FSB FYI
Employment Law
Group
Legal Alert
2012: “Before anything else, preparation is the
key to success.” Alexander Graham Bell
What Employers Must Have on Their “To Do” List
for the New Year
1. Make Effective Harassment-Prevention Training for Employees A Top Priority. In 2011, discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) -- the federal agency that enforces the federal laws
prohibiting certain kinds of workplace discrimination -- hit a new record high.
According to the EEOC’s annual Performance and Accountability Report, released Nov. 15, 2011, the EEOC received 99,947 charges of employment discrimination in fiscal year 2011, the highest number of EEOC charges filed in a single year since the EEOC’s founding 46 years ago. The agency also obtained $364.6
million in back pay and penalties for workplace discrimination complainants.
One way to minimize discrimination claims is to implement annual training on preventing workplace discrimination and harassment for managers/employees.
Training reinforces your organization’s written anti-discrimination/harassment
policies and complaint procedures. In fact, having an effective harassment-prevention policy and complaint procedure may provide a legal defense to an employer later charged with a hostile work environment harassment claim. Make
training a top priority for your organization in 2012.
2. Review Your Organization’s Employee Policies
and Handbook
to ensure they are narrowly tailored to accomplish your organization’s goals
and to ensure they reflect recent legal developments.
3. Keep Workplace Law Postings Current. Effective
April 30, 2012, private-sector employers covered by the NLRA’s jurisdiction
must inform their workers in a
written 11 x 17- inch notice of workers’ right to organize (i.e., join a union), pursuant to a final
rule recently established by the NLRB. The
effective date of this employee rights notice-posting rule has now been
postponed twice, following litigation against the NLRB regarding the legality
of the NLRB’s edict. The required
notice, which must be posted in the same place as all conspicuous and other
worker postings at your worksite, is available at http://www.nlrb.gov/poster. With respect to other federal, state and
local laws that must, by law, be posted at your workplace in a visible
location, be sure to maintain current postings.
4. Ensure
Your Organization Is Properly Classifying Independent Contractors and
Exempt/Nonexempt Employees. In 2010
alone, the New York State Department of Labor (NYSDOL) returned $26.6 million
in unpaid wages to New York workers.
That same year, New York’s joint task force on employee
misclassification identified 18,500 instances of employee misclassification,
discovered more than $314 million in unreported wages, assessed over $10.5
million in unemployment taxes, over $2 million in unpaid wages and over
$800,000 in workers’ compensation fines and penalties. In 2011, the NYSDOL obtained a $5.1 million
settlement with the sandwich chain Lenny’s in New York City for minimum wage
and overtime pay violations.
Do
not assume that the worker classified as an “independent contractor” is indeed
an independent contractor simply because you have a written agreement saying
so; that individual may be your employee.
Do
not assume that your organization’s salaried employees are exempt from overtime
pay laws merely because they are paid on a salary basis rather than on an
hourly basis; that may not be the case.
Instead, carefully review with your legal counsel whether your
organization has properly classified workers as exempt or non-exempt from
overtime pay laws and/or whether independent contractors are, in fact,
employees.
The
U.S. Department of Labor (DOL), the IRS, and the NYSDOL all have been zealous in their
pursuit of misclassifications of employees as independent contractors, and are
conducting audits like never before in their quest for additional revenue. The federal and state Departments of Labor also
are investigating whether workers are properly classified as exempt or
non-exempt from overtime pay laws. New York
employers may be subject to hefty damages, penalties and fines for failure to
pay unemployment insurance taxes, failure to maintain workers’ compensation and
disability insurance coverage for their employees, and failure to pay overtime
pay to employees who should have been properly classified as non-exempt, rather
than exempt, employees.
Be
proactive now in reviewing your worker classifications rather than reactive
when the DOL comes to audit your pay practices.
5. Ensure
Legal Compliance with Other Wage/Hour Issues. New York employers must be careful not to
take improper deductions from wages like deductions for employee loss or damage
of company equipment, recovery of inadvertent overpayment of wages, vacation
and other advances, loans or other obligations to them. Employers must also ensure proper payment of
wages to nonexempt employees for all hours worked, includes those hours worked
remotely by email, Blackberry, Smartphone, or other mobile device.
If
your organization destroyed the exempt status of an employee by making
impermissible, inadvertent deductions from an employee’s salary, you should
consider maintaining a written “safe harbor” policy to help reduce potential
liability. In order to invoke a “safe
harbor” policy, an employer must have a written policy prohibiting improper
deductions and must have “clearly communicated” that policy to its employees; it
must have established a complaint mechanism for employees who believe their
wages have been improperly deducted; it must reimburse employees for any
improper deductions; and it must make a good-faith commitment to comply in the
future.
6. Make Sure Job Requirements Are
Necessary and Job-Related. In a recent
“informal discussion letter,” the EEOC said an employer’s job requirement of a
high school diploma may violate the Americans with Disabilities Act (ADA) if it
screens out an otherwise qualified candidate who did not graduate from high
school because of a learning disability that meets the definition of a
disability under the ADA. The EEOC
further stated that a high school diploma requirement-- long a standard
criterion for screening potential employees-- must be “job-related for the
position in question and consistent with business necessity.” The EEOC has recently been targeting and
suing employers for alleged disability discrimination. Be sure any job requirements are truly
necessary and job-related to minimize the potential for scrutiny by the EEOC.
7. Be Prepared for Increased OSHA Audits
and Inspections and Implement A Workplace
Violence Prevention Plan. OSHA--the federal
agency charged with enforcement of workplace health and safety laws-- has hired more inspectors and anticipates
conducting more inspections this year so be prepared in the event of an audit. New York employers have already been targeted
by OSHA this year. On January 6,
2012, OSHA announced its proposal of a $90,040 fine against a New York
manufacturer for repeat and serious safety hazards, including inadequate
employee training.
·
Smaller Businesses Targeted. Additionally, OSHA’s Site
Specific Targeting (SST) Program for 2012 will be focusing its inspections on
non-construction businesses with 20 or more employees that report high injury
rates instead of businesses with at least 40 employees as in the past, which
means that more small businesses than ever before will be targeted by OSHA.
·
OSHA Issues
Directive on Workplace Violence. On September 8, 2011, for the first
time, OSHA issued a Compliance Directive entitled “Enforcement Procedures for
Investigating or Inspecting Incidents of Workplace Violence.” The directive
establishes uniform procedures for OSHA field staff to respond to workplace
violence incidents and complaints and conduct inspections in industries
considered especially susceptible to workplace violence, such as healthcare,
social service settings, and late-night retail establishments.
Employers
may face fines from OSHA for failure to maintain a safe workplace for their
workers including inadequate safeguards to provide a “safe and healthful
workplace,” separate and apart from
legal liability employers may face for a worker’s compensation claim by an
employee or a third-party negligence or assault claim arising out of a
workplace violence incident (or a claim of negligent hiring or negligent
retention of a dangerous employee in jurisdictions other than New York that
permit such claims).
Do
you have effective policies, processes, and protocols to help identify and
prevent threatening behavior and workplace violence, and to address and resolve
threats and violence that may have occurred? Who have you designated to handle
prevention, investigation, incident management and resolution efforts?
·
OSHA on the lookout for employee misclassification. As noted above, the
DOL is increasing efforts to identify misclassification of employees as
independent contractors, and this effort now includes training OSHA inspectors to
recognize where misclassification is occurring and to refer such situations to
the proper DOL division for enforcement.
Ensure
your organization has a written workplace violence prevention plan and is
compliant with OSHA’s legal requirements before OSHA comes knocking at your door.
8. March 15, 2012 Compliance Deadline for Places
of Public Accommodation under the
ADA. March 15, 2012 is the deadline
set by the U.S. Department of Justice (DOJ) for compliance with the new
Americans with Disabilities Act (ADA) Title III Regulations that create a new
level of accessibility standards. The new ADA regulations adopt the 2010 ADA
Standards for Accessible Design, which, according to the DOJ, have been updated
to be “more user-friendly for building code officials, builders, and
architects, and have been harmonized with state and local accessibility codes.” The 2010 standards also include, for the
first time, standards on making swimming pools, parks, golf courses, boating
facilities, exercise clubs, and other recreation facilities accessible for
individuals with disabilities.
On
or after March 15, 2012, all newly constructed or altered facilities must
comply with all of the requirements in the 2010 Standards for new construction,
alterations, program accessibility, and barrier removal. If elements in existing facilities already
comply with corresponding elements in the 1991 Standards (the Standards issued
before the 2010 Standards) and are not being altered, then entities are not
required to make changes to those elements to bring them into compliance with
the 2010 Standards.
March
15, 2012 also is the compliance date for provisions governing hotel reservation
policies. For example, on or after March 15, 2012,
reservations staff (of a hotel or a third party) will be required to identify
accessible features in guest rooms (e.g.
guest room door widths and availability of roll-in showers) and other hotel
amenities in sufficient detail so that an individual with a disability can make
an independent assessment whether the hotel meets his or her accessibility
needs. For more information, see www.ada.gov.
Title
III of the Americans with Disabilities Act (ADA) prohibits discrimination on
the basis of disability by public accommodations. It requires places of “public accommodations”
to accommodate disabled patrons, customers and members of the public to ensure
that they can equally access and enjoy the goods and services offered by public
accommodations just as non-disabled individuals do. To that end, the ADA requires
places of public accommodation and commercial facilities to be designed,
constructed, and altered in compliance with certain accessibility standards.
Places
of public accommodation are facilities that are open to the public, including,
but not limited to, restaurants, hotels, shopping malls, retail stores, theaters,
convention centers, dry cleaners, laundromats, pharmacies, doctors’ offices,
hospitals, museums, libraries, parks, zoos, amusement parks, private schools,
day care centers, recreation facilities, swimming pools, health spas and
bowling alleys.
Conclusion
Be
prepared. Don’t be caught unawares by
employment litigation or government investigations/audits of your workplace
practices. Dig into the necessary projects now to be fully employment-law-compliant in 2012. Employers should consult with their labor and employment counsel to head off any potential problems. Maintaining, reviewing and implementing a complete checklist of all of the areas in which you need to be compliant with employment laws is one way to ensure that you start off the New Year headed in the right direction.
Lisa M. Brauner, Esq., Brauner@fsblegal.com, 212.580.5279 or
347.695.0025. http://www.fsblegal.com/Details/Brauner-Lisa-M.html.
