National Clothesline

very management labor lawyer includes magic tricks when he or she gives seminars or dinner speeches. What I mean by magic tricks are quirks in the law that seem unbelievable, astonishing, and illogical.

For example, some companies have programs that reward perfect attendance. If an employee, however, is absent because of Family and Medical Act Leave, those absences cannot be used legally to deny a perfect attendance bonus. So, an employee with imperfect attendance can also have perfect attendance.

An employee who starts work early must be paid for that time, even if the employee does not want to be paid. The Department of Labor says you can fire the diligent employee for going to work too early, but you cannot deny him his pay.

The same is true for an employee who stays late. So, let’s fire those conscientious employees to avoid overtime liability.

Employees who have to work overtime because they are incompetent, slow, or clueless still must be paid for the overtime. Employees who can finish their work during regular hours are not entitled to extra pay like their incompetent, overtime-working counterparts are. Therefore, the government favors rewarding poor performers and firing good ones.

The words I write in this column are protected by the First Amendment of the Constitution. If I write an article about a case involving graphic sexual content, the publisher cannot be penalized in any way.

If one of your employees reads the article to a fellow employee, he might be creating liability for you under the civil rights laws for sexual harassment. The workplace does not support concepts of free speech.

Managers can be fired for discussing their salaries or the salaries of other employees, but non-supervisory employees have the right to discuss their salaries with other employees.

The National Labor Relations Board says that you cannot give an employee a raise and say: “keep it to yourself.” The NLRB says that employees have the right to cause dissension in the workplace by talking about their raises, bonuses, or other “secret” compensation arrangements.

If you agree to arbitrate disputes instead of going to court, the arbitrator’s award is virtually unchallengeable. In fact, the arbitrator is not even required in most cases to give the reasons for his award. Unless you have evidence that the arbitrator exceeded his authority under the arbitration agreement or engaged in misconduct, his decision is final and binding.

A judge’s decision, on the other hand, can be appealed on numerous grounds. In addition, you do not have to pay the judge by the hour to hear your case, read your briefs, and write a decision. Why do companies arbitrate? Good question.

If one employee refuses to work overtime, that’s insubordination. If two or more employees refuse to work overtime, that’s a strike. You can fire the insubordinate employee, but you may only be able to “replace” the “striking” workers with employees willing to work overtime.

On the other hand, employees may not engage in intermittent strikes and can be fired for doing so.

What’s an intermittent strike? Although a possible oversimplification, an intermittent strike is one designed to disrupt an employer’s operations at random times without subjecting employees to a lot of lost time. Either you are on strike or you aren’t.

And finally, not all employees engaging in gross misconduct can be fired without risk. Many years ago, I had a client who fired a female employee for hitting a female supervisor so hard that the supervisor collapsed into a heap on the ground. Obviously, the employer fired the pugilist, who was also African-American.

Easy case to defend, right? Unfortunately, several months earlier, a white male employee who had attacked his white male supervisor with a knife had not been discharged.

Consequently, it appeared that we were treating white men differently than black women, which can be race and sex discrimination under most circumstances. So, the case was hardly easy to defend.

We won, but not without a lot of other magic tricks along the way. Remember: This labor law business is tricky, and very many times not at all intuitive. Get advice when you can, and you may not need a lawyer (or a magician) to help you figure out how to defend a lawsuit.

Frank Kollman is a partner in the law firm of Kollman & Saucier, PA, in Baltimore, MD. He can be reached by phone at (410) 727-4300 or fax (410) 727-4391. His firm’s web site at www.kollmanlaw.com has articles, sample policies, news and other information on employee/employer relations.