Supplemental materials for LEAP 2025 session Staying Ahead of Immigration Audits and Investigations
Download How to Manage I-9 Compliance.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Avoiding Costly Misclassification Mistakes: Employee vs. Independent Contractor
Download Making the Classification Call: Employee or Independent Contractor?
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Avoiding Costly Misclassification Mistakes: Employee vs. Independent Contractor
The Department of Labor has read the fine print for you on employment contracts, and it doesn’t like what it’s seeing. It’s identified seven fine-print provisions in employment contracts that it believes violate the Fair Labor Standards Act and the Occupational Safety and Health Act. Would your employment contracts and job applications stand up to a DOL investigation?
1. Contract provisions requiring employees to waive statutory protections
The FLSA is remedial legislation, which means employees can’t waive away their rights. The DOL has observed the following:
2. Contract provisions requiring employees to agree they are independent contractors
Employees can’t agree to be called independent contractors, even if they want to. Whether a worker is an employee or an independent contractor is based on whether you have a right to control their wages and working conditions. Actual control isn’t necessary.
In January, the DOL released final worker status regulations. And there are Memorandums of Understanding all over the place entitling other federal agencies to tip off the DOL to any questionable employment practices they happen upon. The IRS will be equally unamused if it sees contract provisions calling workers independent contractors.
3. Indemnification-type provisions and related counterclaims
It’s a neat trick, but no, you can’t make employees reimburse you for your FLSA violations. Indemnification includes offsetting damages against employees’ pay.
4. “Loser pays” provisions
Here’s how the FLSA is structured:
Contract provisions altering this statutory arrangement are void.
5. Stay-or-pay provisions
The DOL never hinted it was interested in stay-or-pay provisions, unlike the CFPB and the NLRB. But it is now, and the FLSA contains an interesting twist: You can’t require employees to kick back wages when the kickbacks would bring their pay to below the minimum wage or cut into their overtime pay. Rather, the FLSA requires wages to be paid free and clear.
6. Confidentiality, nondisclosure and nondisparagement provisions
You can insist on some decorum during working hours, but on their own time, employees can say mean things about you on social media or face-to-face among friends or even potential employees, and there isn’t much you can do about it. In addition, employees don’t need your permission to speak to a government investigator before speaking to you or never speaking to you.
7. Company policies requiring employees to report safety concerns to you before contacting the authorities
You can’t retaliate against employees for reporting safety concerns or other violations to OSHA before reporting them to you.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Avoiding Costly Misclassification Mistakes: Employee vs. Independent Contractor
One benefit of engaging independent contractors to perform work is that contractors don’t count as employees for purposes of complying with laws such as Title VII of the Civil Rights Act. But, just calling someone an independent contractor doesn’t necessarily mean she is one. She might really be an employee.
Recent case: Melanie worked for a health-care service that operated out of the married owners’ home. She complained to the wife that the husband created a sexually hostile work environment by watching pornography during her office shifts. After her third complaint, Melanie was fired. She sued, alleging sexual harassment.
The owners asked the court to toss out the case because they didn’t have 15 employees—the minimum required for Title VII to apply. They claimed all 50 of their staff members were independent contractors, so they weren’t covered.
The 5th Circuit rejected their claim after analyzing whether the workers were employees or contractors. Factors the court considered were that the owners could hire and fire the workers and set their work schedules. They controlled the details of the work was to be performed. The workers underwent orientation and had to pass a test on company policies. They received annual reviews. The workers signed contracts acknowledging that they were independent contractors, but the court said that was irrelevant.
It declared them employees, putting the company over the 15-employee count required to comply with Title VII. (Mason, et al., v. Helping Our Seniors, WD TX, 2023)
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Protecting Your Business Interest When Employer Agreements Are Under Attack
Download 17 Ways to Protect Company Trade Secrets.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Power of the NLRB: Protected Concerted Activities, Handbooks and Organizing
Download The National Labor Relations Act, Concerted Activity and Your Handbook.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Power of the NLRB: Protected Concerted Activities, Handbooks and Organizing
Observant HR pros understand there may have once been aspects of an employee’s working life that didn’t have to be directly addressed in a handbook right away—issues covered by informal interactions, common sense and the understanding that HR would eventually “catch up” to big new developments in the legal landscape.
There’s no room for error now. In an ever more litigious society that expects immediate reaction and response, your workers are applying that same standard to your policies. Tomorrow morning’s headlines on CNN could mean employees perceive their rights differently than the day before.
How many of the following aspects of an effective employee handbook are unfortunately on your list of “to-dos,” and represent dangerous omissions that could catch you off guard? Attorney Anniken Davenport recommends you update your handbook immediately if you lack:
What new job applicant to any white collar position isn’t thinking, “I wonder if I can eventually do two days per week from the basement?” Everywhere they look, they have friends and relatives claiming success with working remotely; sooner or later they’re going to ask, “Why not me?” While making no promises, your handbook needs to lay out who can telecommute and when.
Make sure your employees understand what to do if they wake up tomorrow to inclement weather or chaos of a totally different kind. Pay special attention to your expectations for swift communication both ways.
This law applies to nonexempt workers covered by the FLSA, and extends for a full year after a child’s birth. State laws may extend that coverage. The space provided by the employer cannot be a bathroom and it must be shielded from view and free from intrusion by co-workers or the public.
The best companies and HR departments don’t always wait for a court case to review their handbook. You can’t afford to be late when public opinion shifts dramatically against policies that can swiftly be deemed archaic and insensitive, especially with employee activism on the rise.
Go through your handbook for the specific reason of determining whether your organization has become tone-deaf to the trends and movements that are reshaping employee expectations—even if you haven’t come under direct pressure to bend to them yet. The pressure is likely coming.
It’s essential that private employers monitor the NLRB’s direction in order to keep your handbook current. Some examples of their recent attitude shifts:
“They don’t like blanket rules that say employees can’t be ‘disrespectful’,” Davenport informed her audience. This is because employees could construe such rules as banning protected criticism or protests against their treatment on the job.
“They don’t like rules that say ‘absolutely no cameras or recording in the workplace.’” You must able to argue that the negative effect on workplace safety or confidentiality outweighs employees’ rights to engage in activity protected by the National Labor Relations Act. Again, you must be aware of the possibility of a complaint by someone alleging you’re stifling the documentation of working conditions.
“They don’t like rules attempting to prevent people from talking about an investigation or a complaint that was filed.” As evidenced by the #MeToo movement, which brought so much publicity to the awareness of sexual harassment, it’s difficult to keep workers from discussing and debating issues that can even ensnare your own office.
In general, any policy attempting to require confidentiality during an investigation will only be seen as lawful during the limited span of that open investigation. You can only require confidentiality from its direct participants—employees who talk about the incidents that led up to it should not be punished.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Power of the NLRB: Protected Concerted Activities, Handbooks and Organizing
A good employee handbook is one of your most important tools for avoiding workplace disputes and staying out of court. However, a poorly drafted handbook is worse than having no handbook at all.
Use the following questions to analyze the thoroughness and reliability of your employee handbook:
□ 1. Does your handbook clearly state that it is not to be considered a contract in any way and that you reserve the right to change it?
□ 2. If your handbook lists offenses warranting discipline, including discharge, does it make clear that those listed are merely illustrative rather than exhaustive?
□ 3. Does your handbook encourage employees to bring their complaints to their union or to management?
□ 4. Does your handbook make clear that you don’t tolerate any type of harassment?
□ 5. Does it provide procedures for addressing harassment complaints?
□ 6. Do the benefits policies contained in the handbook comply with federal and state laws?
□ 7. Do all employees receive copies of the handbook after each revision?
□ 8. Do you have a receipt form that employees sign when they receive the handbook or any revisions of it?
□ 9. Is your handbook up to date in all areas?
□ 10. Does your attorney review your handbook regularly to see that it contains nothing in conflict with federal and state laws or local regulations?
□ 11. Is it written clearly and simply?
□ 12. Is the language respectful of employees?
□ 13. Are the rules described in the handbook enforced in an even-handed manner?
□ 14. Do you make sure that your employees read the handbook?
□ 15. Is it free of political statements, including the company’s opinions regarding labor organizing?
If you answered “No” to any of these questions, you should review your company policies and the way they are communicated to your workforce.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session OSHA Compliance: Employer Responsibilities for Workplace Safety
Download Checklist: Complying with OSHA.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session OSHA Compliance: Employer Responsibilities for Workplace Safety
OSHA’s recently issued final rule on who may represent employees during safety and health inspections has employers worried. As a practical matter, the “walkaround rule”—which took effect May 31—means employers have little opportunity to object to third parties who employees choose to accompany OSHA inspectors as they check for unsafe working conditions or practices.
The rule lets employees designate someone to walk the workplace with inspectors—and that person doesn’t need to be an employee.
According to the rule, employee representatives could be anyone who, in the judgment of the OSHA inspector, is “reasonably necessary to aid in the inspection.” The rule says those third-party representatives “may be reasonably necessary because of their relevant knowledge, skills or experience with hazards or conditions in the workplace or similar workplaces.”
Employers fear that could literally open the door for union organizers or union-paid industrial hygienists to trail along behind inspectors, possibly influencing their findings or gathering information that could influence collective bargaining.
The walkaround rule provides that:
Fortunately, employers do have some say in the selection of third-party representatives. For example, they can object to outside employee representatives entering certain restricted areas if employers are concerned that trade secrets might be revealed or that classified materials might be exposed.
Employers can also prohibit third-party reps from taking photos and videos, making measurements, collecting samples and so forth. Employers can insist that the individual be adequately clothed in appropriate safety gear.
Perhaps most significantly, employers do not have to allow the third-party representative to discuss anything unrelated to the safety and health inspection—such as the benefits of belonging to a union.
Final note: Remember, the walkaround rule stipulates that the role of third-party employee representatives is to assist the OSHA inspector in doing their job, not to conduct their own independent inspection.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
