#1       The pace of wage-hour claims did not slow down

We saw continued aggressive enforcement of minimum wage and overtime laws by the Nevada Labor Commission and the US DOL during 2013.  The following issues were the most troublesome for employers:

• Which Nevada Minimum Wage applies?  See this for help.
• When is daily overtime due under Nevada law?  See this for help.
• Can an employer force a tip sharing arrangement on employees?  The answer in Nevada is generally yes.  Despite the 9^th Circuit’s clear holding that the federal tip sharing rules do not apply to non-tip credit states like Nevada, you can expect the DOL to continue to try and meddle in tip-sharing programs.  The most fertile area for litigation in Nevada involves who can particpage in a tip pool.  For now Steve Wynn has cleared the way for certain employees who look like supervisors to participate in a tip pool.

The US DOL has set out its priorities in its 2014 budget justification document:

 

At the FY 2014 Request Level, WHD requests $243,254,000 and 1,872 FTE. These resources will support a continued shift to greater directed and complaint enforcement activity in priority industries and will offer an improved customer service approach to complaint handling in lower priority industries. WHD will continue to increase its number of compliance actions, but anticipates that continued gains in compliance actions concluded will be incremental as WHD maintains its emphasis on conducting quality case work and concentrates on no-violation cases through effective compliance screening and investigation targeting. At the request level, WHD is increasing its percentage of directed investigations. WHD data show a higher number of employees affected and greater back wages on average for directed investigations.

…

 The agency will continue to use its directed investigations to increase WHD presence in high risk industries, i.e., those industries with high minimum wage and overtime violations and among vulnerable worker populations where complaints are not common.

For more good information follow the Fisher & Phillips Wage and Hour Blog.

#2       The scrutiny of employers who use independent contractors did not stop

While state coffers continue to hurt, various agencies continue to aggressively audit employers who use independent contractors.  See this for assistance.

The US DOL also aggressively investigates misclassification issues.  In fact, in its budget justification document, the DOL requested $3.8 million in its FY 2014 budget to, among other things, hire 35 FTEs for increased enforcement related to misclassified workers.  In an effort to help out the states and put employers under further pressure the DOL also promised to “leverage its relationships with other federal, state, and local agencies and with worker, employer, and community organizations.”

For more good information follow the Fisher & Phillips Wage and Hour Blog.

 

#3       The NLRB did not formally issue its “quickie election” rules

 After a federal court quickly struck down the NLRB’s proposed quickie election rules nothing much happened.  However the proposed rule is still on the NLRB’s official agenda.  With a full and legally appointed and confirmed NLRB you can count on this rule be officially reissued during 2014.  Here (see Step #3) is how to start getting ready.

 

#4       A number of public sector unions in Nevada did not get the memo that local government budgets are in still in horrible shape

Some local governments are seeing their way to modest COLAs and some unions are getting them in arbitration.  But as for the long term structural changes that must be made to public sector compensation many unions just don’t get it.  Look for upcoming fact-finding and interest arbitration proceedings made necessary by unions who refuse to give up the kinds of benefits which are disappearing across the state and the country:

•  Longevity
• Automatic (“springing”) raises to pay the employees’ portion of PERS increases
• Employer payment of retiree health benefits

 

#5       The EEOC did not shrivel up and blow away

The EEOC did not stray much from its previously stated enforcement priorities.  It did have a setback in court when it tried to challenge an employer’s right to use criminal conviction information in hiring.  While the EEOC’s broad attack was unsuccessful in that particular case, you must exercise care not to make hiring decisions based solely on a criminal conviction without looking at the specifics of the situation.  See this for assistance.

Resolution #1:  I Will Self Audit Our Company’s Wage-Hour Practices

According to its strategic plan, the Wage and Hour Division of the US Department of Labor will continue to aggressively pursue employers who:

• Fail to pay overtime where required
• Improperly consider employees to be exempt from overtime
• Misclassify employees as independent contractors

Being snagged on wage-hour violations hurts, not just because it ends up costing money but also because a vigilant company can discover these types of problems fairly easily. Trying to root out harassment or embezzlement can be difficult because those activities are frequently done surreptitiously.  On the other hand, HR and company management can easily find out if there are wage hour problems by looking at payroll records, employee duties and hours worked.  There is little excuse for being surprised by the findings of a DOL audit.

The idea of a self audit is to do what the DOL would do if it showed up for an audit—but do it yourself now while you have time to correct mistakes or reconsider the risky things you have been doing on purpose. Self audits can be done by your employment attorneys. They can also be done in house –we’ve taught lots of clients how.

For a refresher on the Fair Labor Standards Act, read this booklet and this booklet.  For up to date wage-hour information and developments follow the Fisher & Phillips Wage and Hour Law Blog.

Resolution #2:  I Will Review Our Company’s Social Media Policy

Of course you must first be sure that have a social media policy.   No company can afford to be without one. It does not need to be extensive but it must be carefully written because last year the NLRB issued a number of rulings that create a confusing minefield.  Here is a report issued by the NLRB last year, which summarized the cases decided by the NLRB though the first half of 2012.  Note that at the end of the report there is a social media policy that the General Counsel of the NLRB found to be completely legal!  Resist the urge to simply adopt it verbatim—you should still tailor it to your operation and run it past your labor lawyer.

Resolution #3:  I Will Take Steps to Union Proof Our Company

Unless you have been living under a rock you know that the NLRB, packed with union leaning appointees, last year tried to:

•  Force every employer to post a notice informing its employees of the their right to join a union.
• Change the rules so that employers can be ambushed with a union election on 14 days notice.
• Require all employers to publicly thank unions for all they have done for society (OK maybe the NLRB didn’t actually try to do this but you know they really wanted to).

Meanwhile the DOL tried to amend its regulations to require  your labor attorneys to file reports telling the government how much you paid to them for helping keep you union free.

These initiatives did not come to fruition but expect them to be reintroduced this year.

To begin the union proofing process, start by learning the basics about the law of union organizing by reading this booklet on the union organizing aspects of the National Labor Relations Act. Also read this booklet on unfair labor practice liability under the National Labor Relations Act.

Then perform a union vulnerability audit on your own or with the help of your labor attorney. Start by using this tool.   Many of our clients have made changes based on the audit results and those changes have helped insulate companies from union organizing.

Resolution #4:  I Will Schedule Management Training

When times are tough training budgets are one of the first things to go.  Times are still tough but the aggressive government enforcement agenda makes training too important to continue to ignore.  What to cover?  At a minimum you must conduct a refresher on harassment and discrimination prevention.  In the early years such training lasted several hours.  It still warrants time but you can really cover the basics in less than two hours.  Use that extra time to cover union awareness.  That means you educate supervisors and managers about unions and how to spot the early warning signs of union organizing.  That training must also cover “Management 101”.  In that segment supervisors and managers will learn good communication skills and how to properly use progressive discipline.  It should be everyone’s goal after the training to make the workplace so comfortable that your employees would never even consider bringing in a union.  Bonus:  those same management techniques learned in the training will reduce employment claims and make it easier to successfully defend employment claims.  Do the training in house, use your labor attorney, or use some combination of the two.

Resolution #5:  I Will Eat Less Meat and Dairy and More Fruits and Vegetables

Oops, sorry, this one belongs on a different resolution list.  But while we’re on the topic this resolution has nothing to do with animal rights—just living longer and healthier.  Don’t believe me–check out this documentary.

The Real Resolution #5:  I Will Review the Effects of Obamacare on the Company’s Benefit Plans

You will likely need help with this one.  Here is a basic timeline for compliance with the Affordable Care Act.  We’ve walked many clients through the maze.  Using a qualified law firm is best but a consultant can also work well but you must be careful when the consultant you are relying on also sells or brokers insurance products.  The good vendors will remind you, (usually in the fine print) to check with your own benefits attorney.

I hope this list of resolutions is helpful and I would appreciate it if you could post any of your own suggestions in the comments section.

#1:      Your Lawyer Fails to Return Your Call the Same Day

Employers have to deal with issues that come up quickly and without warning:  harassment complaints, violence, EEOC charges, picketing, etc.  And many times there is simply a question that has been bothering you—how to handle an overtime issue, or a difficult employee—and you want an answer sooner rather than later. Time and again surveys have shown that clients are unhappy with lawyers who take days to return calls or who fail to ever return calls.  Be sure you select a lawyer who calls back immediately or at the latest the very next morning.

#2:      You Are Not Receiving Legal Updates on a Regular Basis

 

New laws, new regulations, precedent setting court decisions, NLRB rulings, and government agency enforcement initiatives—they’re all happening constantly.  It is very difficult for lawyers to keep up and even harder for you to keep up.  You’re running the HR function or maybe even a business unit or an entire company—you need timely news and information to keep yourself and the company out of trouble.  If your lawyer is not providing email legal alerts, newsletters plus a website/blog full of explanations and forms you are not being well served.

#3:      Your Lawyer is Not an Expert in Labor Law

 

A number of general practice or corporate lawyers who help businesses have a basic understanding of some common aspects of employment law such as the prohibitions on discrimination and harassment.  However in today’s legal environment a lawyer with that limited practice area cannot fully service an employer.  Remember that the National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA).  The NLRA applies to virtually all employers even if the company is non-union!  Now the NLRB has an entire page of its website dedicated to explaining the concept of concerted activity and touting its enforcement victories against non-union companies—check it out here.  Bottom line: if your lawyer is not well versed in traditional labor law, there is no way he or she can keep your handbook legal and advise you how to comply with the NLRA. (Bonus: lawyers with these skills can also help you keep your company union-free.)

Watch for Part 2 which includes discusses the critical aspects of experience, (or lack thereof).

 

MYTH #1        “Oh, I’ll just put her on salary then I don’t have to worry about tracking her hours or paying overtime.”

In order to be exempt from overtime an employee needs to be paid on a salary basis but that employee must also perform duties that fit into one of the white-collar exemption categories.  That means the individual must be an executive, an administrator or professional.  Learn the legal requirements here.

MYTH #2        “My pay practice is fine because my employee agreed to voluntarily work overtime hours at straight time.”

Employers must pay non-exempt employees overtime at time and one half for all hours worked over forty in a workweek.  Employees cannot waive the protection of this statute. Even if the employee never complains, when an audited by the United States Department of Labor the employer will be ordered to pay the overtime and possibly liquidated damages and civil money penalties.

MYTH #3      “If a group of my employees start complaining too much about conditions around here I can just fire them—after all they are at-will employees.”

The National Labor Relations Act protects the right of employees to engage in concerted activity.  That concerted activity includes the right to get together as a group and discuss wages, hours and working conditions and complain to the boss about them, (and even go on strike!)  The National Labor Relations Board (NLRB) enforces the National Labor Relations Act and the law even applies to non-union companies. Get familiar with the National Labor Relations Act here.

MYTH #4        “Wage rates are confidential and I can fire anyone who discloses his wage rate to a co-worker.”

See the debunking of MYTH #3 above—employees have the right to discuss among themselves their wages, hours and working conditions.

MYTH #5        “My employee handbook is fine, I got it from a trusted source and I had my regular attorney review it.”

Years ago many attorneys could competently review an employee handbook for employment law compliance.  Now we have an activist NLRB that is declaring illegal certain language contained in most employee handbooks.  Common handbook sections on at-will employment, confidentiality, arbitration, after hour access to company premises, solicitation and distribution are being attacked as being in violation of the National Labor Relations Act.   Be sure an attorney who carefully follows the NLRB and is well versed in labor law reviews your handbook.