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In our last blog post, we challenged employers to resolve to improve their workplace documentation practices in 2013. This post is the first in a promised series of practical tips for achieving your resolution.

How many times have you heard the phrase: “If it’s not in writing, it didn’t happen.”? That saying has special meaning in the workplace context. Judges, jurors, arbitrators, EEOC investigators, unemployment referees, employees, and last, but not least, ME as the attorney retained to defend your company, expect employers to keep good records, and to be able to produce them when a question arises about a workplace complaint, incident, or employment decision.

Documentation comes in many configurations. Employers can document through formal reports, printed forms, memoranda, performance evaluations, disciplinary memos, phone notes, day planners, post-its, and even on the back of cocktail napkins. In future blogs, we will discuss how, when, and where to document or record workplace events, observations, communications, but first things first: WHAT SHOULD BE DOCUMENTED?

Here is a list of the many “documentation worthy” workplace activities.

  • Recruiting materials and employment applications. (Necessary to establish compliance with Title VII, ADA, ADEA, OFCCP, Affirmative Action Regulations, and many other laws recognized by their acronyms.)
  • New hire information. (Critical to demonstrate terms of employment and compliance with federal and state laws. Includes employment application and references, criminal background check, required certifications and licenses, drug tests results, driver’s license checks, I-9s, etc.)
  • Payroll.  (Required by law and must be retained under the IRC, EPA, FMLA, FLSA.)
  • Performance evaluations. (Essential to ensure clear communication of employer’s expectations, support employment decisions, track progress, correct deficiencies and defend lawsuits.)
  • Misconduct and discipline. (Important to address employee behavior and violation of workplace rules and standards of conduct, establish patterns of behavior and administer progressive discipline in a fair and consistent manner.)
  • Employee incidents, complaints, and investigations. (Necessary to establish a precise accounting of events that are critical to legal disputes and to promote better decision making.)
  • Leaves of absence. (Key to calculating, tracking, and coordinating leaves of absence under FMLA, workers’ compensation ADA, USERRA, Florida domestic violence leave law, and voluntary employer policies.)
  •  Absenteeism and tardiness. (Necessary to track hours of non-exempt employees and to ensure the fair and consistent administration of employer’s absenteeism policy.)
  • Accommodations. (Convenient to demonstrate employer’s participation in the required interactive process of accommodating disability, religious practices, etc.)
  • Employee acknowledgments. (Valuable to prove that employee attended training sessions and received policies, write-ups, performance evaluations, and required notifications.)

While this list is not exhaustive, it gives you an idea of the diverse workplace activities that should be documented and why proper documentation is important.

Next post in this workplace documentation practices series: How to document? Carefully.

We are so excited to announce that registration for the 2013 HR Law & Solutions seminar is now open!  The seminar is set for March 19, 2013, at the Sanibel Harbour Resort & Spa.  Topics and speakers include:

 

Though we know we have a tall order to surpass last year’s 20th Anniversary HR Law & Solutions, we have a great line up and, of course, a few fun surprises as well.  Last year was a record-breaking year with over 300 attendees — we hope you all will help us exceed that this year!  Click here to download the brochure.  Click here to register.  Looking forward to seeing you soon!

 

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Yesterday, the Equal Employment Opportunity Commission announced it received 99,412 private sector workplace discrimination charges during the 2012 fiscal year.  In its  press release , the EEOC noted that while the number of charges is down slightly from last year, it recovered $365.4 million dollars for employees, the “largest amount of monetary recovery” through its administrative process.

(Side note:  We’re not sure how that’s the “largest” recovery, if EEOC recovered $404 million in 2010, but then again we’re no math major….).

For the third year in a row, retaliation claims were the most frequently filed claim (38.1%), followed by race (33.7%), sex (30.5%), and disability (26.5%).  There was a jump in sex and disability claims over last year.

A stat we found particularly interesting is that although the EEOC reduced the pending inventory of charges by 10% from the 2011 fiscal year, it still has over 70,000 cases in queue.  So, for those of you who feel like you’ve been waiting for-ev-er for a determination, don’t worry — you’re clearly not alone!

What does this mean for employers?  Be extra extra careful not to take any action that remotely resembles retaliation!  We know we say this every chance we get, but it’s SO important, and these statistics prove it.  Remember, even if the employee does not have a valid underlying claim, he/she can have a valid retaliation claim if you take adverse action after you learn of the employee’s discrimination or harassment complaint. Don’t be a statistic!

 

So…we never thought we would see the day when we’d blog about Justin Bieber, but when we read he was being sued by his bodyguard for over $400,000 in unpaid wages and assault, we couldn’t resist.  That’s right, not only did the Biebs** allegedly fail to pay his bodyguard overtime, the 5’7″ teen idol also allegedly roughed up his bodyguard during a confrontation last fall.

The bodyguard alleges he was mistakenly told he wasn’t entitled to receive overtime despite working 14 to 18 hour days for about a year and a half.  That’s a lot of time protecting Bieber from the throngs of screaming fans and crazed paparazzi.  In addition to unpaid overtime, the bodyguard also claims he’s owed vacation and other wage benefits, for a grand total of $421,261.

Our first thought (after laughing about the thought of JB assaulting a bodyguard) was that none of the typical FLSA exemptions would apply to a bodyguard.  Then we thought more about coverage, etc., and decided it wasn’t quite that clear cut.  Does the bodyguard have a valid claim?  Let’s take a look at the Biebs’ legal woes.

Continue Reading As Long As You PAY Me: Justin Bieber Sued for Unpaid Wages

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Our #1 recommended resolution for employer clients in 2013? Improve your workplace documentation practices. Why? Because we like to win cases for clients, and most employment lawsuits are often won or lost based on the presence, quality, and accuracy of an employer’s documentation.

Experts tell us that understanding the benefits of your New Year’s resolution will help you keep it. So, here are five important reasons why proper documentation will improve your workplace and increase our chance of winning your employment lawsuit:

  • Proper documentation demonstrates an employer’s compliance with federal, state, and local laws.
  • Proper documentation leads to better and more objective decision-making.
  • Proper documentation lends credence to an employer’s explanation of the legitimate business reasons underlying its employment actions.
  • Proper documentation provides evidence that similarly situated employees were treated the same.
  • Proper documentation helps witnesses remember key events.

Announcing your New Year’s resolution also increases the likelihood you will keep it. For our part, we promise to help you improve your workplace documentation practices in 2013 by providing you with specific tips and strategies in future blog posts. To put it in legal terms:

WHEREAS, proper workplace documentation is critical to minimizing employment disputes and improving an employer’s position in litigation. NOW THEREFORE, BE IT RESOLVED that the aforesaid employer/reader and the undersigned attorney/writer will work together to improve workplace documentation practices in 2013.

We will keep our resolution for 2013. Will you?

Next post: What to document? Almost everything.

 

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Happy New Year! We hope you all enjoyed the holidays. 2013 didn’t start off slowly, that’s for sure — fiscal cliff anyone? As we’re sure you all know, late last night Congress passed the American Taxpayer Relief Act, designed to avoid the dreaded fiscal cliff. What does this mean for employers? In short, lots of payroll updates and tax issues!

You may or may not be the biggest fan of anything math or numbers related, and may defer any tax issues to our corporate/tax attorneys, however, we did run across a couple of great articles on the payroll/tax issues, and we thought we’d share them with our readers.

First, Forbes published 4 Important 2013 Payroll Updates & Tax Changes for Small Business. It explains important changes with federal income withholding tax, social security, and Medicare that must be dealt with ASAP in payroll. Click here for the article.

Next, local CPA firm Markham Norton Mosteller Wright & Company (a new HR Law & Solutions sponsor!) posted a very detailed update on its blog today. Though much of the post is geared towards individual tax provisions, it addresses many of the business provisions as well. Click here for the post.

If you have specific tax questions, please let us know, and we can put you in touch with one of our corporate/tax attorneys.  In addition to the tax/payroll updates, remember the minimum wage in Florida went up on January 1.  Make sure you’ve adjusted payroll accordingly, and posted the updated notices. Check out our prior post (click here) for more information.

Best wishes to all of you for a healthy, prosperous 2013!

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U.S. Citizenship and Immigration Services (USCIS) launched a new E-Verify Employers Search Tool that provides web based users with an interface to view profiles of employers that actively use the E-Verify program. It replaces the lists of E-Verify employers and federal contractors which previously appeared on the E‑Verify Website. The search tool only includes those employers and federal contractors that are currently enrolled in E‑Verify and who have self-reported that their company has five or more employees. It is current as of December 15, 2012, and will be updated on a quarterly basis. Employers that terminate their E-Verify accounts will be subsequently removed from the search tool. The search tool contains the following information:

  • Business name: the name used during registration with E-Verify, which can be the legal name of the business or individual, a trade name, or abbreviation);
  • Whether it has a Federal Contractor Identifier;
  • Type of Federal Contractor Employee verification: whether all new hires or entire workforce;
  • Employer city, state and ZIP code used at registration; and
  • Workforce size:  only those employers who have five or more employees.

The search tool also includes the capability to filter the results, sort the ascending or descending order of the records displayed, and export the results to a comma -separated value (CSV) file. Filtering can be done by Employer Name, Federal Contractors, City, State or Zip Code. The search tool does have its limitations. For one, since employers enrolled in E-Verify only provide a contact address and the address where the employer conducts E-Verify cases (regardless of how may company locations participate in E-Verify), not all business locations of an employer enrolled in E-Verify will necessarily be listed in the search tool results. Additionally, since there are no required naming conventions when an employer enrolls in E-Verify, an employer may use its legal name,a trade name for public business purposes (e.g. fictitious name), or an abbreviation or a company name based on his or her location within the company. As a result, employers may not be found unless searched specifically by the name it used to enroll in E-Verify. Furthermore, given that E-Verify does not currently collect any information on federal contracts (e.g. DUNS number, contract number, number of contracts held by a company or location, period of performance of a contract, and/or number of personnel on a contract, and whether they’re a subcontractor), even when a company is in the search tool database, it’s not possible to determine how many of its employees should be verified or which locations should be covered by that company. For more Search Tool information check out the User Guide or the Questions and Answers.

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We are so excited to announce details for the 21st Annual HR Law & Solutions Seminar!  This year’s event will be held March 19, 2013 at Sanibel Harbour Resort & Spa.

For our 21st seminar, we will offer sessions on workplace investigations, workers’ compensation, immigration, health care reform, and of course the case law update.  We’re also bringing back the employment law Jeopardy, since it was a lot of fun and got rave reviews last year!  For our guest speaker, we are excited to welcome Chip Madera, a dynamic motivational speaker who will present HR– Keepers of the Culture:  Creating a Workplace of High Performance, Quality, and Excellence.

Special thanks to our lunch sponsor Lykes Insurance.  Lykes has been a great partner for us over the years, and we are honored to have Lykes’ continued support.

 

 

Another special thanks — and warm welcome — to our new partner, and breakfast sponsor, CTR Systems, Inc.  We are so happy to have you on board!

 

 

We’ll be spotlighting our sponsors here on the blog as we get closer to the seminar.   If your company would like to become a sponsor, contact Gail Lamarche to discuss your options.

Registration will open at the beginning of February.  We hope you’ll join us this year, as we aim to make this the biggest and best HR Law & Solutions yet!

 

Can you believe we’re less than a month away from 2013? We can’t!

One of the things that will change for Florida employers is the minimum wage, which is set to increase again in 2013, rising from $7.67 to $7.79 per hour. The minimum wage for tipped employees is rising as well, from $4.65 to $4.77 per hour.

The increase is effective beginning January 1, 2013. Employers should make sure payroll is adjusted appropriately. Employers should also update their minimum wage posters, which must be posted in a conspicuous and accessible place. You can download the English version of the new poster here, and the Spanish version here.

In other news, we’ve been hard at work behind-the-scenes planning the 2013 HR Law & Solutions seminar. We hope to make it even bigger and better than 2012 — and that’s a tall order considering the 2012 seminar ended with a 20th Anniversary champagne & Norman Love celebration!

Check back later this week for more information.  As always, if you have any suggestions or requests for things you’d like to see at our 2013 seminar, feel free to comment here, or you can call or email us — we’d love to hear them.

 

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Tis election season! And it is impossible to ignore the political debate that is unfolding in the media, on social networks, and in everyday conversation. Can and should employers restrict political discussion in the workplace? It depends.

Private employers enjoy wide latitude in determining whether and how to regulate employees’ expression of their political views in the workplace. Contrary to popular belief, employees in the private sector do not have a First Amendment right to discuss politics in the workplace. The Constitution applies only to governmental censorship of speech.

Generally, an employer’s goal is to keep employees comfortable and focused on work. After all, employees are paid to do a job, not campaign. Heated political debate or solicitation in the workplace is likely to have a negative effect on morale and productivity. But, political debate in the workplace may also expose an employer to liability. When co-workers discuss politics, employers may be exposed to claims of discrimination, retaliation or hostile work environment. After all, political views are often intertwined with an individual’s beliefs on hot button topics such as sex, religion, national origin, age, and disability. Consider how a co-worker’s unwelcome comment about a candidate’s age or religion might lead to a hostile work environment claim. Or, how a supervisor’s discipline of an employee for insubordination after an intense debate over a candidate’s pro life politics could expose an employer to a claim of retaliation.

Most employers do not have a formal policy governing political speech in the workplace. However, non-solicitation policies may be applicable to some forms of political speech. And, policies governing computer usage may be utilized to restrict employees using the e-mail system or accessing the internet for political purposes.

Some freedom of expression in the workplace is a good thing. However, employers should be aware of the hazards of political speech in the workplace. Expression of political beliefs may interfere with workplace efficiency, cause workplace disruption and even lead to claims of discrimination, retaliation, and harassment.