Ten Reasons to Find a New Labor/Employment Attorney—Part 2

Posted on December 29, 2012 by Mark Ricciardi

If you missed Part 1, which described the first three things to think about when deciding whether you need a new Labor/Employment Attorney, you can find that post here.  Here are the next three factors you must consider when you are deciding whether to get a new Labor/Employment attorney.

 

#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.

Posted in Employment Law, General, Labor Law, Lawyers | Leave a comment

Ten Reasons to Find a New Labor/Employment Attorney—Part 1

Posted on November 30, 2012 by Mark Ricciardi

Employers have never been more heavily regulated and scrutinized by government authorities.  How can an employer be sure it is protected?  Most companies believe that that it is crucial to have a qualified labor/employment attorney available to immediately provide advice and representation.  However, the legal field has never been more crowded and competitive.  Choosing the lawyer with the most clever advertisement or the slickest brochure may not be the best approach.  Whether you are choosing a labor/employment lawyer for the first time or deciding whether to find a new one here are the ten biggest things to avoid:

 

#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).

 

Posted in Employment Law, General, Labor Law, Lawyers, NLRB | Leave a comment

Beware of the Myths

Posted on October 17, 2012 by Mark Ricciardi

A number of employers, even experienced or sophisticated employers sometimes believe, (or fool themselves in believing), some common myths about what is legal when it comes to employees.   Here are the some of the most common:

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.

Posted in Exemptions, General, Labor Law, NLRB, Overtime, Wage-hour | Leave a comment

Arbitrator’s Decision Grants Raises to Washoe County Deputy Sheriffs

Posted on September 24, 2012 by Mark Ricciardi

Arbitrator Ronald Hoh’s September 17, 2012 decision awarding the Washoe County Deputy Sheriff’s Association a 3.125% across the board wage increase is here.   Hoh selected the union’s proposal over the County’s proposal for a 3.4% base wage reduction.

The decision is noteworthy for the fact that it awards a pay increase despite the fact that the economy is in shambles and the other Washoe bargaining units had been making concessions.  Also noteworthy is the arbitrator’s stunning assertion that in deciding that the County could afford the raises he considered the fact that County could have implemented a new tax but in the past had refused to do so.  (See pages 27 and 31).  Opining that because the County never explained why the tax could not be implemented the County was merely shying away from a “unpleasant” political decision.  It is true that making largely unemployed citizens pay a new tax so deputies can get 3.125% raises would be “unpleasant” for the County Commission.

Here are some points worth noting:

  • The arbitrator did concede that an employer can defend against a proposed wage increase where it can show that “vital programs” are clearly threatened.  (See page 27).
  • The County’s ending fund balance exceeded budget by $4.16 million.  (See page 29).
  • The County’s movement of $19 million into a fund for payment of retiree health benefits was not legally required therefore that was money that could fund raises.  The arbitrator conceded that funding of the future liability would be “prudent”, but he declined to say what level would be prudent. (See page 30).
  • The County historically over estimates expenses when budgeting. (See page 27).   No discussion by the arbitrator regarding the fact that agencies must submit balanced budgets and that if they did the opposite and underestimated expenses they would either be failing to pay bills, cut services on short notice or spend more than budgeted,  (and the person doing the spending would go jail). Concessions by other bargaining units are not very relevant according to Hoh.  External comparability is the most relevant and is “market driven”. (See page 41).
  • Any inequities between the bargaining units have been agreed to by the employer over time. (See page 42).  However, the arbitrator did hint that if county had historically treated all the bargaining units exactly the same, that pattern might be more relevant. (See page 52).
  • Inequities between the bargaining units are also caused by the fact that non public safety unions don’t get binding arbitration and are therefore “helpless” after impasse. (See page 42).  This is factually wrong—the arbitrator ignored NRS 288.200 paragraph 6 which permits any union to ask that the fact finder’s report be binding on the parties.
  • Stunning:  spending more on the deputies’ may negatively impact the morale of other County employees but will not negatively impact existing public service to the community.  Just the opposite—the raises will improve public service because deputies will have improved morale.  Happier deputies are better deputies.  Hard to argue with that!

Of course the County’s case had some problems:

  • The County Manager sent an email to employees painting perhaps too rosy a picture of the County’s finances. (See page 29-30).
  • The Sheriff himself testified as a witness for the union that the deputies’ wage and benefit package had ranked last or nearly last among the nearby entities.  The arbitrator decided that the wage and benefit package resulted in a significant recruitment and retention problem for the County. (See page 49-50).

The upcoming legislature is likely to again consider changes to NRS 288–this decision is likely to spur proposed amendments.

 

 

Posted in General, Interest Arbitration, Public Sector Unions | Leave a comment

Election Day is Coming–Even in Non-Swing States

Posted on September 16, 2012 by Mark Ricciardi

The upcoming general election is likely a big deal to you as a citizen, regardless of your party affiliation or whether you are more interested in the presidential race or some important state or local race. It should also matter to you as an employer.

Employers view a big election from somewhere between two extremes. Some companies just want to know how they can be sure that election day causes the operation as little disruption as possible. On the other end of the spectrum is the employer that wonders how can it encourage all of its employees to get out and exercise their right to vote and perhaps even vote for the people the company thinks would be the best for the business.

Legal risk for employers exists at both ends of that spectrum. You must not deny employees time off to vote. Even if you want to encourage employees to take time off to vote you cannot coerce them to vote for the candidate or ballot question of the employer’s choice.

Here’s the easy part: Employees are absolutely entitled to time off with pay to vote provided that it is impractical to vote before or after work and they have requested the time off before election day.

Except for those folks who work a swing or grave shift the issue of impracticality is probably not worth fighting over. Of course you could start right now reminding employees about early voting and let them know the hours the polls are going to be open on election day. Encourage them to start thinking and planning how and when they will get to the polls. You can perhaps even create a form for them to fill out and submit to the company before election day so that the time off can be approved. The form should ask where the employee’s polling place is because the employee is entitled to  sufficient time to vote and according to the statute that depends on the location of the polling place relative to the work site. Here is part of NRS 293.463, (the entire statute is here):

A sufficient time to vote shall be determined as follows:
(a) If the distance between the place of such voter’s employment and the polling place where such person votes is 2 miles or less, 1 hour.
(b) If the distance is more than 2 miles but not more than 10 miles, 2 hours.
(c) If the distance is more than 10 miles, 3 hours.

What about an employer that wishes to recommend or encourage employees to vote a certain way?  Remember that legal risk aside, some employees will always resent messages they think are meant to tell them how to vote.  Consider your particular workforce and be careful not to create morale problems that outweigh the potential  benefits of advocating for your favorite candidates/issues.   What an employer may lawfully do depends on which elections are involved, federal or state.

Federal elections are governed by complicated rules put out by the Federal Election Commission (FEC). Employers may always communicate to employees about legislative matters. However, such communications must deal with the legislation only—if any legislators are mentioned by name there can be no discussion of their re-election, opponents or candidacies.

Employers who wish to expressly advocate to employees the election or defeat of clearly identified federal candidates can do so only to a limited subset of its employees, identified in the FEC rules as the “restricted class”. The restricted class includes salaried officers, managers and professionals. It does not include hourly employees or members of labor unions. The restricted class does include stockholders, even if some of them happen to be hourly employees.

The only way for an employer to expressly advocate to hourly or union employees would be to follow detailed FEC rules and invite a candidate or party representative to appear in front of employees. If you wish to wade into this tricky area you should check out the rules here and definitely consult with your labor counsel.

For state and local elections there are no special rules. The rule of common sense should apply—don’t be heavy handed. Telling employees which candidates for state and local office would be good for the state, the business and ultimately for the employees is the best thing to do, if you choose to go that route. Then encourage employees to vote; however they ultimately decide.

To protect the company from claims of unlawful communications or coercion take these steps:
• Have your corporate policies and other communications make it clear that the company and its managers are prohibited from engaging in express advocacy for federal candidates to hourly employees, members of labor unions and other low level employees.
• Train managers who are lobbying employees that express advocacy must be limited to federal legislative matters and state and local candidates and issues.
• Prepare scripts for all messages and warn presenters to stick to the prepared materials.

Whether you end up celebrating or crying the day after the election do your best to plan ahead.

Posted in Employment Law, General, voting/elections | Leave a comment

Three Steps To Take Right Away

Posted on August 19, 2012 by Mark Ricciardi

No matter how many employees you have or what industry you are in, the current economic climate provides a good breeding ground for several specific problems. Here is a short list of potential issues and steps you can take now:

1. WATCH HOW YOU PAY PEOPLE

Two different initiatives have converged to make employers who pay improperly prime targets in 2012.

a. The US DOL Is on a Mission—And Has Funding

The Obama Campaign promised to beef up enforcement of employee protections. The President made good on that promise in part by funding increases for the Department of Labor (DOL). That’s the agency that enforces the Fair Labor Standards Act (FLSA). Even with a budget compromise in the works don’t expect that the DOL enforcement budget will suffer much.

Here in Las Vegas the DOL office was a “resident office” that was merely a satellite of the Phoenix District Office and was down to two or three investigators. Now Las Vegas is its own District. That means that we have a District Director, an Assistant District Director and are on track to have eight or more investigators. While the new District Director and Assistant seem like reasonable folks, make no mistake that they are here to enforce the FLSA. Keep in mind that, except for the daily overtime provision, the Nevada Overtime Law has fewer teeth than the FLSA. Therefore on many overtime issues if the couple of DOL investigators had never made it to your company your company had received a pass for many years.

Now you should get ready to have your overtime practices scrutinized. Expect to be questioned about why you consider certain positions to be exempt from overtime. Expect your timekeeping procedures and records to be questioned. Even if you are trying to everything right it is easy to make wage-hour mistakes and many good employers do.

What can you do right now? Perform a wage-hour self audit. The idea 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. Just don’t ignore the issue.

b. States Lose Employment Tax Money When There Are Fewer Employees

Sure there are fewer employees because companies have done layoffs and are doing more with fewer people. Employers have also turned to outsourcing which can sometimes save money as well. But many employers also use independent contractors instead of employees. The risk is that you might “misclassify” an individual as a contractor when under the law he or she would actually be considered an employee. Whether you have been doing that for years or have just started during the economic crisis, remember that you are potentially at risk. Various Nevada agencies are aggressively auditing employers, including the Employment Security Department (ESD) and the Nevada Labor Commission. Expect the DOL to look at that issue too. When you misclassify an individual as a contractor you are subject to potential tax liability, overtime or minimum wage liability and the entire panoply of roll-ups. Benefits and ERISA claims are not out of the question.

What is your action step now? As discussed above, the wage-hour self audit is your best bet. And for this one be sure to obtain legal help—the test for independent contractor status is tricky and different government agencies use different legal tests.

2. WATCH HOW YOU HANDLE DISCRIMINATON AND HARASSMENT COMPLAINTS AS WELL AS ADA COMPLAINTS

In the last legislature, the Nevada Equal Rights Commission (NERC) faced the end of the road. Its funding was slashed and nearly eliminated. Even well before that happened the US Equal Employment Opportunity Commission (EEOC) opened a resident office here in Las Vegas. It had been well known that the EEOC felt that NERC was not aggressive enough with Nevada employers—especially with the evil casinos. Casinos never got a free pass from NERC, but that story gave the Federal Government a great excuse to spend money on a new EEOC office.

Now every Nevada employer, casino or not, will be hearing from the EEOC. Discrimination charges with merit, and therefore legal exposure, will still need to be dealt with by employers as before. But not long ago there were new regulations released by the EEOC regarding the Americans with Disabilities Act (ADA). Because of those regulations few ADA cases will now be won by employers simply because the plaintiff did not fit the technical legal defination of “disabled”. Therefore expect that the EEOC will take even marginal cases or those with little or no damages and try to make examples of employers who have not done the basics. By the basics I mean:

● Having a comprehensive and up to date discrimination and harassment policy.

● Performing regular and comprehensive training for supervisors on harassment and discrimination prevention.

● Using (and documenting the use of) a formal interactive process to deal with employees requesting an accommodation.

The EEOC must justify its new Las Vegas office—expect to hear from them.

3. ANTICIPATE AND BE READY FOR UNION ORGANIZING

Once again, here there are two converging factors, both of which require you to be vigilant.

a. Unions Are Losing Ground and Need Members Who Will Pay Dues

It’s no secret that unions are at their lowest membership levels ever. Membership has continued to decline, from 12.3% of the workforce to 11.9%. Only 6.9% of private sector employees are now organized.

This means that unions will continue to aggressively attack industries where the jobs cannot be exported: hospitality, health care and government. But note that in the past unions have concentrated on the largest employers. Unions get the largest payoff in dues and generally do better in elections where the bargaining unit is large. But with the crisis now faced by unions even small employers in any industry can be a target and need to be ready.

What can you do right now? There are many things an employer can do to union proof the workforce and I will discuss many of them in future blog posts. At least for now learn 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 liabilty under the National Labor Relations Act.

Also consider performing 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 organizing.

b. The Obama Administration Could Not Deliver EFCA To the Unions so Instead Has Delivered the NLRB

You should know by now that the National Labor Relations Board is dominated by labor friendly appointees. And not just garden-variety labor friendly appointees but folks who are dedicated to making it easier for unions organize your company. The NLRB, even without Congress changing a word of the National Labor Relations Act can drastically change the rules that apply to union elections and how unfair labor charges are prosecuted.

Here’s one very recent example. After a union lost an election it filed an objection with the NLRB and asked that the election results be thrown out and a new election held. The objection alleged that the employer committed misconduct during the election. The misconduct? Simply having a couple of rules in the employee handbook that could affect employee rights protected under the National Labor Relations Act. There was no evidence that any of the alleged improper rules were enforced during the union campaign. There was also no evidence that any of the alleged improper rules inhibited any employee activity during the union campaign. Nor was there any evidence that any of the employees even knew about the rules! You can read this crazy NLRB case here.

What can you do now? Have your employee handbook carefully reviewed by a competent labor attorney, not just someone who practices in the general employment field. We have found rules in many of our client’s handbooks that would be considered unlawful by the NLRB but with some minor revisions can be brought into full compliance with current law.

I’ll have more about all of the above topics in future blog posts.

Posted in Exemptions, General, Independent Contractors, Labor Law, Union avoidance, Wage-hour | Leave a comment

Why I Love What I Do

Posted on July 15, 2012 by Mark Ricciardi

Few fields give attorneys the opportunity to delve into so many different areas of the law every day.   When advising employers I get to talk about contract law, tort law, and lots and lots of different statutory laws.  Of course that means that employers and human resources professionals need to also be experts on literally hundreds of laws and regulations that bind employers.

Staying current should not be daunting but takes some effort.  Reading something relevant and helpful each day should be a habit.  I will try to do my part by producing helpful information on this blog on a regular basis.  Thanks for reading.

Posted in General | Leave a comment