The Spam Filter Dog Ate Your E-Mail Notice

Just as pleading that the dog ate your homework, you won’t get far with a judge by pleading that you never received an important legal notice because it must have gone to the spam folder.

In Emerald Coast Utilities v. Bear Marcus Pointe, the utility ended up having to pay BMP’s legal fees not because the weight of the merits so tipped in favor of that outcome. Nope. Rather, the utility’s law firm had a poorly designed email spam system, and they simply never saw the notice for the hearing where the lawyers could have probably made a convincing argument against those fees.

As one commentator points out, “an inability to manage an office e-mail system to properly receive notices of filing does not qualify as excusable neglect.”

While this was about lawyers and law firms, don’t think this excuses normal people like you and your company. Make sure to have email accounts that are general purpose (like “[email protected]…”) and make sure those get monitored regularly for notices from the various local, county, state and federal agencies that you are regulated by. Don’t let the homework-eating dog bite you in the … you know.

Say What?

No, you cannot force your employees to only speak in English. Sure, if they need to talk to customers, or if they need to convey important safety-related information between each other, you can absolutely require that those discussions be conducted in English. But while passing time in the break room? No, you cannot force employees to converse only in English.

no … nein … nyet … yok hayir … pa gen okenn


Those Who Can’t, Test

If your company has job postings that refer to needing to “be able to lift fifty pounds,” keep reading.

Michigan-based Gordon Foods has been cited for a second time for having illegal “must be able to lift” requirements that over-stated what kind of physical strength was needed for doing the job. And which, the EEOC and OFCCP said were thus actually proxies for simply not wanting to hire women. Here is a good summary of the ruling.

What is my take-away? That Gordon Foods probably doesn’t not want to hire women. But Gordon Foods is bad about making sure that its local hiring/recruiting managers are using the latest and greatest forms and job descriptions.

Compliance is all about effectively communicating, making sure that all of the nooks and crannies of your company know what they need to know. And providing them the tools so that they can remind themselves of what they need to know without having to magically remember it all.

And the magic number is $47,476 per year

Go figure… I post on Monday that the US-DOL hadn’t yet issued the overtime rule updates, and bam! out pops the rule on Tuesday.

The magic threshold is $47,476 per year, and that amount automatically indexes once every three years.

The Dept of Labor blithely posits that

If you need more than a simplistic meme to guide you, you might want to jump on one of the DOL’s free webinars on 5/26, 6/2 or 6/9 (or on 6/7 for non-profits), click here to register.

From Salaried, back to Hourly? New US-DOL Overtime rules

The US Dept of Labor’s long-anticipated changes to the overtime pay threshold still haven’t come out (could be anywhere from $47-50k, up from the current $23k). But, either way, you probably have a sizeable handful of currently salaried employees who will go back to be handled as hourly paid. Which can seem like a kick in the ego to many.
But, if you’re being honest with yourself and your workers, especially those currently paid closer to $23k than $47k, perhaps this seismic change will give you both a chance to assess some work/life balance issues. If that random thought that pops in to your head at 11pm really demands a reply at 11:10pm, then be prepared to pay your worker for that response. Otherwise, go ahead and still send that email (so you don’t forget), but then go to bed and rest assured that it will be addressed in the morning when the work day begins.
The Society for Human Resource Management has a great article highlighting some ways to put a positive spin on this admittedly difficult topic.

Supernatural and the NLRB

My daughter was indulging a t.v. marathon for the show “Supernatural”. One particular episode involved some teens reciting Latin incantations and accidentally inviting demons to their basement.

What does this have to do with the National Labor Relations Board (NLRB)?  Plenty.

Just because you don’t currently have a unionized workplace, nor do you ever expect to, doesn’t mean that the NLRB won’t take it upon itself to show up anyway. And the words that you incant to call their spirits upon your workplace don’t have to be in Latin.

istinc curare bonum causidicus = make sure that you have a good lawyer on your side

The NLRB is increasingly taking it upon itself to interject itself into non-unionized workplaces by cherry-picking language in employment policies that forbid or restrict employees from:


Snail Mail or Fail Mail? FMLA Notices

Those of you who handle FMLA matters know that it can be a paper-intensive undertaking. You’ve probably grown accustomed to sending Notices of Eligibility, medical certification, and Designation Notices by US postal mail. Unfortunately, not every federal district or appellate court thinks that’s good enough.

In Lupyan v. Corinthian Colleges, the appellate court chided that “in this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.”

So, how about you send it via email? Nope, not good enough either. In Gardner v. Detroit Entertainment, the district court took it on face value that if the recipient says she didn’t get the email, then unless you can prove she not only got it but opened it and read it, then that’s that.

But it’s expensive to use US Priority Mail, FedEx, UPS, or some other delivery service that gives you a tracking number and proof that the delivery was signed for, right?  Yep, good thing Corinthian College and Detroit Entertainment avoided spending $5-10. Because heaven knows defending a FMLA lawsuit in federal court costs much less than $5-10
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