employers probably don’t need to include the language about surveillance being used to review performance, the best practice is for employers who chose to use audio surveillance for legitimate business reasons to advise their employees that they are doing so; otherwise, the employee may claim that she had a reasonable expectation that her private conversations would remain private.

The second development involves credit checks on prospective employees.  As this article in yesterday’s Star Tribune discusses, a number of states are considering legislation that would limit employer’s ability to do credit checks on job applicants based on fears that it unfairly harms people in debt because of past financial problems.

As I have written about before, employers should not have blanket policies regarding background checks for applicants. Credit problems and criminal convictions should not be automatic exclusions; rather, they should be evaluated based on the job, the amount of time since the problem, and other factors.  As one Wisconsin legislator quoted in the Star Tribune rightly put it: “If someone is trying to get a job as a turck driver or a trainer in a gym, what does his credit history have to do with his ability to do that job?”

Reports yesterday suggest that the government officials are starting to aggressively pursue companies that misclassify regular employees as independent contractors, at least in part to garner additional tax revenues.   For example, the federal government’s 2010 budget assumes that the federal crackdown will yield at least $7 billion over 10 years, while more than two dozen states also have stepped up enforcement, including stricter penalties for misclassifying workers.

The article relies on unnamed experts who say that a growing number of companies have cut costs by wrongly classifying regular employees as independent contractors, even though they often are given desks and assignments just like regular employees. Moreover, workers may have become more reluctant to challenge such practices, given the tough job market.

Companies that pass off employees as independent contractors avoid paying Social Security, Medicare and unemployment insurance taxes for those workers. Several studies have indicated that, on average, misclassified independent workers do not report 30 percent of their income.

Among the most often misclassified workers are truck drivers, construction workers, home health aides and high-tech engineers.

The question of whether someone is an employee or an independent contract usually turns on questions of who controls how and where the work is performed, but it is often not easy to make that determination.   The Department of Labor does offer some helpful resources, including this article.

A woman in a hot air balloon realized she was lost. She lowered her altitude and spotted a man in a boat below. She shouted to him, 
 
“Excuse me, can you help me? I promised a friend I would meet him an hour ago, but I don’t know where I am.” 
 
The man consulted his portable GPS and replied, “You’re in a hot air balloon, approximately 30 feet above ground elevation of 2,346 feet above sea level. You are at 31 degrees, 14.97 minutes north latitude and 100 degrees, 49.09 minutes west longitude. 
 
“She rolled her eyes and said, “You must be a lawyer.” 
 
“I am,” replied the man. “How did you know?” 
 
“Well,” answered the balloonist, “everything you told me is technically correct. But I have no idea what to do with your information, and I’m still lost. Frankly, you’ve not been much help to me.” 
 
The man smiled and responded, “You must be a businesswoman.” 
 
“I am,” replied the balloonist. “How did you know?” 
 
“Well,” said the man, “you don’t know where you are or where you are going. You’ve risen to where you are due to a large quantity of hot air. You made a promise you have no idea how to keep, and you expect me to solve your problem. You’re in exactly the same position you were in before we met, but somehow, now it’s my fault.”

Here is a very interesting article by Drake Bennett at the Boston Globe, that has lots of ramifications for lawyers, marketers and others, on “cognitive fluency”: a measure of how easy it is to think about something.  New research confirms that people prefer things that are easy to think about to those that are hard.   For example:

When presenting people with a factual statement, manipulations that make the statement easier to mentally process – even totally nonsubstantive changes like writing it in a cleaner font or making it rhyme or simply repeating it – can alter people’s judgment of the truth of the statement.  Those same manipulations can influence the evaluation of the intelligence of the statement’s author and their confidence in their own judgments and abilities.

People assign specific characteristics to things that feel familiar. Like beauty. Psychologists have identified what they call the “beauty-in-averageness” effect – when asked to identify the most attractive example of something, people tend to choose the most prototypical option. For example, when asked to identify the most appealing of a group of human faces, people choose the one that is a composite of all the others.

When people read something in a difficult-to-read font, they unwittingly transfer that sense of difficulty onto the topic they’re reading about. Psychologists have found that when people read about an exercise regimen or a recipe in a less legible font, they tend to rate the exercise regimen more difficult and the recipe more complicated than if they read about them in a clearer font.  And when a personal questionnaire is presented in a less legible font, people tend to answer it less honestly than if it is written in a more legible one.

Auditory cues can also shape people’s perception of truth. In a study in which a psychologist presented subjects with a series of unfamiliar aphorisms either in rhyming or nonrhyming form: “Woes unite foes,” for example, versus “Woes unite enemies”, people tended to see the rhyming ones as more accurate than the nonrhyming ones, despite the fact that, substantively, the two were identical. Phrases that are easier on the ear aren’t just catchy and easy to remember, they also feel inherently truer.

Keep that in mind next time you are planning a closing argument!

According to a new survey by health insurance company HealthPartners, health care costs are the biggest obstacle to business expansion for Minnesota businesses.

Almost two-thirds of companies said health costs jumped 10 percent or more in the past two years, with a quarter reporting costs increasing by more than 20 percent

Many employers blame employee lifestyles for the cost increases.  Seventy-one percent said their workers had poor health habits — not exercising enough, not eating enough fruits and vegetables, or smoking.

According to the survey, employers are resorting to a variety of tactics to lighten their health costs. About 60 percent are increasing employees’ share of costs through higher premiums, co-pays or deductibles.