Supplemental Poster to be Used by Government Contractors and Subcontractors

By Elizabeth A. Coonan

On September 10, 2015, the United States Department of Labor Office of Federal Contract Compliance Programs (OFCCP) issued a supplemental poster to be used by government contractors and subcontractors. The OFCCP is working with the EEOC to update the existing poster and advises that the prior poster should be used along with the supplemental poster until further notice. A copy of the supplemental poster can be found here.  

If you have any questions about postings, please do not hesitate to contact BrownWinick’s Employment and Labor Practice Group Co-Chair, Beth Coonan for more information.

Tricks and Treats for the HR Department

By Amanda G. Jansen

A true Halloween scare for any HR department involves the kinds of missteps that result in government audits or legal action against the employer. Although employees are a company's most valuable resource, failure to manage the employment relationship properly can result in frightening consequences. By conducting a regular HR audit, employers can eliminate common problems, protect valuable assets and improve employee morale. Some of the common problems an HR audit can resolve include: 

• Poor communication with employees. Creating, circulating and updating employee handbooks can improve employee communication. Quality handbooks also encourage legal compliance and answer employee questions.

• Gaps in protections for trade secrets and confidential information. Shoring up policies and practices designed to protect confidential or trade secret information makes it harder for employees to misuse or steal it.

• Failure to adhere to wage and hour laws. Ensuring proper classification of exempt employees and independent contractors reduces the risk of government audits and lawsuits.

• Inappropriate I-9 practices and procedures. Promoting I-9 compliance helps employers avoid hefty fines and penalties.

• Flawed hiring practices. Keeping hiring practices free of practices that could be construed as discriminatory reduces the risk of lawsuits, for example asking about protected class status.

• Inattention to discrimination, harassment and retaliation. Sound training, policies and investigations helps eliminate these significant risks.

• Poorly administered discipline and investigations. Avoiding errors in this area helps strengthen a legal defense if the issue results in litigation.

• Inappropriate handling of accommodation requests. Good use of the interactive process yields happier employees and fewer legal risks.

• Social media gaffes. Providing structure and guidance for social media practices keeps employers from facing embarrassing public problems.

• Health and safety shortcomings. Keeping employees safe is key to any company's success.

• Unlawful leave policies and practices. Complying with leave law keeps a significant area of legal exposure from becoming a costly lawsuit.

BrownWinick’s Employment and Labor Practice Group can conduct an HR audit for your company to address these and other issues.  Contact Co-Chairs, Beth Coonan or Ann Kendell, for more information.

(Reprinted with permission from Practical Law)

DOL Issues Update on Overtime Regulations

By Megan Erickson Moritz

More than a year ago, President Obama asked the Department of Labor to update its overtime regulations. Yesterday, the DOL finally announced its proposed rule. The proposed rule would extend overtime pay and minimum wage protections to almost 5 million US workers within a year of its implementation. The proposal also includes raising the salary threshold applicable to many of the exemptions from $455 a week to $970 a week. 

The Office of Management and Budget has reviewed and approved the Notice of Proposed Rulemaking, but the Notice has not yet been published in the Federal Register.  When it is officially published in the Federal Register, the Notice will specify the dates for the public comment period. The OMB-approved version of the Notice is available for review online at the DOL's website as a courtesy, but does not trigger the official comment period.

More information about the DOL's announcement is available here.

Michael Staebell to Speak at BrownWinick's Employment Law Seminar

Michael Staebell is the District Director for the US Department of Labor, Wage and Hour Division in Des Moines. The Des Moines District Office encompasses Iowa and Nebraska. Michael has been with the Wage and Hour Division for 30 years, as an investigator in Des Moines and Waterloo, and in his current position. In addition to supervising the District Office staff, he regularly gives presentations to the public, and has served as a national trainer for Wage and Hour on the Fair Labor Standards Act, Total Quality Management, Family and Medical Leave Act, Litigation Preparation, and Investigator Basic Training.

Michael will be discussing "Common Wage and Hour Issues and How to Avoid Them" at the Employment Law Seminar on Wednesday, October 15, 2014 at 9:05 a.m. 

BrownWinick's Employment Law Seminar is held at the Hilton Garden Inn, 8600 Northpark Drive, Johnston, Iowa from 8:30 a.m. - 3:00 p.m. Space is limited. Click here to register.

U.S. Congressional Committee Hearing Confirms Our Observations and Advice on Wage and Hour Issues

By Ann Holden Kendell

Our practice group has been sounding the alarm regarding wage and hour issues – specifically highlighting “industry practices” and bonus plans.  The Fair Labor Standards Act (FLSA) and its attendant regulations are often an area of serious confusion for employers.  Additionally, when employers in the same industry compare notes and feel comforted that “everyone” is using the same pay practice – this is often something that acts as a “red flag” to us as practitioners.  We recently received confirmation about our concerns on these issues.       

On July 23, 2014, the U.S. Education and the Workforce Committee held a hearing on “Improving the Federal Wage and Hour Regulatory Structure” to discuss the report issued by the Government Accountability Office (GAO) outlining the growth of FLSA-related litigation and the need for improving compliance guidance.  The GAO reports that improvement in guidance “could increase the efficiency and effectiveness of [the department’s] efforts to help employers voluntarily comply with the law.”

In the testimony provided by Dr. Andrew Sherrill, Director, Education, Workforce and Income Security, the following chart was provided showing FLSA lawsuits filed in federal district court in fiscal year 2012 by type:

Director Sherrill also provided the chart below showing FLSA lawsuits filed in this same timeframe by type of allegation:

[NOTE: The percentages in the chart do not add to 100% as FLSA lawsuits may contain multiple allegations.  Also, “Other FLSA allegations” include, but are not limited to, recordkeeping violations, failure to post FLSA information and violations related to tipped workers.]

Director Sherrill further noted that the DOL targets industries for enforcement where enforcement data shows there is a higher likelihood of FLSA violations.  (Director Sherrill’s testimony:  http://edworkforce.house.gov/uploadedfiles/sherrill_testimony.pdf).

The testimony at the hearing also included information about the aggressiveness in enforcement by the Wage and Hour Division of the Department of Labor (WHD) with regard to bonuses and the failure by employers to pay additional overtime on the increased “regular rate” due to the payment of a bonus.  Additionally, it was noted that “WHD will challenge almost any bonus as non-discretionary,” therefore any reliance an employer may have on the discretionary bonus language contained in the regulations will likely be misplaced.  (DeCamp testimony, http://edworkforce.house.gov/uploadedfiles/decamp_testimony.pdf).

What this means for Iowa employers – Employers should ensure that workers are characterized correctly: employee v. independent contractor; exempt v. non-exempt.  Also, all hours of work need to be recorded and paid at the right rate.  Further, bonus programs should be reviewed to determine whether bonus payments increase the regular rate (thereby increasing the amount of overtime due).  In addition to making sure all these items are being handled correctly “in practice,” written policies notifying employees of the need to record all time worked and encouraging employees to identify and report mistakes or other pay issues can provide valuable information to the employer to correct problems, as well as legal defenses.

If you have questions about employment policies and practices regarding wage and hour issues, you should contact your BrownWinick employment law attorney.

For Additional information:

For the “Highlights” of the GAO report:  http://www.gao.gov/products/GAO-14-69

For the GAO report:   http://www.gao.gov/assets/660/659773.pdf

For information on the hearing:   http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=387870