With most laws, employers have less difficulty meeting the laws’ mandates as time goes by and they become more familiar with the requirements.
Not so with the Fair Labor Standards Act of 1938 (FLSA), where lawsuits have multiplied as the law has increasingly fallen out of step with the modern workplace, according to Paul DeCamp, an attorney in the Washington, D.C., area office of Jackson Lewis, and former administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division.
When Jerry Sandusky was still employed by Penn State as a football coach in 1998 and was accused of child abuse, several men—including President Graham Spanier, Senior Vice President-Finance and Business Gary Schultz, Athletic Director Timothy Curley and Head Football Coach Joe Paterno—concealed the accusation from the university board of trustees, according to a July 12, 2012, report by Louis Freeh, an attorney with Freeh Sporkin & Sullivan LLP, former judge and former director of the FBI.
It’s not too late to train youth employed in summer jobs about workplace policies, something employers too often fail to do, according to Jay Zweig, an attorney with Bryan Cave in Phoenix. Training of youth and managers is particularly needed about sexual harassment, workplace safety and hourly restrictions.
Sexual Harassment
Sexual harassment is one of the biggest areas of complaint with all employees, Zweig noted. When youth haven’t been in the workplace before, they might not know how to behave appropriately with co-workers in that setting.
HR professionals may be familiar with the ins and outs of wage and hour laws, but managers often are not, Gregory Hare, an attorney at Ogletree Deakins in Atlanta, told attendees at a concurrent session on Monday.
Equally troubling is employees’ argument that they were unaware of an employer’s wage and hour policies. Don’t leave room for that argument—it could spell trouble in wage and hour litigation, he cautioned.
Signed Statements
In a May 30, 2012, report whose guidance is likely to be challenged in the courts, the National Labor Relations Board (NLRB) cautioned that it believes that numerous common clauses in social media policies violate the National Labor Relations Act (NLRA).
An Equal Employment Opportunity Commission (EEOC) recommendation in its recent guidance on criminal background checks to not ask about convictions in employment applications as a best practice is bad advice, according to Don Livingston, an attorney with Akin Gump in Washington, D.C., and a former EEOC general counsel.
“A few jurisdictions ban the box,” he noted. “In those jurisdictions, employers are barred from asking about criminal convictions at the application stage of the hiring process.”
The U.S. Department of Labor’s (DOL) wage and hour enforcement under the Obama administration has become markedly more hostile toward employers, according to Paul DeCamp, former administrator of the Wage and Hour Division under President George W. Bush and an attorney at Jackson Lewis’ Washington, D.C., regional office.
‘New Normal’
By a 4-1 vote, the Equal Employment Opportunity Commission (EEOC) on April 25, 2012, approved a new guidance on criminal background checks.
Consolidating and superseding previous EEOC guidance on criminal background checks, the guidance discourages blanket exclusions of individuals who have been convicted of crimes and encourages the use of individualized assessments of whether an employer’s criminal conduct exclusion is job related and consistent with business necessity.
Growing but still rare. That’s the way Laura Friedel, an attorney with Levenfeld Pearlstein in Chicago, would characterize private-sector employer requests for applicants’ or employees’ Facebook e-mail addresses and passwords.
“Our clients are asking about it more, but few have implemented policies requiring applicants or employees to provide Facebook log-in information, log in to Facebook in front of or ‘friend’ company representatives,” she told SHRM Online.
Texts can resurface in employment law litigation, so employees should be trained to keep all of their communications, including texts, professional. All too often, employees think that their texting is personal, according to Christine Walters, MAS, J.D., SPHR, a consultant with FiveL Company in Westminster, Md., and author of From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations.
The Fair Labor Standards Act’s (FLSA) anomalous and vague requirements are forcing employers to impose precautionary workplace policies that are overly restrictive and out of step with modern work habits, according to a Nov. 3, 2011, report based on a survey conducted by the HR Policy Association.
The survey, to which 155 HR chiefs responded, found that companies implemented a number of restrictions on nonexempt employees because of the law, such as restrictions on:
Employers are asking more questions about how to handle stressed-out workers, according to Peter Petesch, an attorney with Littler Mendelson in Washington, D.C.
Federal contractors seeking to fulfill their affirmative action responsibilities to veterans should partner with organizations that promote the employment of veterans, according to David Cohen, president of DCI Consulting Group Inc. in Washington, D.C.
SAN DIEGO—On June 28, 2010 former Vice President of the United States Al Gore encouraged Society for Human Resource Management (SHRM) Annual Conference attendees to see the opportunities in crises and advocate for long-term rather than short-term solutions.
Gore said that in Chinese and Japanese, the word crisis is written with two characters—one for danger and one for opportunity. Too often, all that is seen in a crisis is the danger, he remarked.
