Welcome to Legal Briefs for HR, an update on employment issues sent to over 4000 HR professionals, in-house counsel and business owners to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in! Back issues are posted on my firm’s website at www.munckcarter.com under E-Newsletter.
Here’s what’s hot:
- What is Your World View?- Here’s a brain teaser . . . does a nonexempt employee of a Texas-based consultancy who resides in Pennsylvania but performs some work in Canada and the UK earn overtime for the work performed outside our borders? According to a judge in Pennsylvania, the answer is “yes.” The employer was correct in pointing out that the FLSA does not apply to work performed outside of the U.S., however the employee was also correct in pointing out that the FLSA can be trumped by state law which often provides a higher wage to employees and, in this case, contained no language which limited its overtime pay requirement to work done stateside. Truman v. DeWolff, Boberg & Associates (W.D. Penn. 7-09). Lesson learned? When determining your obligations as an employer, knowing the federal law is not enough. States and municipalities have increased their regulation of employment issues to a remarkable degree over the last decade or so and it’s not unusual for the analogous federal statute to defer to a state/local law which provides more employee protection.
- Millions for Misclassification– A California jury awarded a sales rep $8.4 million in damages, after he was fired for complaining about reduced commissions and failing to show up at meeting to talk about it. The employer tried to argue that the rep was an independent contractor and it could deduct from his commissions at will. The jury disagreed, finding that the employer had sufficient control over the rep to confer employee status (citing to the employer’s demand to attend that meeting) and went on to find that termination of his employment violated public policy. Gardner v. Baby Trend Inc. (Cal. Super. Ct. 6-09). Penalties for misclassifying employees as independent contractors have been gaining steam for several years and the trend shows no sign of slowing. Make sure that the decision to create that type of arrangement is carefully vetted and documented before you go there.
- Silver Bird– The mandatory retirement age for commercial airline pilots was bumped from 60 to 65 in December 2007 and the FAA has now published the final rule implementing that change. Pilots may fly domestic flights until their 65th birthday and may pilot international flights that originate or end in the U.S., so long as there is a co-pilot under age 60. The change is a nod to longer life-spans and healthier life-styles. Given that several potentially disastrous flights were skillfully handled by “experienced” pilots (think Iowa cornfields and New York rivers), aren’t you happy to see some silver in the cockpit when traveling?
- Now Hiring– The Obama administration is filling key positions in federal agencies that oversee employment issues. On deck now are Jacqueline A. Berrien (associate director-counsel at NAACP), as chair of the EEOC, and three nominees for the NLRB – Craig Becker (associate general counsel for SEIU), Mark Pearce (law firm partner representing unions) and Brian Hayes (Republican labor policy director for the Senate Health, Education, Labor and Pensions [HELP] Committee).
- By the Book– In response to the dip in the economy and ensuing spike in reductions in force, EEOC has posted guidance on its website to help employees understand those severance agreements they’re signing. “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” is 16 pages of “gotcha” for employers who do not prepare and use these agreements properly. A severance agreement containing a release of claims is one document you should never pull off the dusty shelf or assume that “one size fits all” during a multi-state reduction in force. Need proof? How about a RIF’d employee who received his severance agreement, read it and hired a lawyer, negotiated changes to the severance agreement, signed the agreement, took the $100,000 payment and then sued the employer under the ADEA. Turns out the forms did not include all info required under the OWBPA amendments to the ADEA, making the ADEA release invalid. And just to add insult to injury. the plaintiff was not required to “tender back” the severance payment in order to sue his former employer. Ferruggia v. Sharp Electronics Corp. (D.N.J. 6-09). Be as informed as your employees increasingly are . . . talk to your counsel first, before seeking waivers of claims via severance agreements.
- Fair WARNing– The Federal Oversight, Reform and Enforcement of the WARN Act (FOREWARN) was filed in Congress on June 25 (S. 1374, H.R. 3042) to expand the reach of existing plant closing/mass lay-off law and increase the penalties for noncompliance. FOREWARN proposes to [a] drop covered employer size from 100 to 75 employees; [b] drop trigger from 50 to 25 affected workers; [c] lengthen advance notice period from 60 to 90 days; and [d] increase penalties to double back-pay. And just to reiterate the message from 1., above, do look into whether there is a state statute and/or local ordinance which may apply to your situation, even when WARN does not. At last check, CA, CT, HI, IL, KS, ME, MA, MI, MN, NH, NJ, NY, OR, RI, SC, TN and WI all had WARN “clones.” So does Philly, PA.
- Training Topic– It’s a really good idea to provide basic EEO training to any person involved in the interviewing process in your organization and an even better idea to refresh that training periodically, as memories fade and the laws change. Case in point . . . as of May 22, public and private employers in Oklahoma may not ask employment applicants whether they own or possess a gun. The penalty for this faux pas question is a fine of up to $1000. The purpose is to punish employers who may be trying to evade the OK statute which prohibits them from banning guns in locked vehicles parked on their premises.
- Never Mind– Ignore the June 30, 2009 expiration date in the top right corner on your Form I-9 (with 2-2-09 revision date in bottom right corner) and continue using until CIS issues a new one.
- Post It– Go to www.dol.gov/esa/whd/regs/compliance/posters/flsa.htm for a link to print new federal minimum wage posters. Or leave your July 2007 poster in place . . . that version remains acceptable for satisfying the posting requirement. As you likely already know, the federal minimum wage increased to $7.25/hour on July 24.
- Got Milk?– A bill introduced in Congress on June 10 (H.R. 2819) would amend the FLSA, requiring employers of 50+ employees to [a] provide breast-feeding employees “reasonable break time” to express breast milk during the workday within one year of birth of the employee’s child; and [b] make reasonable efforts to provide a private space, other than a bathroom, in which to express milk. The bill offers employers a 50% tax credit of up to $10,000 per year, to promote and support these efforts. For full text of the bill, go to http://thomas.loc.gov and insert the bill number. This is another area where the states are way ahead of the Feds. Check out www.llli.org/Law/LawBills.html for links to summaries of breastfeeding laws in the U.S. and abroad. The website is sponsored by La Leche League International.
- Summer School– If you’re interested in a live legal update with yours truly, I’ll be speaking at the Dallas/Fort Worth Texas Recruiters Network meeting at Prestonwood Country Club on August 5. For registration info, go to www.dfwtrn.org.
- For the Birds– If you like being “tweeted” and want breaking news on employment law changes, follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com
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