January 6, 2012

HR Fact Friday: NLRB Poster Deadline Postponed Again

Filed under: Compliance,Legal Issues,Unions/NLRB — Paul @ 2:27 pm

The National Labor Relations Board (NLRB) recently imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA).  The new NLRB requirement was supposed to take effect as of November 14, 2011 but that deadline was later delayed until January 31, 2012.  The NLRB has delayed the deadline again, and it now is set at April 30, 2012.  The most recent delay is a related to a court request to postpone the effective date pending a legal challenge to the new requirement.  If you want more information, follow this link to the NLRB’s FAQ on this new posting requirement: https://www.nlrb.gov/faq/poster

A copy of the new poster is available here: https://www.nlrb.gov/poster and here: https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_fnl.pdf

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December 13, 2011

You Can’t Take it Back: Social Media Risks

Filed under: Compliance,Legal Issues — Olivia @ 10:39 am

I’ll admit that when it comes to keeping up with celebrity gossip, I’m a bit of an amateur.  Still, I was relieved when Ashton Kutcher decided to give Twitter a break after he shared his feelings about Joe Paterno’s firing.

Twitter is a powerful social networking tool because it can get the sender (your best friend, a celebrity, a company, etc.) closer than the receiver could ever be previously.  Live out your teenage fantasy of getting directly in touch with that certain celebrity who graced your walls, get the latest news, or keep up with your friends, all in 140 character snippets.

The draw of Twitter can also be its downfall.  Last week, ESPN.com writer Chad Dundas writes about a UFC fighter who was fired due to his Tweets.  Former WEC bantamweight champion Miguel Torres tweeted a one-liner about “rape vans” that he had apparently seen on TV.  This was Torres’ third attempt at humor in the area of sexual assault, and it didn’t go over well with the powers that be.  The UFC has been on the leading edge of social media, encouraging its fighters to engage with fans by offering financial incentives to those who stay active with Twitter.

When you encourage somewhere in the neighborhood of 300 professional fighters to share their unfiltered thoughts with the masses — Torres has nearly 50,000 followers — in staccato burst of 140 characters or less, mistakes are going to be made. Mistakes that have been committed to writing and will live on forever in the unforgiving elephantine brain of the Internet.

According to Dundas, the UFC does not have a formal policy to outline standards for its fighters (or anyone else in the company) when it comes to social media interaction.  The advice given is to use “common sense.”

So what can you do in your company to keep social media on the up and up?  Create clear policies for your employees that designate which employees will engage in social media on the company’s behalf and conduct training to ensure these policies are understood.

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December 5, 2011

FLSA Question of the Week – Do I Need to Pay Non-Exempt Employees if they Work Unauthorized Overtime?

By now, we all have seen the headlines of increased staff in the Department of Labor’s Wage & Hour Division.  This is to be interpreted as ramped up scrutiny and audits in the classification of employees and how they are paid.  Therefore, I’m continuing my blog this week with a question that is asked frequently.

“Do I have to pay overtime to those over achiever non-exempt employees that come to work early or stay a few minutes late?  After all, I’m not asking them to put in their time. They are doing it on their own accord and they aren’t asking for overtime pay either, so I’m assuming it’s just extra time they are giving the company.”

Bottom line is, employers must pay for hours worked, including overtime hours.  Even if your company policy states all overtime hours need to be preapproved, these unapproved overtime hours still must be paid.  A policy alone is not enough.  

Management has a duty to ensure that work is not performed if it doesn’t want it to be performed. The problem should be addressed through corrective action, not pay deductions.  If an employee is “allowed” to work, the employee must be paid, even if your policy says otherwise.  This isn’t the Army; you can’t volunteer to work extra time. Again, it’s a disciplinary issue, not a pay issue.

If this has happened to you, please share what you did and how it was handled.  Also, please send me your FLSA questions as I will be focusing on some of the more common issues in the upcoming weeks.

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November 11, 2011

HR Fact Friday: Employment Termination 101

Filed under: Discipline & Termination,Legal Issues — Paul @ 6:00 am

No one likes to do it, but pretty much everyone has to do it once it a while.  There probably are lots of things about which this statement is true, but certainly for employers it is true about having to fire an employee.  There are many questions regarding what legal risks there are related to terminating someone’s employment.  Of course, the facts of each situation are important and help determine the risk analysis.  However, there are basic considerations that apply to almost every discharge. Here are some helpful tips for your review.  Tips for Termination.

 

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September 28, 2011

Weekly Wednesday Acronym: Correcting Misclassifications through the VCSP – What’s this all About?

Filed under: Compensation,Compliance,FLSA,General HR Buzz,Legal Issues — Joyce @ 12:55 pm

Independent contractor or employee.  It is a decision that many employers have to make when setting up new hires.  Sometimes it is a fine line to determine which side of the fence your “worker” is on, and there are certainly financial benefits of classifying workers as independent contractors.

Evidently the IRS believes this is a widespread problem and last week announced a new “Voluntary Classification Settlement Program” (VCSP).  As defined by the IRS:

“The VCSP is a new program developed by the IRS that allows taxpayers to voluntarily reclassify their workers as employees for future tax periods for employment tax purposes. Under the VCSP, a taxpayer will pay 10 percent of the amount of employment taxes calculated under the reduced rates of section 3509(a) of the Internal Revenue Code for the compensation paid for the most recent tax year to the workers being reclassified under the VCSP. In addition, the taxpayer will not be liable for any interest and penalties on the payment under the VCSP, and will not be audited for employment tax purposes for prior years with respect to the worker classification of the workers. “

If that sounds like a good deal, hold on.  Some analysts believe there are many other factors which should be considered before signing up for the VCSP.  According to Steven Dunn, Contributor for Forbes, “Employers should avoid the program, as the relief promised by it is illusory.”  One factor to consider is that an employer who participates in the VCSP agree to extending by three years the period of limitations on assessment of employment taxes for the first three calendar years.  This begins after the date as of which workers were treated as employees.

Additionally, although this is to be treated confidential, if the information becomes public does that open the door for a wage hour class action?  After all, by participating in the VCSP, the employer is “admitting” to misclassifying workers.

Another item to be considered is that the VCSP is aimed at employment tax compliance.  This does not relieve any non-compliance or liability under state tax laws, workers’ compensation laws, federal or state wage and hour laws, ERISA, or other employment laws.  These are other areas that may need to be addressed, after dealing with the IRS through the VCSP program.

So is this a bad program?  No.  In some cases, this may provide some relief for inadvertent misclassifications and allow a fresh start.  Best practice is to properly classify employees from the get-go and eliminate the need for “clean-up” as much as possible.  What do you think?

Sources: 

IRS:  http://www.irs.gov/businesses/small/article/0,,id=246014,00.html

Form 8952:  http://www.irs.gov/formspubs/article/0,,id=242970,00.html

Steven Dunn, Forbes:  http://www.forbes.com/sites/stephendunn/2011/09/27/employers-beware-of-irs-illusory-worker-classification-program/

Fact Sheet IRS – Employment Taxes and Classifying Workers:  http://www.irs.gov/newsroom/article/0,,id=177092,00.html

Fact Sheet DOL – Employment Relationship Under the Fair Labor Standards Act: http://www.dol.gov/whd/regs/compliance/whdfs13.pdf

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August 11, 2011

Narrowing the Pay Gap

Filed under: Compensation,Discrimination,Legal Issues — Tags: — Olivia @ 2:56 pm

The U.S. Labor Department’s Office of Federal Contract Compliance Programs wants your opinion. The OFCCP is currently considering developing a new data tool that will collect salary and benefit information paid to employees of federal contractors and subcontractors. The tool would ideally improve the OFCCP’s ability to gather the data that is used to search for indicators of discrimination. The department recently published a notice of the proposed rulemaking in the Federal Register to solicit public feedback on the proposed tool.

The OFCCP enforces Executive Order 11246 which prohibits companies that do business with the federal government from discriminating in employment practices on the basis of sex, race, color, national origin, or religion.

In addition to collecting data for the OFCCP to facilitate investigations, the proposed tool would include a self-assessment facet to help employers evaluate their own compensation practices. “Today, almost 50 years after the Equal Pay Act became, law, the wage gap has narrowed, but not nearly enough,” said Secretary of Labor Hilda L. Solis.

View the proposed document and submit your comments by going to the Regulations.gov page.

HRN is ready to assist you! Our consultants are available to answer your questions about providing structured salary administration, performance management, and more. Contact us at 800-940-7522 for more information.

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June 20, 2011

Breaking News…Wal-Mart wins in Supreme Court Decision

Filed under: Compliance,Discrimination,Legal Issues — Tags: , , — Joyce @ 12:03 pm

Breaking News…

The Supreme Court has blocked a sexual discrimination class action lawsuit representing 1.6 million women against Wal-Mart.  The justices agreed that the lawsuit cannot proceed as a class action in its current form.  This reversed a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. 

What’s next for the women who filed the lawsuit?  If they choose to proceed, they may pursue their claims on their own which will make it more difficult to reach a favorable financial verdict.  Additionally, this decision by the Supreme Court may make it more difficult for similar lawsuits to proceed as class action.

Justice Antonin Scalia’s opinion for the court’s conservative majority said there needs to be common elements tying together “literally millions of employent decisions at once.”

But Scalia said that in the lawsuit against the nation’s largest private employer, “That is entirely absent here.”

In a statement, Wal-Mart said, “The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.”

Marcia D. Greenberger, co-president of the National Women’s Law Center, said “the court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

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June 1, 2011

IRS – Relief for Small Employers

Filed under: Legal Issues — Joyce @ 6:00 am

Yes, it’s true!  We usually don’t see the word “relief” associated with “IRS”, so keep reading.  The IRS has issued interim guidance concerning the Affordable Care Act (ACA) which is going to provide relief for small employers.  You may recall that effective for tax years beginning after December 31, 2010, employers are required to report on Form W-2 the total cost of group health coverage including the portion paid by the employer and employee.  Things weren’t quite ready to handle that information, so the IRS issued guidance making the reporting requirement voluntary for all employers on 2011 Form W-2.

Recently, the IRS provided further relief to small employers (employers with less than 250 W-2 forms) relieving them from reporting on the 2012 Form W-2 as well.  For more information, go to http://www.irs.gov/pub/irs-drop/n-11-28.pdf

 

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May 9, 2011

The Wal-Mart Case

Filed under: Legal Issues — Joyce @ 6:00 am

The largest employment class action lawsuit in history was heard by the Supreme Court the end of March, 2011.  This all began in 1999 after Stephanie Odle, an assistant manager, discovered she was making $10k less than a male counterpart with the same title who had less experience. After filing a complaint, she was fired.

 

Fast forward twelve years when plaintiffs, representing more than 1.5 million current and former female Wal-Mart employees, bring a class action alleging that they, too, faced discrimination in pay and promotion.  Individually, the wage gap each year for every member in the class is around $1,100; but collectively Wal-Mart could owe more than $1 billion in back pay.

 

The major question is defining commonality.  Is there enough “cohesion” among the women to justify treating them as a single class?  The complaint being issued “faces in two directions”, as stated by Justice Anthony Kennedy.  Plaintiffs claim that gender discrimination at Wal-Mart resulted from excess discretion given to local store managers on one hand, and a companywide “corporate culture” that led to biased decisions on the other hand.

Many court watchers predict a win for Wal-Mart, based on the plaintiff’s inability to prove cohesion or common facts that apply to the class.  In which case, the plaintiffs will most likely believe they didn’t “Save Money and Live Better” during their Wal-Mart employment experience.

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May 2, 2011

Gender-Based Wage Gap Persists, Experts Agree at EEOC Forum

Filed under: Compensation,EEO,General HR Buzz,Legal Issues — Joyce @ 10:37 am

Gender-based wage discrimination remains a problem today and a percentage of the wage discrepancy cannot be explained by non-discriminatory factors, said government and private experts at a public forum held on April 28, 2011 at the headquarters of the U.S. Equal Employment Opportunity Commission (EEOC). 

The forum was one of 24 such events the EEOC is sponsoring across the country during April and May to raise awareness of the problem of wage discrimination and to educate the public.  The Commission is a key member of the National Equal Pay Enforcement Task Force, launched by President Obama to “improve compliance, public education, and enforcement of equal pay laws.”  The headquarters event featured leaders from other Task Force members including the Departments of Justice and Labor, and the Office of Personnel Management.

“We have come a long way since the days when gender-based inequities in access to jobs and payment of wages were sanctioned by law, but studies show that a significant portion of the wage disparity cannot be explained by differences in experience, specific work performed, education or other non-discriminatory factors,” said EEOC Chair Jacqueline A. Berrien.  “This persistent disparity is a stark reminder that the EEOC’s work to end every form of sex discrimination in the workplace — including compensation discrimination — is still unfinished business.”

Katherine M. Kimpel, a partner in the law firm Sanford Wittels & Heisler, kicked off the second panel by stating that if women think they are being paid equitably in their jobs, unless they have looked at the relevant data, the likelihood is that they are not. She said that many times women had come to consult her about other discrimination issues, insisting that pay was not a problem, only to find out later that they were being underpaid.

Serena Fong of Catalyst, a nonprofit membership organization dedicated to expanding opportunities for women in business, said that there is a gender leadership gap as well as a pay gap. She noted that over 98 percent of Fortune 500 companies have male CEOs, and that the salary studies conducted by Catalyst show that women at these companies start off with salaries $4,600 less than men, even accounting for differences in education and experience.

Cecelie Counts, the legislative representative of the AFL-CIO, told the group that it’s important not to forget the lowest wage earners — day care workers, cleaners, aides — for whom the wage gap has an even more pronounced impact.  According to Lisa Maatz, Director of Public Policy and Government Relations of the American Association for University Women (AAUW), one way to try to combat the wage gap is through legislation.  She regretted the failure of the Paycheck Fairness Act to pass during the last Congress, but noted that the bill had been reintroduced in the Senate and House.

The EEOC enforces federal laws prohibiting employment discrimination.  More information is available at www.eeoc.gov.

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