Labor Law Journal » Labor and Employment Law

Feeds

1683 items (1683 unread) in 5 feeds

• Labor Law Blog (82 unread)
• Federal Employment Law (705 unread)
• Labor Prof (749 unread)
• Labor and Employment Law (19 unread)
• Labor Center (128 unread)

Labor and Employment Law (19 unread)

• 

  Three Year Run Ends for Labor and Employment Law Blog

  Posted: June 26th, 2009, 6:03am EDT by kittredge

  Exactly three years ago today we published our first post on laborandemploymentlawblog.com, welcoming everyone to a new legal blog. Our hope was that people would visit us time and time again, and benefit from the posts and articles we presented. As we stated then, the purpose of this blog was to provide easy-to-understand, accurate, and informative articles that involved labor and employment laws - articles that could be used to help organizations answer questions, craft employee policies and programs, and create positive and "best practices" working environments. Since that time, we have published close to 150 articles.

  Our readers have included both employers and employees, private and public entities, and professionals from both large and small businesses and organizations. Since the first of this year, our readership has averaged approximately 10,000 page views per month - and for this we are very thankful. We also appreciate the many approving comments and the many email inquiries we have received over the past three years. Currently, this blog is rated in the top 5% of all legal blogs on the Internet and is considered one of the top employment blogs by a number of search engines.

  However, today we are announcing that this will be the last published post for laborandemploymentlawblog.com.

  To the many organization who we have reciprocal links with, we thank you for your partnership and hope we have brought readers to your websites and blogs.

  It has been a great run. Thank you to all from laborandemploymentlawblog.com.

  George Kittredge

• 

  Issues Employers Should Consider When Conducting a Workplace Investigation

  Posted: June 1st, 2009, 7:07am EDT by kittredge

  Once the need for a workplace investigation has been identified and the investigator has been selected, the next step the employer should take is to prepare an Investigation Plan. When developing such a plan, here are a few issues that employers should be aware of and consider including in their plan.

  1. When interviewing the accused, give the accused an opportunity for rebuttal of the allegations presented. The investigator should also ask the accused for any reasons they believe the complaining party would have to lie. Advise him or her of the possibility of discipline, but also give assurance that no conclusions will be reached until the investigation has been completed.
  2. If the accused is represented by a union, be sure to follow the union contract and any special rules that may apply.
  3. When interviewing the witnesses, give some thought as to the location of the interviews and the timing. Review witness personnel files and other relevant documentation (i.e. emails, production records, reports, timesheets, expens reimbursement records, telephone records, etc.), and beware of possible underlying motives and biases.
  4. Establish a secure system of organizing and maintaining files and records.
  5. When determining appropriate remedial action, ask yourself these questions. Do you have the whole story? Do the facts stand up? Was the investigation thorough? Was there a violation of the employer's policy? Was the conduct criminal? Does the punishment fit the crime?
  6. When the investigation is completed, communicate the results to the appropriate persons. This should include follow-up with the victim, reporting any criminal conduct to the authorities, and following-up with witnesses, if appropriate.

  This blog has written some other posts regarding workplace investigations that you may wish to read. Here are the titles and links.

  Workplace Investigations - Who Should Conduct The Investigation?

  Factors Used To Evaluate The Competency And Effectiveness Of A Workplace Investigation

  Conducting A Proper Workplace Investigation - 13 Factors To Consider

• 

  Are There Any Employment Situations That Are Exempt From the ADEA?

  Posted: May 22nd, 2009, 6:32am EDT by kittredge

  Yes, there are certain employment situations that are exempt from the Age Discrimination in Employment Act (ADEA). Here are six such situations.

  1. Whe age is a bona fide job qualification reasonably necessary to the normal operation of a particular business (i.e. modeling clothes for teenagers).
  2. When the differentiation is based on reasonable factors other than age, such as the use of stringent physical requirements necessitated by the nature of the work, ADEA prohibitions do not apply.
  3. When differentiations are based on the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, the actions are exempt from the ADEA.
  4. Another exception to the prohibition on mandatory retirement at any age covers state and local governments with mandatory retirement ages for firefighters and law enforcement officers.
  5. When an individual has, for a two-year period prior to retirement, been employed in a bonafide executive or high policy-making position, and is entitled to an immediate, nonforfeitable, annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan which equals at least $44,000, then compulsory retirement at 65 is not prohibited.
  6. When there is a bona fide apprenticeship program, which has been traditionally limited to training younger persons for skilled employment, the ADEA prohibitions do not apply.

  As in all applicable cases, the employer asserting any of these defenses has the burden of showing that the age limit is reasonably necessary.

• 

  Harassment Allegation Confidentiality - Some Considerations for Employers

  Posted: May 6th, 2009, 11:33am EDT by kittredge

  An employer should make clear to all employees that it will protect the confidentiality of harassment allegations to the best of its ability and to the extent possible.

  An employer cannot guarantee complete confidentiality, since it cannot conduct an effective harassment investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.

  A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about the alleged harassment, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint or not, the employer must discharge its duty to prevent and correct harassment.

  One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line that employees can use to discuss questions or concerns about harassment on an anonymous basis.

• 

  Guidelines to Follow When Determining Family Medical Leave Eligibility for Your Employees

  Posted: April 27th, 2009, 7:40am EDT by kittredge

  Are all employees eligible for family medical leave benefits? If you, as an employer, are unclear regarding eligibility standards, the following guidelines will be helpful.

  1. The Family Medical Leave Act (FMLA) requires that an employee work for a covered employer and be employed by that employer for at least 12 months.
  2. The employee must have worked at least 1,250 hours in the 12-month period immediately preceding any taking of leave.
  3. The employee must be engaged at a worksite where 50 or more employees are employed by that employer within 75 miles of that worksite.

  The law is clear that the 12 months needed for coverage need not be consecutive. In order to establish whether the 1,250 hours have been worked, the principles of the Fair Labor Standards Act (FLSA) are used. The employer has the burden of proving that the worker has not worked the requisite hours. However, in the case of full-time teachers, regardless of the teaching level, they are deemed to have met the 1,250-hour test.

  The critical date for the application of these tests is as of the date of commencement of leave. An employer wo receives a "need for FMLA leave" request must act within two business days or the employee will be deemed eligible. Once eligible, the employee's eligibility is not affected by any subsequent change in the number of employees employed.

  Finally, the 75-mile rule is measured by surface miles and the shortest route using transportation over public streets, highways, waterways, and the like.

  In a future post, we'll discuss how you can determine how much leave an employee is entitled to.

• 

  If You Are Looking for an Outstanding HR Guidebook to Help Keep Your Business in Legal Compliance, This is it!

  Posted: April 22nd, 2009, 7:56am EDT by kittredge

   Special $10.00 discount offer to employers and HR professionals.

  If you do not have an easy-to-understand reference that explains all of the significant federal labor and employment laws and offers guidance on how to structure company policies and programs that comply with these laws, you definitely need to own this guide book.

  What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws, a 7th edition, has helped over 100,000 HR professionals - and it can be of terrific help to you.

  Normally priced at $59.95, for a limited time only, this guide is being offered at a special price of $49.95!

  How can it help you? Here are just some of the ways.

  • If you work with independent contractors, it will provide you with guidelines on how to ensure they are not considered employees by the IRS.
  • It discusses wage compliant issues including minimum wage and calculating overtime, and understanding exemption rules.
  • It explains the anti-discrimination laws and EEOC enforcement procedures.
  • It will help you determine how much medical leave an employee may be entitled to, provides guidelines for FMLA recordkeeping, and explains what a "serious health condition" is.
  • It offers guidance on how to respond to a harassment complaint, how to establish an anti-harassment policy, and how to properly conduct a workplace investigation, should one be necessary.
  • It explains how to respond to and accommodate employees with disabilities.
  • It offers practical advice on how to avoid age discrimination issues.
  • It explains what OSHA is and does.
  • It offers procedures and guidelines on maintaining fair labor practices, and how to respond to union issues and organizing efforts.
  • It provides an excellent overview of employee health and insurance laws including COBRA.
  • It offers advice regarding testing or not testing for drugs and alcohol in the workplace and guidance on how to set up an alcohol abuse prevention program.
  • It provide outlines and checklists on employee hiring procedures, applications, performance reviews, termination procedures, and personnel practices that should be avoided.
  • And much, much more!

  Throughout the 18 chapters and 301 pages, you will find numerous question and answer sections that address issues you face every day. For example, there are over 40 FAQs on the FMLA. And what a terrific book to use if you want to train any of your supervisors on how to avoid adverse employee issues and how to respond should one occur.

  Only $49.95. This book will pay for itself on day one - the first time you use it.

  To take a close-up look "inside the book" and to order your copy, please click here. To receive the special discount price, simply enter discount code 103FEL in the code box on the order form.

  This is indeed a special offer, and one you will be happy you took advantage of.

  And, for those of you who have a copy of this guidebook, please leave a comment below and tell everyone what you think of it or how you are using it. Many thanks.

• 

  Some Important Guidelines Regarding National Origin Discrimination

  Posted: April 16th, 2009, 6:53am EDT by kittredge

  The Equal Employment Opportunity Commission (EEOC) broadly defines national origin discrimination as including, but not limited to, the denial of equal employment opportunity because of an individual's place of origin, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.

  The Commission will examine, with particular concern, denied opportunity for reasons that are grounded in national origin considerations such as:

  • marriage to, or association with, persons of a national origin group;
  • membership in or association with an organization identified with, or seeking to promote the interests of national origin groups;
  • attendance or participation in schools, churches, temples, or mosques generally used by persons of a national origin group; or
  • because an individual's name or spouse's name is associated with a nation origin group.

  The "speak English only" rule: The Commission will presume that a rule requiring employees to speak only English at all times in the workplace may violate Title VII as a burdensome term and condition of employment. Requiring employees to speak only in English at certain times would not be discriminatory if the employer shows that the rule is justified by business necessity.

  Accent: The Commission has determined that an employer must show a legitimate non-discriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. Requirements that employeees or applicants be fluent in English may also violate Title VII.

  Harassment: The Commission has consistently held that harassment on the basis of national origin is a violation of Title VII. It holds that an employer has an affirmative duty to maintain a working environment free of harassment on the basis of national origin.

  For more in-depth information on this subject, we suggest you visit the EEOC website regarding Title VII National Origin Discrimination. To do so, please click here.

• 

  The Six Requirements of the Belo Plan - Something Employers Should Be Aware Of.

  Posted: April 1st, 2009, 11:02am EDT by kittredge

  The Fair Labor Standards Act (FLSA) does permit a wage plan that provides for a constant wage, even though overtime is worked. It is know as the "Belo Plan," named after the company that successfully argued its merits to the U.S. Supreme Court.

  The Belo Plan is designed for salaried employees who work irregular hours, but there are a number of restrictions. Under this Plan, the employer and the employee agree on an hourly rate of pay which is substantially less than the employee's average hourly earnings in an ordinary week. The employee is promised this hourly rate for the first 40 yours each week, not less than time and one-half this rate for overtime hours, with a guarantee of a certain weekly salary regardless of the number of hours the employee works.

  The Belo Plan is appropriate when the employee's job demands irregular hours of work. However, the following six requirements must be adhered to:

  1. There must be a written agreement between the employer and the employee.
  2. The employee's regular hourly rate must be specified.
  3. The employer must guarantee time and one-half the regular rate for hours worked over 40.
  4. The employer must guarantee a weekly salary, regardless of the number of hours actually worked.
  5. The guaranteed weekly salary may not cover more than 60 hours per week.
  6. When the employee's earnings at the regular rate for 40 hours and time and on-half for additional hours exceed the amount of the guarantee, the employee must be paid the excess over the guarantee.

  For more information about Belo Plans, and a detailed explanation of compensation considerations, you might like to read an article written by Robert Ditmer.

• 

  Employers' Obligations and the Six Basic Objectives of Workers' Compensation

  Posted: March 9th, 2009, 12:15pm EDT by kittredge

  The basic tenet of workers' compensation laws is that employers are to provide compensation in the form of wage replacement and the cost of all reasonable and necessary hospital, surgical, and medical expenses, for all accidental injuries or illnesses and death arising out of, an in the course of, employment. In return, employees give up their right to sue their employer for damages resulting from injuries which they incur while working.

  Each of the 50 states has its own worker's compensation law. In addition, there are federal laws, including the District of Columbia Workers' Compensation Act, the Federal Employee's Compensation Act, and the Longshoremen's and Harbor Workers' Compensation Act.

  Employers, in understanding what their workers' compensation obligations are, should be aware of the following six basic objectives that underly workers' compensation laws:

  1. Provide sure, prompt, and reasonable income and medical benefits to work accident victims, or income benefits to their dependents, regardless of fault.
  2. Provide a single remedy and reduce court delays, costs, and workloads arising out of personal-injury litigation.
  3. Relieve public and private charities of financial drains incident to uncompensated industrial accidents.
  4. Eliminate payment of fees to lawyers and witnesses as well as time-consuming trials and appeals.
  5. Encourage maximum employer interest in safety and rehabilitation through an appropriate experience-rating mechanism.
  6. Promote the frank and open study of causes of accidents (rather than concealment of fault), thereby reducing preventable accidents and human suffering.

  For some ideas on how employers can control workers' compensation costs, simply click on the following link.

  Workers' Compensation - 10 Suggestions For Controlling Cost

• 

  What Employers Should Know About The Fair Credit Reporting Act

  Posted: February 19th, 2009, 6:33am EST by kittredge

  The Fair Credit Reporting Act (FCRA) provides employees certain rights regarding credit checks and general investigative background checks obtained from third parties. The FCRA also governs the disclosure of "consumer reports," which includes information provided by consumer reporting agencies that address credit, character, general reputation, personal characteristics or mode of living. The Federal Trade Commission has an excellent article that explains what specifically consumer reports are and what employers should know about them. To view the article, click here.

  Although employers often fail to recognize that the FCRA applies in the employment context, criminal background investigation reports and credit histories generally fall within the FCRA's scope.

  The FCRA requires employers to provide employees certain notices and disclosures before requesting a report, before taking any adverse action based on the report, and after taking adverse action based on the report. There are, however, limited exceptions from these notice and disclosure requirements where the report concerns suspected employee misconduct, or compliance with federal, state, or local laws or regulations or preexisting written employer policies.

  Yale University has a webpage that discusses the specific rights outlined in the Fair Credit Reporting Act. Although it has been published for the employee, it is very informative from the employers' perspective as well, and worth a read. To view the write-up, clear here.

  If the report falls within one of these exceptions, the statute requires only limited employee notice, but still restricts access to the report to individuals or organizations prescribed by statute. 

• 

  Reasonable Accommodation And The Issue of Undue Hardship

  Posted: January 9th, 2009, 7:46am EST by kittredge

  An employer is not required to make an accommodation if it imposes an undue hardship on the employer. The term undue hardship is defined as an action requiring significant difficulty or expense - that is, an action that is unduly costly, extensive, substantial, or disruptive, or that will fundamentally alter the nature of the program.

  In determining whether a particular acommodation would impose an undue hardship on the operation of the entity, a number of factors may need to be considered:

  • the nature and cost of the accommodation need under the Americans with Disabilities Act (ADA),
  • the overall financial resources of the facility involved in the provision of the reasonble accommodation including the number of persons employed, the effect on expenses and resources, and the impact of the accommodation,
  • the overall financial resources of the employer including the overall size of the entity with respect to the number of its employees, and
  • the type of operation of the covered entity, including the composition, structure, and functions of the work force.

  What is apparent is that Congress intended that the weight given to each factor in making an undue hardship determination will vary depending on the facts of a particular situation and on both the nature and cost of the accommodation in relation to the employer's resources and operations.

  If cost is an issue, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. In fact, the EEOC guidance on this subject suggests that to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with the disability if he or she will pay the difference.

  An employer cannot claim undue hardship based on employees' or customers' fears or prejudices, or because providing a reasonable accommodation might have a negative impact on employee morale. Employers, however, may claim undue hardship where a reasonable accommodation would be unduly disruptive to other employees' ability to work.

  Here are some other previously written posts regarding this subject that you may wish to read.

  Frequently Asked Questions About Reasonable Accommodation

  Five Questions Regarding Reasonable Accommodation Employers Should Know The Answers To

• 

  Welcome To Labor And Employment Law Blog

  Posted: January 2nd, 2009, 7:33am EST by kittredge

  Welcome to laborandemploymentlawblog.com. The purpose of this blog is to provide easy-to-understand, accurate and informative articles on labor and employment issues that involve federal labor and employment laws. This blog has been designed to be a resource of information for employers, human resource professionals, and labor relation's officers to better understand their legal requirements and obligations as governed by the federal statutes.

  Since the blog's inception in June 2006, we have published well over 100 articles. New articles or posts are added each week. Topics involve all aspects of employee relations and include hiring and termination procedures, explanations as to what specific laws mean, workplace best practices, and how to maintain positive working environments. You will find a listing of all categories in the left sidebar.

  Much of the information comes from a terrific 300-page guidebook written for anyone who deals with employee issues and labor law compliance. It's titled What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws, and it worth taking a look at. If you don't currently have an up-to-date guidebook on employment law compliance, this book is worth your purchase.

  We hope that you will consider subscribing to this blog either by email or RSS feed (see upper left sidebar). By doing so, you will then begin receiving automatic alerts whenever new articles/posts are published.

  We invite your comments and feedback. Thank you for visiting our blog.

• 

  Workplace Investigations - Who Should Conduct The Investigation?

  Posted: December 18th, 2008, 6:51am EST by kittredge

  In determining who should conduct a workplace investigation, the nature of the conduct alleged, the persons accused, and persons available with the necessary level of investigation training and experience must be considered. The investigator must be fair and impartial with respect to the issues and the parties. Common choices in the selection of an investigator include human resources personnel, attorneys, outside consultants, and law enforcement personnel. Here are some advantages and disadvantages of each choice.

  Human Resources: HR personnel will likely be familiar with the employees involved and have extensive knowledge of the employer's policies, practices and culture. However the openness of communication could be impeded and cause a fear of retaliation.

  Attorneys: Attorneys will likely be aware of legal boundaries, but may or may not be a good investigator or interviewer. They also may be unfamiliar with the employer's policies, practices and culture. An attorney may be more useful as an overseer of the entire investigative process.

  Outside Consultant: An outside consultant may appear more objective and neutral than insiders, particularly if upper management is accused. There is also less risk of a confidentiality breach. However, as with attorneys, an outside consultant may not be familiar with the employer's policies, practices, and culture.

  Law Enforcement Personnel: A law enforcement personnel must provide Miranda warnings and other constitutional protections to the accused. Also, the employer looses a great deal of investigative control when using law enforcement personnel. Lack of familiarity or interest in the organization's policies, practices, and culture could be considered a negative. Plus, due to a reasonable doubt  standard of proof, there may be a need to impose higher investigative standards than necessary.

  Whoever is selected to investigate, it should be someone who:

  • understands the purpose of the investigation,
  • appreciates the legal and practical issues,
  • knows the employer's practices, policies, and culture,
  • has good interviewing skills,
  • is credible, respected and impartial,
  • would be effective as a witness,
  • is able to maintain confidentiality,
  • pays attention to detail, resolves inconsistencies, addresses all open issues and prepares good documentation, and
  • can weigh competing and conflicting information, make a recommendation to the decision make and support it.

  And finally, a good investigator is someone who can execute the plan but is flexible enough to adapt to the twists and turns that arise during workplace investigations.

• 

  Five Questions Employers Commonly Ask Regarding FMLA

  Posted: December 4th, 2008, 10:59am EST by kittredge

  The Family Medical Leave Act is considered by a great many employers and HR professionals as one of the most complicated and confusing employment laws they have to deal with. Here are five questions commonly asked by employers regarding the interpretation of this important Act.

  Q: What happens to employees' FMLA eligibility if the number of employees drops below 50?

  A: Once an employee is determined eligible in response to notice of the need for leave, his or her eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employer's worksite. Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50.

  Q: Is an employee entitled to benefits while using FMLA leave?

  A: During any FMLA leave, an employer must maintain the employee's coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. Therefore, any share of group health premiums which had been paid by the employee prior to FMLA must continue to be paid by the employee during the FMLS leave period.

  Q: Can an employer recover its share of health plan premiums paid during leave if the employee fails to return to work after taking FMLA leave?

  A: In most circumstances, an employer may recover its share of health plan premiums during a period of unpaid FMLS leave from an employee if the employee fails to return to work after the employee's FMLA leave entitlement has been exhausted or expires.

  Q: Are there any limitations on an employer's obligation to reinstate an employee who has taken FMLA leave?

  A: An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

  Q: Does an employer have continuing FMLA leave obligations should the employee be laid off during the leave period?

  A: If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits, and restore the employee, cease at the time the employee is laid off.

  For more information regarding FMLA leave, you may want to reference What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws. This guidebook devotes a complete chapter to the Family Medical Leave Act and includes over 40 frequently asked questions that relate to the FMLA.

• 

  ADA Amendments Act of 2008 Expands ADA Coverage

  Posted: November 19th, 2008, 6:36am EST by kittredge

  [The following post are excerpts from an article written and published by the law firm of Bond, Schoeneck King, PLLC. To read the complete article, click here.]

  On September 25, 2008, President Bush signed new legislation amending the landmark Americans with Disabilities Act (ADA) to take effect on January 1, 2009. These are some of the highlights.

  The new law, know as the ADA Amendments Act of 2008 (ADAAA) reverses several Supreme Court rulings which had narrowed the ADA's scope of protection. While the new legislation retains the basic definition of disability provided by the ADA, it supplements that definition with new language intended to broaden significantly the meaning of disability under federal law.

  Disability is defined under the ADA as:

  1. a physical or mental impairment that substantially limits one or more major life activities,
  2. a record of such an impairment, or
  3. being regarded as having such an impairment.

  The Supreme Court had narrowly interpreted the meaning of substantially limits under the ADA's definition, ruling that the impairment must prevent or severly restrict the employee in the performance of a major life activity. The ADAAA, however, relaxes this strict standard, requiring that substantially limits be more broadly interpreted consistent with the purposes of the new legislation. In amending the ADA, Congress expressly stated its intent to repudiate the narrow holdings of the Supreme Court and the lower federal courts on this issue, and empowered the U.S. Equal Employment Opportunity Commission (EEOC) to give meaning to the new, broader interpretation.

  The ADAAA broadens the definition of major life activity, and expressly provides the following examples: seeing, hearing, eating , sleeping, breathing, learning, reading, concentrating, thinking, communicating, working, caring for oneself, and performing manual tasks.

  The ADAAA also broadens the definition of disability by specifying that an impairment that is episodic or in remission is a disability under the ADA, if it would substantially limit a major life activity when active.

  The ADAAA further stipulates that employees do not have to prove that an impairment actually limits or is perceived to limit a major life activity. Instead, employees can satisfy the ADA's regarded as by merely establishing they were subjected to a prohibited action based on an actual or perceived impairment.

  To learn how the new law affects New York Employers, please refer the complete article.

• 

  FLSA Guidelines - Defining The Workweek and Minimum Wage Compliance

  Posted: November 17th, 2008, 10:49am EST by kittredge

  Here are some Fair Labor Standards Act (FLSA) guidelines regarding what constitutes a workweek and minimum wage compliance that all employers should be aware of.

  The workweek (i.e. seven consecutive, regular, recurring, 24-hour periods, totaling 168 hours) is the unit of time used for determining minimum wage compliance. The computation and recording of hours worked should be done on a workweek basis, and the employee must be paid, free and clear, compensation equal to at least the minimum wage for each hour worked in the workweek.

  A workweek may begin on any day of the week and any hour of the day established by the employer. As long as the average hourly earnings for non-overtime hours in each workweek equal the minimum wage, the requirement is considered satisfied for that week. Average hourly earnings above the minimum in one workweek may not be used to offset earnings below the minimum wage in another workweek.

  An employer can change the payday of its employees so long as the change is intended to be permanent, is done for legitimate business purposes, does not evade minimum wage and overtime requirements, and does not cause an unreasonable delay in payment of wages.

  Specific to minimum wage compliance, here are four typical wage computations in which the minimum wage payment is the issue:

  1. In the case of an employee hired on an hourly rate basis, it is required that the rate at least equal the statutory minimum.
  2. In the case of a commission employee where commissions are the sole basis of compensation, the individual's earnings must be at least equal to the minimum wage rate for each of the hours worked, exclusive of overtime.
  3. In the case of an employee who is paid an hourly rate for a portion of the workweek and a commission for the balance, earnings at the hourly rate which exceed the minimum may not be applied to make up differences in the commission earnings during the other part of the week.
  4. In the case of a piece-rate worker, earnings must equal at least the legal hourly minimum over the course of the workweek.

  For more information about the employment workweek, minimum wage compliance, and exempt/non-exempt employees, we suggest you check out the Department of Labor's FLSA webpage.

• 

  Seven FMLA Recordkeeping Requirements Employers Should Be Aware Of

  Posted: November 12th, 2008, 11:51am EST by kittredge

  The Family Medical Leave Act (FMLA) provides that employers shall preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA) and FMLA regulations. The FMLA also authorizes the Department of Labor (DOL) to require any employer to submit books or records not more than once during any 12-month period unless the Department has reasonable cause to believe a violation exists or a complaint is currently being investigated.

  No particular order or form of records is required. However, employers must keep the records specified by these regulations for no less than three years and make them available for inspection by representatives of the DOL upon request.

  In particular, these records must disclose the following:

  1. Basic payroll and identifying employee data, including name, address, occupation, rate or basis of pay, terms of compensation, daily or weekly hours worked per pay period, additions to or deductions from wages, and total compensation paid.
  2. Dates FMLA leave is taken by FMLA-eligible employees.
  3. If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
  4. Copies of employee notices of leave furnished to the employer under FMLA if in writing, and copies of all general and specific written notices given to employees as required under the FMLA.
  5. Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
  6. Prepayments of employee benefits.
  7. Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

  In addition, records and documents relating to medical certifications, recertifications, or medical histories of employees or employees' family members, created for purposes of the FMLA, shall be maintained as confidential medical records in separate files from the usual personnel files, and if the Americans with Disabilities Act (ADA) is also applicable, such records shall be maintained in conformance with ADA and the Health Insurance Portability and Accountability Act (HIPAA) requirements.

• 

  Are There Different Types Of Sexual Harassment?

  Posted: November 5th, 2008, 12:01pm EST by kittredge

  div xmlns=http://www.w3.org/1999/xhtmlpSexual harassment claims typically fall into one of two categories: quot;quid pro quoquot; or quot;hostile environment.quot; The difference can be important in terms of employer liability./p pstrongWhat is quot;quid pro quoquot; harassment?/strong/p pa href=http://www.stopvaw.org/Quid_Pro_Quo_Sexual_Harassment.htmlQuid pro quo/a harassment occurs when submission to, or rejection of, conduct constituting sexual harassment is used as the basis for employment decisions affecting an employee. By its very nature, then, this is harassment which is engaged in by a supervisor, manager, or someone else who is in a position to grant or influence employment decisions./p pAs an example, a demand for sexual favors in exchange for a promotion, a better assignment, or a raise constitutes quid pro quo./p pstrongWhat is quot;hostile environmentquot; harassment?/strong/p pA a href=http://en.wikipedia.org/wiki/Hostile_environment_sexual_harassmenthostile environment/a is created when sexual harassment which is occurring in the workplace has the purpose, or effect, of interfering with an employee's work performance or creates an intimidating, hostile, or offensive working environment. This means that if the harasser intends to create a hostile environment and is successful, the conduct violates a href=http://www.sexualharassment.ucla.edu/what_is_defs_titlevii.htmlTitle VII/a. But it also means that conduct which in fact interferes with an employee's work performance, or creates an intimidating hostile or offensive work environment, even if the alleged harasser did not mean to create such an environment, still violates Title VII./p pFor example, a workplace in which sexual jokes or innuendo are permitted to flourish can create a hostile work environment./p pIt's important to also remember that a hostile environment can be created by the acts of supervisors, co-workers, or even third parties (for example, vendors or customers) with whom the employee must work./p pFor additional information about sexual harassment in the workplace, you might like to read:/p ol type=1 style=MARGIN-TOP: 0inol type=1 style=MARGIN-TOP: 0inli class=MsoNormal style=MARGIN: 0in 0in 0pt; mso-list: l0 level1 lfo1; tab-stops: list .5ina href=http://www.laborandemploymentlawblog.com/2007/03/sexual_harassme_1.htmlspan style=color: #800080;Sexual Harassment - Guidelines For Creating An Effective Complaint Procedure/span/a/li li class=MsoNormal style=MARGIN: 0in 0in 0pt; mso-list: l0 level1 lfo1; tab-stops: list .5ina href=http://www.laborandemploymentlawblog.com/2007/09/responding-to-a.htmlspan face=Times New RomanResponding To A Sexual Harassment Complaint - Guidelines For Employers/span/a/li li class=MsoNormal style=MARGIN: 0in 0in 0pt; mso-list: l0 level1 lfo1; tab-stops: list .5ina href=http://www.laborandemploymentlawblog.com/2008/03/workplace-haras.htmlspan face=Times New RomanWorkplace Harassment - Preventative And Corrective Actions Employers Should Consider/span/a /li/ol/ol pThese and additional posts can be found by clicking on the EEO-Sexual Harassment category in the left side bar.nbsp; /p pstrong[The above article, with the exception of the post references, was taken with permission from emWhat Every Supervisor Should Know About Sexual Harassment/em, a booklet prepared by the Labor and Employment Law Department of a href=http://www.bsk.com/Bond, Schoeneck amp; King, PLLC/a.]/strong/p/div
• 

  Factors Used To Evaluate The Competency And Effectiveness Of A Workplace Investigation

  Posted: October 28th, 2008, 11:25am EDT by kittredge

  Juries and others, with the benefit of hindsight, look at several factors in evaluating the adequacy of a workplace investigation. Often times, good plaintiff's lawyers will put the employer's investigation on trial in order to divert attention from their client's conduct. The report card of a good workplace investigation contains passing grades in the following areas:

  • evidence of good planning,
  • devotion of sufficient skills and resources,
  • promptness (but with no rush to judgement),
  • thoroughness (all material witnesses were interviewed and documents received),
  • fairness and impartiality,
  • accuracy,
  • minimal intrusion,
  • maximum confidentiality, and
  • adequate documentation.

  Perhaps the most frequent mistake committed by employers faced with a need to conduct a workplace investigation is procrastination. Reasons for such delays include illness or absence of those involved, vacations, holidays, pressing work matters or the hope that if the information or allegations are ignored, they will somehow go away. Employers are urged not to fall victim to any such beliefs.

  Conducting a prompt workplace investigation has a number of benefits to the employer. First, it will show that you took the matter seriously. Second, the trail will be fresh and memories will not have faded. Finally, striking while the iron is hot will not give the accused a chance to cover his or her tracks. Bottom line, you will have a better chance of getting straight answers and admissions.

  [Note: This article was taken from What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws.]