As far as most non-governmental employers are concerned, the Republican sweep of the Nevada Legislature will likely be known for what laws won’t be passed. I think employers will not see new or stricter laws in the following areas:

• Protections for employees using medical marijuana.
• The availability of bigger dollar damages in discrimination cases under state law.
• The definition of or regulation of independent contractors.
• Changes to the state wage/hour/overtime law.

I do predict serious debate and probable action on laws dealing with:

• Whether local governments should still be obligated to engage in collective bargaining with employees.
• Even if collective bargaining is required, which subjects will not be subject to bargaining but will be left to the discretion of the local government employer.
• No matter what public employee unions can bargain over, will all automatic wage and benefit changes continue to occur even after contract expiration (the “evergreen doctrine”).
• Whether public employee contracts should permit employees to use paid time to carry out union business.
• Will public employee unions be required to annually disclose financial information. (See why this issue is important here and in the next bullet point).
• Whether taxpayer paid local government payroll systems should be used to provide unions with free payroll deduction services for union dues and political contributions. (Of course without transparency of union finances that innocent-sounding “dues” deduction could include money the unions use for political purposes.  See the preceding bullet point on the transparency issue).
• Whether and how the public employee pension statute (PERS) is changed.
• Whether union protesters should be given a pass on complying with the Nevada stalking laws. (See NRS 200.575 (g)(1).)
• Whether contractors (and ultimately the taxpayers) working on Nevada public construction projects must pay the union dictated “prevailing” wage and benefit rate.
• Whether employers should be subject to the risk of a defamation suit just because they try to tell their side of the story. (See why this issue is important here.)

The public employee collective bargaining reforms will be in play because conservatives will insist on changes in return for supporting any tax proposals.  The debate will be off to a good start especially thanks to some excellent ideas set out in Las Vegas Review Journal editorials here and here.  In addition, the assembly caucus has hired a former NPRI staffer and he will have a serious game plan.

Expect unions to mobilize quickly—especially the large international unions that represent both local government employees and private employers. The ones to watch are the SEIU, Teamsters,  Operating Engineers and of course the Firefighters.  Even if the unions feign a willingness to agree to certain “reforms” Republicans will be very cautious.  The last time there were “compromises” the very adept union lobbyists who know every nuance in NRS 288 were able to avoid giving up anything significant.

Stay tuned!

Should an employee be entitled to a job protected leave of absence under the FMLA in order to fulfill her terminally ill mother’s lifelong dream of a family trip to Las Vegas?

If you work in Chicago the answer is YES! Actually if you live in Illinois, Indiana or Wisconsin this is the now the law according to the United States Court of Appeals for the Seventh Circuit in a case decided on January 28, 2014.

The case is based on the section of the FMLA that permits an employee to take leave to care for a family member who has a serious health condition.  The law is clear that the “care” encompasses both physical and psychological care.

It is not clear that employees in Nevada would have the same freedom to take a job protected leave to fulfill an ailing relative’s lifelong dream of visiting Wrigley Field.   The normally liberal Ninth Circuit Court of Appeals has been somewhat circumspect on this issue.

The Ninth Circuit ruled against two employees who wanted job protected FMLA leave to accompany sick family members on out of town trips.

In the first case an employee took time off to pack up and move her depressed fourteen-year-old son from California to the Philippines to live with relatives.  The boy had been beaten by several acquaintances.  The mother said that the purpose of the move was to keep the boy safe from further beatings.

In the second case the employee took a cross-country trip to retrieve the family vehicle during his wife’s late-stage pregnancy difficulties.  Although his wife did not accompany him on the trip the employee called her regularly on his cell phone from the road.  The employee claimed that having a working vehicle provided psychological reassurance to his wife and his phone calls provided moral support and comfort.

In a refreshing breath of rationality the normally liberal Ninth Circuit ruled against both employees.  The Court pointed to one part of the FMLA regulations, which explain that the care can encompass providing “psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.”

In the depressed teen-age son case the Court observed that the boy was not being moved to the Philippines to receive superior or any medical or psychiatric treatment.  In fact there were no specific plans to seek medical attention for him and he did not even see a doctor for five months after arriving in the Philippines.  Oh, and there were no psychological services within a three hour drive of the rural area where he was taken to live.

In the pregnant wife case the Court held:

Instead of participating in his wife’s ongoing treatment by staying with her, he left her for almost four days. Tellis claims his trip provided psychological reassurance to his wife, but he did not travel to Atlanta to participate in his wife’s medical care. Having a working vehicle may have provided psychological reassurance; however, that was merely an indirect benefit of an otherwise unprotected activity — traveling away from the person needing care. Tellis also claims his phone calls provided moral support and comfort, but his phone calls during his trip did not constitute participation in ongoing treatment. Common sense suggests that the phone calls Tellis made do not fall within the scope of the FMLA’s “care for” requirement.

Of course the facts in the Chicago case were different.  The employee was indeed taking care of her mother at home and the mother was terminally ill and needed significant medical care.  The employee accompanied her mother on the trip and presumably provided the same daily care for her while in Vegas that she was providing at home. What would the Ninth Circuit do with those facts? My crystal ball is in the shop but it is fair bet that the result would be similar.

Bottom line: Out of town employers: keep ‘em coming—Vegas needs the business.  If you are an employer here in Las Vegas, (or an employer anywhere else who wants to protect the business from potential abuse of leave), take the following steps when an employee requests leave to care for a family member with a serious health condition:

•  Be sure that the employee has filed a timely and complete certificate of health care provider as part of the leave request
• Be sure that the certificate is completely filled out and actually says what the employee believes it says
• Don’t hesitate to use your rights under the regulations to request a second opinion or recertification in appropriate situations.

For more information on the FMLA check out this and this.

#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.

By now employers know that regular supervisory training on sexual harassment prevention is a must.  (If you need a refresher on the law, download this pamphlet.) Trainers like to trot out the familiar stories about plaintiffs’ attorneys telling employees to document harassment and make complaints.  Or we are reminded about the EEOC’s outreach activities to educate potential plaintiffs.

I had an eye opening experience last week when I accompanied my 12-year-old daughter to a class at our church for middle school students.  The class was to cover sexual abuse.   The topic was covered in a very direct yet sensitive way.  I don’t remember this being covered when I was in middle school back in the olden days but I am glad it is now.

The real surprise for me was that after the sexual abuse video and post video discussion was another video.  This one covered sexual harassment in middle school.  The narrator told us that among students sexual harassment was most prevalent in middle school.  She gave no statistics or citation to authority but I did find this study which likely confirms the assertion.

I was waiting to hear a tortured version of the employment law definition of sexual harassment.  Surprisingly, the video described the basics in easy to understand and generally accurate terms.  “No one has the right to touch you without your consent.”  “No one has the right to say offensive things to you.”  Some of the vignettes illustrated conduct that a court might not decide was based on sex.  But the examples shown were certainly offensive and inappropriate so I’m fine with students being advised to object to it—even if technically isn’t sexual harassment in the legal sense.

Students were advised to tell the harasser to stop or complain to a person in authority.  The big surprise was when the video showed the victim carefully jotting in a small notebook and the narrator instructed the viewers to keep notes or a journal of the harassment.  This is a technique suggested by the lawyers who represent harassment victims and it may make a plaintiff into a better witness before the EEOC or a judge, jury or arbitrator.

Don’t get me wrong, I am not critical of the advice to middle school students—I hope my daughter was watching and listening carefully.  But here is the news flash: based on the education our students are receiving at very early ages, employers need to remember that many future employees coming right out of school will have already attended a class on harassment—even before hearing about the company’s policy.

There are still employers of significant size that have no written policy, (or a poorly worded policy), on harassment or who have neglected supervisory training for a long time.

Bottom line: don’t be the first company to be a loser on the newest reality show:  Are Your Supervisors Smarter than a Middle School Student? 

Usually the powerful Nevada Resort Association (NRA) uses its considerable clout to protect employers from laws that further regulate them.  However, sometimes the NRA chooses to conserve its political capital for bigger issues or simply get gaming employers an exception to the applicability of a new law. That is why non-gaming employers must still be vigilant during a legislature.  In order to do that you must become active in the Chamber or your industry trade association.  During the last days of the legislature things happen very fast and behind the scenes.  Without an experienced lobbyist on the spot you are dead meat.

One point about hiring a lobbyist:  inquire about who his or her other clients are.   Unlike lawyers who can lose their licenses for violating the ethical rules against conflicts of interest, lobbyists have fewer constraints.

Employers dodged a major bullet thanks to a veto by Governor Sandoval. The legislature passed a bill changing the state discrimination statute in a way that would make it unnecessary for plaintiffs to sue under the federal law, Title VII of the Civil Rights Act of 1964.  By suing only under state law the plaintiffs’ attorneys would prevent employers from removing these types of cases to federal court.

Why do employers prefer federal court? Juries are generally larger and must reach a unanimous verdict instead of a simple majority verdict in state court.  Also the federal judges are usually more familiar with the discrimination laws and the rules of procedure are stricter in federal court.   A hidden benefit of the veto was also to save our state courts from the onslaught of an additional several hundred lawsuits each year.  Don’t rest too easy—you can expect the same bill to be introduced again in future legislatures.

There were three important employment law bills that passed and were signed by the governor.

Effective October 1, 2013 it will be unlawful to ask an employee or prospective employee to disclose the user name, password or other access information to his or her social media account.  This law should be relatively easy to comply with—as long you educate your HR staff and management team.  Also inform your security department about the prohibition —it could be counter-intuitive to some ex-law enforcement investigator types.  Get more detail on the new law here.

The use of credit reports by employers will be significantly limited effective October 1, 2013—except for gaming employers and financial institutions. To comply with this law you will have to pay close attention to your hiring procedures, forms and job descriptions.  Read more detail on the new law here.

Also note that all employers, (including gaming companies and financial institutions) will need to continue to comply with the federal Fair Credit Reporting Act (FCRA).   Remember that the FCRA imposes several requirements on employers who use credit or consumer reports. Those employer requirements include a disclosure-and-authorization requirement, a pre-adverse-action notice requirement, and a post-adverse-action notice requirement. The statute provides financial penalties for violations. These requirements don’t apply to those employers who do their own background checks directly, but they do apply when you use a third party – a consumer reporting agency – to compile the information.

Finally, the legislature looked at arbitration agreements.  Plaintiffs’ lawyers would of course love to have pre-dispute arbitration agreements declared illegal but that did not happen this year.

The new law says that any arbitration agreement entered into or renewed on or after October 1, 2013 will be void and unenforceable unless the employee has specifically authorized and agreed to arbitration. Arbitration agreements in existence before October 1 are not subject to these requirements (unless they are renewed after that date).

This will affect language that is commonly found in employment contracts, employment applications, employee handbooks, severance agreements and other documents.  For specifics on how best to comply with the new law read this.

If you would like to read the actual bills that were passed let me know.  Don’t be the first embarrassing test case under one of these new laws—if you need help getting ready to comply call your labor and employment lawyer.

The EEOC has a legal mandate to come after employers who have a “Glass Ceiling”.  That term refers to an artificial barrier to the advancement of women and minorities.

Our state has a long history of advancing women to the top positions in the gaming industry.  For example Marilyn Winn and Renee West have both run multiple strip resorts.

Our local governments have stepped up to the plate as well.  The top manager in the City of Las Vegas has long been Betsy Fretwell and Pam Webster is at the helm in Nye County.  For a number of years Virginia Valentine was the County Manager in Clark County and now she leads the powerful Nevada Resort Association.

Now we have something else to brag about:  women run both of our state’s major airports.  Rosemary Vassiliadis took over the Director’s slot at McCarran International Airport from the legendary Randy Walker last month after sixteen years as his Deputy.  Before that she held high-powered positions in both the City and the County.   Director Vassiliadis will be running one of the busiest airports in the country.  The airport saw 41 million passengers last year and has about 1,500 employees—running it is a tough assignment regardless of gender but Rosemary has already proven herself to be an excellent leader.

Krys Bart expertly ran the Reno Tahoe Airport for fourteen years until she retired at the end of June.  Another top-notch female executive, Marily Mora who starts July 1, has succeeded her.  Prior to a recent stint as Assistant Director at Oakland International Airport, Mora was Bart’s second in command for 12 years.  The Reno Tahoe Airport is the 60^th busiest commercial airport in the nation; it serves nearly four million passengers a year.  Although smaller than McCarran the Reno airport has its own fire department and police department.  Ms. Mora will have her hands full but I have seen her in action and she is up to the challenge.

The next the time the feds, (or anyone else), claim that we have some glass ceilings have them speak to the head of one of our local governments.

It is already time for our annual employment law seminar.  Never have there been more legal developments for employers to keep up with. The Las Vegas presentation takes place on May 2, 2013 at:

Tuscany Suites and Casino
255 E. Flamingo Road
Las Vegas, NV 89169

Click here to register or find about other seminar locations around the country.  This year’s topics and speakers at our Las Vegas presentation will be outstanding.  In addition to the very timely topics described below, don’t miss our lunchtime roundtable discussion on how to deal with wage and hour audits. We are very pleased to announce that Nevada Labor Commissioner Thoran Towler has agreed to be a member of our lunchtime roundtable.

For more information or registration questions, contact
Ilene Hasforth by phone at (702) 252-3131 or by e-mail at
ihasforth@laborlawyers.com

AGENDA

May 2, 2013

 

8:00 a.m. – 9:00 a.m.:     Registration and Breakfast

9:00 a.m. – 10:00 a.m.:   Session 1

Accommodations & the ADA: Practical Solutions to Real Workplace Challenges   

Mark J. Ricciardi, Esq. & Whitney J. Selert, Esq.

10:00 a.m. – 11:00 a.m.: Session 2

In Our Back Yard: Hot Topics on Nevada Specific Labor and Employment Law

David B. Dornak, Esq. & Anthony B. Golden, Esq.

11:00 a.m. – 11:15 a.m.: Break

11:15 a.m. – 12:15 p.m.: Session 3

Healthcare Reform for the HR Professional: What Do You Need to Know and Do? 

Callan G. Carter, Esq.

12:15 p.m. – 1:15 p.m.:  Lunch – Roundtable Discussion.  Wage and Hour Audits.

1:15 p.m. – 2:15 p.m.:    Session 4

Four More Years: The Future of Labor and Employment Law 

Whitney J. Selert, Esq. & Matthew T. Cecil, Esq.

2:15 p.m. – 3:15 p.m.:    Session 5

Your Action Plan: Ten Things to Do When You Get Back to Your Office

David B. Dornak, Esq. & Anthony B. Golden, Esq.

3:15 p.m. – 3:30 p.m.:    Break

3:30 p.m. – 4:30 p.m.:    Session 6

Sex, Lies and INVESTIGATE THIS!!

Scott M. Mahoney, Esq.

4:30 p.m. – 5:00 p.m.:    Final Questions and Adjourn

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.

#4       Your Lawyer Has Not Personally Taken Employment Cases To Trial Through Verdict

 

Yes it is true that most cases settle before trial.  However, for your lawyer to properly evaluate your case and give you advice on whether to settle or go to trial he or she must have substantial trial experience through verdict.  A lawyer who knows every nook and cranny of the substantive law may not know how it all comes together before a judge or jury.  On the other hand, a very experienced trial lawyer could pick up quite a bit about employment law but never know as much as the expert who advises employers every single day.  The bottom line is that when you ask your lawyer about experience ask him or her how many employment law jury trials he or she has personally tried to verdict, (many cases settle well before trial).  Think about finding someone new if the answer is “none.”  Similarly, you can decide how comfortable you are if the answer is just “one or two”.  PS:  Don’t feel you have to drop your employment law attorney just for being somewhat junior and without significant trial experience—just be sure a partner who has the requisite trial experience is supervising him or her.

#5       Your Lawyer Has Not Taken Time to Learn About Your Business

 

Your lawyer should be asking you numerous questions about how your particular business works.  That way he or she can truly understand your business interests and better advise you on day to day matters or the pros and cons of possible settlement of a claim.  Many lawyers want to visit your business and actually see what your employees do.  Some lawyers ask for a tour of the plant, (and will not charge for the time if it does not relate to a pending case), just to get to know you and your company better.  The bottom line:  be sure your lawyer has asked lots of questions about your company.

Watch for Part 3 of this series.  We’ll identify and discuss issues that arise from bills and from a lawyer’s unwillingness or inability to give succinct, practical advice.

#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).