Tag Archives: Federal Employment Law

Employers Required to Display Poster Changes

Effective August 1, 2016, all employers of every size workforce must comply with two new mandatory federal poster changes.  The US Department of Labor (DOL) has updated its Fair Labor Standards Act (FLSA) poster and the Employee Polygraph Protection Act (EPPA) poster.

The changes to the FLSA poster include removing civil penalty amounts, the addition of the riflsaghts of nursing mothers, and a deletion of text under the Child Labor section. Except for a few very narrowly exempted employers, whether you have two employees or two hundred employees, you need to put up this new poster.

The changes to the EPPA poster include a removal of a civil penalty limit, a change in their toll-free phone number, and an additional TTY phone number. All employers, regardless of the number of employees and regardless of whether you would ever consider giving your employees a polygraph, must display this poster in the workplace.

The mandatory notices must be posted immediately. As with all of your employment posters, these two new ones should be displayed in a prominent and conspicuous place in each of your establishments wherever notices can be readily seen by employees and applicants. A spot right next to your time clock or in your employee entrance area is ideal. Just make sure wherever you place your posters is a place that all of your employees regularly enter.

If you need help knowing which posters besides these two you need to have displayed in your workforce, you can find the lists of required federal posters here and Texas posters here. All of the required posters are available online for free. You don’t need to pay a commercial service for a combined poster that isn’t customized to the specifics of your workplace.

Don’t ignore your federal and state posting requirements. The penalties have risen recently. For example, if you have 15 or more employees, the failure to put up the required EEO poster was raised to $210 in 2014 for each of your locations and is now indexed to the Consumer Price Index to increase with inflation. Considering you have as many as twelve posters required in your workplace, you don’t want to be fined for something so easily remedied.

Sexual Harassment Prevention Training Essential

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Every employer with 15 or more employees needs to require employees to attend sexual harassment prevention training. That is the takeaway that businesses need to understand from a new task force report on harassment in the workplace that the Equal Employment Opportunity Commission published in June 2016.

The EEOC’s report states that businesses have “to reboot workplace harassment prevention efforts.” The EEOC is especially concerned that most sexual harassment  prevention training focuses only on defining harassment and telling employees what they are prohibited legally from doing.

Instead, the EEOC is encouraging (read: requiring) businesses to also include workplace civility training and bystander intervention training. If a disgruntled employee makes an illegal harassment claim against your business in the future, the EEOC, as the investigating agency, is going to immediately require your business to provide evidence that you thoroughly trained your employees on these new topics. If the harassment complaint goes to trial, this training will also be your best defense.

Bystander Intervention Training is defined by the EEOC report as training that helps employees identify unwelcome and offensive behavior and creates collective responsibility to step in and take action when they see other employees exhibit problematic behaviors. The training is geared towards empowering employees to intervene when they see unacceptable conduct and gives them resources to do so.

Workplace civility training focuses on teaching employees to abide by reasonable expectations of respect and cooperation in the workplace. The emphasis is supposed to be positive—what the employees should do—rather than those things they are prohibited from doing. The training needs to include navigation of interpersonal relationships, an understanding of conflict resolution and teaching supervisors how to be civility coaches. In other words, it is now the company’s responsibility to teach workers how to be responsible, respectful professionals. On the job training and supervisor modeling is fine, but you need to add formal in-house training also.

Interestingly, at the same time that the EEOC is “encouraging” employers to promote more civility in the workplace and to prevent bullying and harassment, the National Labor Relations Board is issuing decisions that punish non-unionized businesses for written policies requiring employees to be respectful to coworkers.

The NRLB has repeatedly found that a company is infringing on an employee’s labor rights when the employer enforces handbook policies like this one from T-Mobile’s employee manual: “Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with clients, co-workers and management.” The NRLB thinks that kind of policy has a chilling effect on employees who have a right to discuss with coworkers all of the terms and conditions of their employment. I’ve alerted you about the NRLB’s crusade against policy manuals before.

So you as an employer are left with trying to decide whether to be investigated and sued by the NLRB or the EEOC. Continue reading Sexual Harassment Prevention Training Essential

Employers Responsible for Preventing Illegal Immigration

In all of the talk about immigration in this election year, it is important for businesses to understand that the responsibility for preventing illegal immigration generally rests on employers, who must verify that all new hires are eligible to work in this country.

Under the Immigration Reform and Control Act (IRCA), employers are mandated to verify an employee’s identity and eligibility to work in the United States by completing an Employment Eligibility Verification, more commonly known as a Form I-9.

The current version of the I-9 (available here) says on the form that it expired on March 31, 2016, but it is still in effect three months later because a newer version has not been released.

Every employer, regardless of the size of the business, must present the latest version of the Form I-9 to each prospective employee and confirm that employee completes and signs the employee section of the form.  The employer is required to inspect the employee’s supporting documents and have an authorized individual from the Company sign the employer section of the I-9.  All of these items must be completed within three (3) business days of the employee’s hire date.

An employer’s failure to properly complete the Form I-9 can bring about costly fines by the U.S. Immigration and Customs Enforcement (ICE).  As recently as April 2016, a judge ruled that Golden Employment Company in Minnesota was liable for failure to timely present I-9 forms for at least 125 employees as well as not preparing forms in any capacity for almost 236 workers.  The employer also inaccurately completed some of the I-9s.  The civil penalties totaled $209,600.

Most ICE inspections result from complaints from current employees, former employees, labor unions and even competitors. However, random inspections are also undertaken by ICE.  It’s important to make sure all of your work eligibility records are up-to-date and properly completed.

What can you do to avoid penalties and ensure I-9 compliance? Continue reading Employers Responsible for Preventing Illegal Immigration

Overtime Change: Local Businesses Should Start Planning Now

Vicki Wilmarth was quoted extensively about the new Department of Labor overtime rule in today’s lead story in the Amarillo Globe-News.

Vicki Wilmarth, an employment law lawyer in Amarillo, said that employers now have two options: Pay the employee the minimum salary of $47,476 or start paying that employee by the hour.

Click here to read the rest of the Globe-News story.

New Overtime Rule Changes Salary Basis Requirement

Do you pay any employee on a salary basis instead of paying them hourly and overtime? Of course you do, so you need to be very aware of the new final overtime rule issued by the U.S. Department of Labor on May 17, 2016.

You must pay your salaried employees at least $913 per week ($47,476 per year) beginning December 1, 2016, or you will be in violation of the Fair Labor Standards Act (which you do not want to violate).

In the past, salaried employees had to be paid $455 per week ($23,660 per year) to qualify as an employee exempt from the FLSA’s requirement of paying overtime for every hour over 40 worked in any one workweek. That salary basis has doubled under the new regulations.

In addition to meeting this increased salary level, the salaried employee must perform the duties of an exempt employee (the white collar exemptions: executive, a professional or an administrator). These duties tests are much more difficult to meet than most people think, so don’t just assume that your salaried employees are actually exempt. For example, not every “manager” is an “executive exempt employee”, who under the FLSA must have the power to hire and fire and must supervise at least 2 full-time employees, as well as being in charge of a recognizable store, division or branch of your business.

This increase in the threshold salary required to consider an employee exempt could change the classification of many Panhandle-area retail managers and assistant managers, human resources directors, marketing professionals, bookkeeping employees, project managers, foremen, performers, and other employees who have not been earning overtime in the past.

Now those exempt employees will either get a raise to get them over the $913 per week threshold or they will have to be changed to nonexempt, hourly employees who earn overtime. Either way, it could mean an overall increase for the employee and higher payroll costs for the employer.   Continue reading New Overtime Rule Changes Salary Basis Requirement

Cussing Out the CEO

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What is the proper response from the company when two employees express their anger at the CEO when they receive bonus checks by returning the checks, voiding them, and writing, “kiss my a– Bob,” and “eat sh– Bob” on the checks? According to the National Labor Relations Board, firing them is improper.

After returning the checks, the employees posted pictures of the checks on a private Facebook page.  Other employees followed suit by also voiding their checks and posting them to the Facebook page.  However, only the first two employees wrote profanities on their checks.  Not very long following this incident, both employees were fired.  They filed grievances shortly thereafter with the NLRB.

The NLRB reinstated the employment of the two West Virginia coal miners.  After their union voted against bonuses based on productivity, the coal mine management decided to implement the bonus program anyway.  Apparently the two miners were unimpressed with the company’s generosity.

The NLRB judge who presided over the case found that the two miners had been wrongly discharged and that the words on the checks, “while profane and offensive, were nevertheless expressions of protest and outrage over what those employees viewed as implementation of a plan that would adversely affect their safety conditions and which constituted what the employees believed was a surprising violation of the terms of the collective-bargaining agreement.” Continue reading Cussing Out the CEO

Ban the Felony Box on Applications

If your employment application asks whether the applicant has ever been convicted of a felony, you may need to consider whether to “ban-the-box” that asks that question of your applicants. Why? Because nationally, over 100 cities and counties and over 185 million people live in a ban-the-box or fair-chance jurisdiction.  In addition, the Equal Employment Opportunity Commission is gunning for employers who exclude everyone with a criminal history from employment.

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The “ban the box” movement seeks to have employers consider an individual candidate’s job qualifications while prohibiting the employers from taking into account a candidate’s criminal history in the beginning of the application process.  Ban-the-box aims to provide applicants with a “fair chance” at employment by delaying any consideration of criminal history until a preliminary job offer is made.

Austin is the first city in Texas to “ban the box,” but it is likely that more areas of the Lone Star State will follow in the near future.  As of March 24, 2016, Austin passed the Fair Chance Hiring Ordinance, which prohibits employers from asking about or taking under consideration the criminal history of an individual until after making a conditional employment offer. While this ordinance does not cover state agencies or federal employment, it does apply to any private organization with 15 employees or more in the Austin city limits.

So Texas Panhandle employers don’t have to comply with the Austin ordinance if they have no employees in Austin, but they do need to worry about the EEOC claiming that a local employer discriminates in their hiring on the basis of race or ethnicity (it is the official position of the EEOC that “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions”).

So the wise employer will go ahead and take the “ever been convicted of a felony” question off of the application for employment. In addition, for both prudence and economic reasons (detailed criminal background checks aren’t cheap), smart employers will wait until they actually make a conditional job offer before checking the criminal record of a potential employee.

In addition, an employer should not: Continue reading Ban the Felony Box on Applications

Preventing Workplace Violence

Do you as an employer have a plan to address workplace violence?  This topic is front and center in the wake of the recent workplace shootings in Hesston, KS, Kalamazoo, MI, and Roanoke, VA.  Although legislation has been introduced to provide a “safe harbor” for employees and employers to report violent or threatening behavior, it is important for employers to assess their own workplaces and look at what can be done to make that environment as safe as possible.

The House of Representatives introduced the “Safe Harbor for Reporting Violent Behavior Act” on February 11, 2016, in response to the on-air shooting of a television reporter and cameraman in Roanoke, VA.  This bill would provide immunity from lawsuits to individuals who, in good faith, make a report about an employee (or potential employee) who exhibits violent or threatening behavior.

However, regardless of whether or not this bill passes, employers still have a duty to examine their workplace violence policies and take steps to decrease any possible dangers in the workplace.  Several things that should be done include: Continue reading Preventing Workplace Violence

Employers Must Pay for “Unauthorized Overtime”

I see many employee policy manuals that prohibit “unauthorized overtime”, but employers must still pay an employee his overtime pay, whether the time worked was authorized or not.

Employers need to understand that all governmental enforcement agencies, such as the Texas Workforce Commission (“TWC”) and the U.S. Department of Labor (“DOL”), treat paychecks as sacred and not subject to any reduction or withholding because of a disciplinary reason.

Unauthorized overtime can result in disciplinary action, like a written warning, a suspension or a firing, but not docking of a paycheck or any refusal to pay.

The TWC explains it this way in their publication “Especially for Texas Employers”:

Many employers feel that such [overtime] should not be payable as long as the employer has not authorized the extra work, but the DOL’s position on that is that it is up to the employer to control such extra work by using its right to schedule employees and to use the disciplinary process to respond to employees who violate the schedule.

Just saying in your employee handbook that an employee cannot work overtime without prior authorization is not sufficient. You as an employer need to take steps to closely monitor (and pay for) all hours actually worked. Continue reading Employers Must Pay for “Unauthorized Overtime”

Paying Employees on Salary Soon to Get Expensive

In July 2016, in all likelihood you as an employer will have to start paying your employees more than $50,000 per year if you want to pay them on salary.  If an employee makes less than $50,440 per year, by this summer that employee will need to be paid on an hourly basis and receive overtime whenever the employee works more than 40 hours in any one workweek.

The new regulations proposed by the Department of Labor last summer to increase the required salary basis under the Fair Labor Standards Act are expected to be finalized in July 2016, according to a statement made by the Solicitor of Labor to the New York State Bar Association.

Currently, an exempt “white-collar” employee who can legally be paid on salary only has to make $23,660 per year ($455 per week) and meet the specific duties of a professional, an administrator, a computer professional or an executive. This summer that number is widely expected to increase to $50,440 ($970 per week) and will be tied to an inflation formula that will raise that threshold number annually.

Once the final rule is released in the summer of 2016, employers could have as few as Continue reading Paying Employees on Salary Soon to Get Expensive