Audio (MP3) Listen in New Window Presentation (PDF) Open in new window Handout (PDF) Open in new window Legal Update Interesting Developments in Human Resources Presented By: Steve Lyman, Attorney Hall, Render, Killian, Heath, & Lyman Legal Update DOL Says “Most Workers Are Employees,” Not Independent Contractors The extent to which the work performed is an integral part of the employer’s business; The worker’s opportunity for profit or loss depending on his or her managerial skill; The extent of the relative investments of the employer and the worker; Whether the work performed requires special skills and initiative; The permanency of the relationship; and The degree of control exercised or retained by the employer. Joint Employment – NLRB Broadly Redefines the Standard Management Structure Hiring Discipline and Termination Scheduling and Hours Wages and Benefits Work Processes Training and Safety Length and Terms of the “Agreement” Confidential Workplace Investigations – a Dilemma for Employers Witnesses need protection; Evidence is in danger of being destroyed; Testimony is in danger of being fabricated; and There is a need to prevent a cover up. NLRB “Deletes” Employer’s “No-Recordings” Rules Rule is unlawful if explicitly restricts protected activities, if not… There is no violation unless: employees would reasonably construe the language to prohibit protected activity; the rule was promulgated in response to union activity; or the rule has been applied to restrict the exercise of protected rights. Deductions from Employee Paychecks – Indiana Makes Some Welcome Changes If a court finds that the employer’s failure to pay an employee was not in good faith, then the court shall order that the employee be paid an amount equal to two times the amount of wages due Writing. The assignment must be in writing. Personally Signed. The employee must personally sign the assignment document. Revocable. The assignment must state by its terms that it is revocable at any time by the employee by giving written notice to the employer. Employer Consent. The employer must agree to make the deduction. Delivery. An executed copy of the assignment document must be delivered to the employer within ten days of its execution. For a Specific Purpose. Authorized by the Statute That’s Quite a Bump! DOL Proposes Doubling Overtime Exemption Salary Threshold Raise the salary threshold from $455 a week (the equivalent of $23,660 a year) to about $970 a week ($50,440 a year) in 2016. Determine who is now exempt Increase Salary to Threshold? Change to hourly compensation? Pay overtime for all hours over 40 Reduce hours to avoid overtime Financial impact on the organization Increase staff or reduce staff to meet needs Record keeping Time and attendance system adjustments Job description / Handbook review and revision If not exempt then worry about Hours of work: Employee morale Plan to explain reasons for changes Liability only going forward Oh the Profanity! NLRB Protects Vulgar Comments Again Bob is such a NASTY M***** F****** don’t know how to talk to people!!!!!! F*** his mother and his entire F****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! Whether there is evidence of antiunion hostility; Whether the employee was provoked by management; Whether the employee’s conduct was impulsive or deliberate; The location of the Facebook post; The subject matter of the post; The nature of the post; Whether the employer considered language similar to that used by the employee to be offensive; Whether the employer maintained a specific rule prohibiting the language at issue; and Whether the discipline imposed upon the employee was typical of that imposed for similar violations or disproportionate to his offense. Telecommuting: A Reasonable Accommodation? Not Necessarily Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. Employer Handbook Rules – NLRB Memo Says What’s Lawful and What’s Not Employees would reasonably construe the rule’s language to prohibit protected activity; The rule was promulgated in response to union or other protected activity; or The rule was actually applied to restrict the exercise of protected rights. Expired FMLA Forms Now Updated New expiration date of May 31, 2018 New GINA Language: “Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).” WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition WH-381 Notice of Eligibility and Rights & Responsibilities WH-382 Designation Notice WH-384 Certification of Qualifying Exigency For Military Family Leave WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Protective Orders at Work – Indiana’s New Protections Prohibits Indiana employers from terminating an employee based on: the filing, by the employee, for a petition for a protective order for the protection of the employee; or the actions of an individual against whom the employee has filed a protective order. However, the law does not prohibit an employer and employee from mutually agreeing upon the alteration of certain aspects of the employee’s employment. Union Authorization Cards Are Now Just a Few Clicks Away The signer’s name; The signer’s email address or other known contact information (e.g., social media account); The signer’s telephone number; The language to which the signer has agreed (e.g., that the signer wishes to be represented by ABC Union for purposes of collective bargaining); The date the electronic signature was submitted; and The name of the employer of the employee. DOL “Suffers and Permits” Broad Interpretation of “Joint Employment” “Suffer or permit to work” means that if an employer requires or allows employees to work, then they are employed, and the time spent is probably hours worked. Under this definition, it is possible for a worker to be jointly employed by two or more employers who are both responsible, simultaneously, for compliance. Where joint employment exists, one employer may also be larger and more established, with a greater ability to implement policy or systemic changes to ensure compliance. Thus, DOL may consider joint employment to achieve statutory coverage, financial recovery, and future compliance, and to hold all responsible parties accountable for their legal obligations. Facebook and the NLRB – What’s Not to “Like” One employee had “liked” a former employee’s post: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” The other employee had posted: “I owe too. Such an [expletive deleted].” Company policies prohibited “inappropriate discussions about the company, management, and/or coworkers.” Using “Unpaid” Interns Serves as a $1.34 Million Lesson for Employers The plaintiffs claimed that they worked two or three days per week, eight hours per day, performing tasks like washing dishes, getting coffee, reading scripts and answering phones. They were classified by the employer as “interns.” The plaintiffs maintained that they received no academic or vocational training and that the employer’s failure to pay them for their work was consistent with a “corporate policy or practice of minimizing labor costs” by denying compensation to them and their would-be class After a little more than a year into the litigation, the parties reached a proposed settlement for an approximate amount of $1.34 million. Notice will be distributed to an estimated 1,000 class members. The lawyers representing plaintiffs would petition the court for up to $325,000 in attorneys’ fees and costs. EEOC Proposes to Collect Gross Pay and Hours Worked Data in 2017 Pay Bands. The data will be collected using W-2 data in 12 pay bands in each of the 10 EEO-1 job categories looking back 12 months from July each year. According to the EEOC’s proposal, employers will simply count and report the number of employees in each pay band. For example, a filer will report on the EEO-1 that it employs three African American women as professionals in the highest pay band. Hours Worked. The EEO-1 will also collect the total number of hours worked by the employees included in each EEO-1 pay band cell. This data will allow analysis of pay differences while considering aggregate variations in hours. 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