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We thought this might be of interest to our many small business clients:

The U.S. Department of Labor is offering a free webcast on retirement savings options for small businesses and plan providers this Wednesday, February 23.  Check out the press release here.

The webcast, which takes place from 2:00 p.m. to 4:00 p.m. EST, will focus on retirement savings options ranging from simplified employee pensions (SEPs) and savings incentive match plans to the more complex 401(k) plan.  The DOL hopes the webcast will provide practical information to help participants understand and compare plan options, and provide tips to help small businesses start and operate these plans.

Interested?  Register online at http://www.dol.gov/ebsa.  You can also find additional information on retirement plan solutions on the Employee Benefits Security Administration’s website.

The Florida Legislature is considering a change to unemployment benefits that would, for the first time in a long while, favor the employer and not the employee.  If passed, the measure would reduce unemployment compensation from 26 weeks to 20 weeks.  It would also deny benefits for employee misconduct and force employees to accept any offer that paid as much as their unemployment benefit once the worker has been out of work for more than 12 weeks.  Marcia Heroux Pounds of the Sun-Sentinel wrote an article earlier this week detailing the proposed changes and reactions from both sides.  Find her article here.

While this change will not be received well by the many laid-off workers in Florida (Florida’s unemployment rate was 12% in December 2010), it is the first proposed change we can remember in a long while that might actually favor employers.  If the bill passes, it will be interesting to see how the Agency for Workforce Innovation implements some of the less concrete policies, such the denial of benefits for misconduct.  Anyone who has dealt with an unemployment claim, at least in the recent past, knows how heavily it is tilted in favor of the employee — absent a case of flagrantly gross “misconduct” the employee almost always receives benefits.

In any event, it will be interesting to see if this bill evens the playing field in that regard.  We will keep you posted as the bill makes its way through the Legislature.

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We were asked recently whether an employer could require employees to submit to a lie detector test.  The answer, in almost all cases, is no.  The Employee Polygraph Protection Act of 1988 generally prevents employers from using lie detector tests either for pre-employment screening or during the course of employment, with certain limited exceptions.

The EPPA prohibits an employer from requiring (or even asking) an employee or prospective employee to take a lie detector test.  It also prohibits an employer from using or inquiring about the results of any lie detector test taken by an employee or prospective employee.  Finally, the EPPA prohibits employers from discharging, disciplining, discriminating against, or denying employment to any employee or prospective employee for refusal to take a lie detector test, among other things.

Government employers are typically exempt from the EPPA.  All employers who are subject to the EPPA are required to post a notice on its premises.  You can download a copy here.  A good spot would be the location where other workplace notices — OSHA, FLSA, etc. — are posted.

If you have questions about the limited circumstances under which a private employer may use a polygraph test, please consult counsel before taking any action in that regard.  The EPPA not only allows the Department of Labor to assess money violations of up to $10,000 per violation; it also allows employees to bring a civil action for damages against the employer.  Better safe than sorry!

 

Yesterday, the Equal Employment Opportunity Commission announced that a record number of private sector workplace discrimination charges were filed with the agency in its fiscal year 2010.  In its press release, the EEOC noted that 99,922 charges were filed, calling this figure an  “unprecedented level” of discrimination charges.  The statistics show the EEOC, through its combined enforcement, mediation, and litigation programs, secured more than $404 million in monetary benefits from employers.

All major categories of charge filings increased last year.  Interestingly, but not surprisingly, retaliation charges surpassed race as the most frequently filed charge.  The EEOC also received 201 charges under the Genetic Information Nondiscrimination Act in its first year of enforcement.

In the press release, EEOC Chair Jacqueline A. Berrian stated:  “Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias.”

What does this mean for employers?  Ms. Berrian’s statement confirms the EEOC’s commitment to step up its enforcement of anti-discrimination laws.  Employers should expect the upward trend in charge filings to continue, perhaps at an even more rapid pace.  The spike in retaliation claims should be a big warning light for employers — you MUST take special caution when handling employees who have previously complained of discrimination, harassment, or other related workplace claims.  Even if the employee does not have a valid underlying claim, the employee can serve up a retaliation claim on a silver platter if not careful.

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Immediately after being sworn-in as Florida’s Governor on Tuesday, Rick Scott signed several executive orders, including Executive Order 11-02, which will require state agencies to use E-Verify for all current and prospective agency employees.  Perhaps more importantly for our readers, the Executive Order also requires all employers who are state contractors to use E-Verify to check the work eligibility status of anyone employed in Florida during the contract term, and anyone (including subcontractors) hired to perform work pursuant to the state contract.

E-Verify is an online system provided by the Department of Homeland Security that allows employers to check the eligibility of an employee to work in the United States.  It is currently mandatory for most federal contractors in a handful of states.  Until now, it was not mandatory for employers (other than federal contractors) in Florida.  It will be interesting to see whether Governor Scott eventually pushes to require all private employers to use E-Verify, a promise he made on the campaign trail.  For now, however, only state agencies, state contractors, and state subcontractors will be affected.

The text of the Executive Order instructs state agencies to include the E-Verify requirement for all state contractors and subcontractors expressly as a condition of state contracts.  Based on this wording, it appears this requirement will only affect new state contracts.

Employers who hold state contracts should pay close attention as this requirement takes effect.  For more general information on E-Verify, check out the Department of Homeland Security and the U.S. Citizenship and Immigration Services websites.

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This has been a very exciting year for all of us here in Henderson Franklin’s Employment Law Practice Group.  Early in 2010 we started this blog, Southwest Florida HR Law & Solutions, the first employment law blog in Southwest Florida.  In April 2010 we hosted our 18th Annual HR Law & Solutions Seminar, and presented to a record 280 attendees.  The practice group has grown to include five attorneys, and we have had the privilege of not only working with our many long-standing clients, but establishing relationships with numerous new clients.

Looking ahead to 2011, we have many exciting things on the horizon.  First up is a presentation on January 26, 2010 at Charlotte County SHRM.  In March, we will be sponsoring the HRMA of Southwest Florida luncheon here in Fort Myers.  On April 26, 2011 (SAVE THE DATE!) we will host the 19th Annual HR Law & Solutions Seminar at Pelican Preserve.  While it will be hard to top the 2010 seminar, we are already hard at work planning the agenda.  In 2011 we will feature two guest speakers, who will be profiled here in the coming weeks.  Later in the year we will host another Executive Forum.  In addition to our speaking engagements, we will be updating the blog more frequently — we have been collecting articles, news stories, and other tidbits for upcoming posts.

Thank you all for your support over this past year.  We are very much looking forward to 2011 — Happy New Year everyone!

Last week, the National Labor Relations Board (“NLRB”) issued a news release announcing a proposed rule which would impose a new notice requirement on employers subject to the National Labor Relations Act (“NLRA”).  The notice would inform employees of their rights under the NLRA, including their right to unionize.

According to the press release, the NLRB “believes that many employees protected by the NLRA are unaware of their rights under the statute.  The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The proposed rule is open for a 60-day comment period.  If the rule passes, covered employers would be required to post the employee rights notice where other notices (i.e. FLSA notices, FMLA notices, OSHA notices, etc.) are typically posted.  Additionally, an employer may be required to post the notice electronically, if that is the primary method by which the employer communicates with its employees.

A fact sheet is available here.  The full text of the proposed rule is available here.  Check back with us for an update after the comment period ends February 22, 2011.

We are in Chicago attending the ABA 4th Annual Section of Labor and Employment Law Conference.  We are a little more than halfway through the conference and we have gathered all sorts of great material for this blog, and for our next HR Law & Solutions seminar (scheduled for Tuesday, April 26, 2011 at Pelican Preserve Country Club in Fort Myers).

In the meantime, we thought we’d do a quick “preview-of-things-to-come” based on issues that have been addressed at the Conference:

  • Top 5 ADAAA Compliance Tips for Employers (if you recall my previous post on EEOC enforcement of the ADAAA you know you want to pay close attention!).
  • Emerging issues top employment litigators expect to explode:  social media and resulting discrimination claims; privacy in the workplace; and, misclassification of employees as independent contractors.
  • GINA, the Genetic Information Nondiscrimination Act.  The EEOC is *this close* to issuing its final regulations, which should be out no later than next week.  If you don’t know what GINA is you’ll definitely want to pay attention to this blog over the next few weeks.
  • The next wave in FLSA litigation?  Issues over whether work communications on mobile devices count as compensable time.
  • Also, check out the Department of Labor’s FLSA Fact Sheet #13.  It’s not new but a very useful tool for determining whether an employer-employee relationship exists.
  • Watch out for a growing number of national origin discrimination cases based on English language/fluency requirements and/or accent discrimination.
  • #1 thing employers should do upon learning of an employee’s discrimination/harassment complaint?  You MUST complete a thorough, fast, and unbiased investigation.

These are some of the top hot-button items discussed at the Conference.  If you see anything that piques your interest or that you would like to see as a topic at HR Law & Solutions in April, please let us know.  We will follow up with more detail on many of these topics here in the coming weeks.

As we’ve mentioned here before, there has been proliferation of FLSA wage cases filed in the last few years, particularly in the Florida district courts.  In fact, the volume of FLSA claims has nearly tripled in the past 10 years.  According to updated federal statistics, over 5,500 FLSA lawsuits were filed nationwide between March 2008 and March 2009, marking a 7.5% increase over the previous period, and representing the second-highest total on record.

We bring up these staggering statistics because the FLSA affects everyone.  Unlike some of the other employment laws that only apply to employers with 15+ employees (Title VII, ADA), or 20+ employees (ADEA), or 50+ employees (FMLA), and so on, the FLSA applies to employers who have just one employee.  Everyone!

It is imperative that employers take care to ensure they are in compliance with all parts of the FLSA.  Review employee classifications closely — make sure you are only exempting employees who truly fit into one of the exempt classifications.  Check into your policies regarding on-the-clock and off-the-clock time, and make sure you are properly applying the rules on compensable time.  Set up complaint procedures and investigation guidelines.  Put a “Salary Basis Policy” in your employee handbook if you do not already have one.

While these actions are neither exhaustive nor a complete defense to liability, taking each and every proactive approach to limit liabiity is a wise move these days.  Do it now, before your company becomes a statistic.

 

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced the filing of three new disability discrimination cases in a recent press release.  These cases, which were filed under the ADA Amendments Act of 2008 (“ADAAA”), allege discrimination against qualified individuals with diabetes, cancer, and severe arthritis.

You should recall that the ADA was amended by the ADAAA, effective January 1, 2009.  The ADAAA clarified and expanded the definition of “disability,” making it easier for people with disabilities to qualify for protection under the ADA.  We wrote a brief newsletter article in October 2008 detailing some of the changes, which you can download here.

The new cases are among the first filed by the EEOC under the ADAAA, but employers can rest assured they will not be the last.  According to EEOC Chair Jacqueline Berrien, the EEOC wants to send a “clear message that the Commission will vigorously enforce the ADA.”  The EEOC’s general counsel further cautions, “Individuals with disabilities — including serious medical conditions such as cancer, diabetes, and severe arthritis — must be evaluated according to their qualifications, and not their disabilities.”

Employers and HR professionals should take special care to ensure they fully understand the scope and breadth of the ADAAA.  If you have any doubts or questions about the definition of diability, reasonable accommodations, or anything related to the ADAAA, the best time to act is NOW — do not wait until the EEOC comes knocking.