U.S. Department of Labor Publishes Notice to Update “Regular Rate” Regulations

Breaking its 50-year silence on the matter, on March 28 the U.S. Department of Labor announced its intention to update the federal regulations explaining how to calculate the “regular rate of pay” for non-exempt employees. Accurately calculating the regular rate is an essential step in paying the correct amount of overtime pay at one-and-one-half times the regular rate when a non-exempt employee works more than 40 hours in a workweek. The regulations governing regular rate requirements have not been updated since 1968, even though pay practices have changed significantly. Read more ›

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Posted in Labor & Employment

Workplace Wellness Programs – Key Legal Considerations

Wellness programs have been, and continue to be, of interest to both employees and employers. Employees are more and more aware of healthy living initiatives. Similarly, employers are being inundated with information about the importance of employee health and workplace productivity. Due to mutual interest, it is tempting to jump into the implementation of new wellness programs with both feet. Beware, however, as there are hidden concerns in wellness program implementation and maintenance. The following are a few of the key issues to consider. Read more ›

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Posted in Labor & Employment, Wellness Programs

Protecting Your Trade Secrets: Implementing an Effective Exit Protocol

We have previously posted on HR Headaches about the practical steps employers can take to protect their company’s trade secrets. You can find that post here. With this edition, we dive a bit deeper into the strategies and safeguards companies can deploy to prevent their trade secrets from walking out the door along with a departing employee. Read more ›

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Posted in Trade Secrets

How to Conduct Criminal Background Checks the Right Way

Criminal background checks are helpful in not only identifying applicants who might not be suitable for a job, but in limiting the potential liability associated with negligent hiring claims. Bethany Salvatore and Bryant Andrews answer your questions about when to conduct criminal background checks, how to conduct them, and how to protect your company from liability.

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Posted in Labor & Employment

Seventh Circuit Locks External Applicants Out of ADEA Disparate Impact Claims

It is not uncommon for a job posting state that the ideal candidate is a person with a certain number of years of relevant experience. Setting a target range of years of experience signals to applicants the level of complexity of the work or the skill level required, and can assist applicants in determining whether they would be a good fit for the job. One unintended consequence of such a prerequisite, however, is that individuals over the age of 40 may be disqualified or self-select out of the pool of eligible candidates.  Read more ›

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Posted in Discrimination

The NLRB’s Newest Take on Who Is an Employee under the National Labor Relations Act

On January 25, 2019, the National Labor Relations Board (“NLRB”) issued an important  decision in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, 367 NLRB No. 75, Case 16-RC-010963 (Jan. 25, 2019), holding 3-1 that franchisee drivers who operated shared ride vans were independent contractors, not employees, under the National Labor Relations Act (“NLRA”). In SuperShuttle, the Board found that the franchisee drivers were required to purchase or lease a van and enter into a franchise agreement with strong indemnification provisions in favor of the operator. The drivers also had total control over their work schedules, determining how much or how little to work, and had discretion on what trips to accept. According to the Board, these factors demonstrated a significant opportunity for economic gain, as well as a significant risk of loss. Read more ›

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Posted in NLRB

Pennsylvania Court Joins Trend in Holding No-Hire Agreements are Unenforceable as a Matter of Law

On January 11, 2019, in Pittsburgh Logistics Systems, Inc. v. BeeMac Trucking, LLC and BeeMac Logistics, LLC, a panel of nine judges sitting en banc affirmed a ruling holding that a no-hire agreement between two companies was unenforceable as a matter of law. In this case of first impression, the fact that there was a valid non-solicitation agreement in place that protected the company’s interests and that the no-hire provision was an overly restrictive restraint on trade informed the trial court’s decision and provided support for the affirmation of that decision. Read more ›

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Posted in Labor & Employment

Top 10 HR Headaches for 2019

A new year always brings new headaches for HR professionals. So far, 2019 has been off to a running start with a government shutdown, the early start of the next presidential campaign and talks of major immigration reform. Here is the list of issues that should be on the radar for every company’s HR department this year.

  1. Overtime Regulations: The Obama era changes to the overtime regulations were stopped, but the new and improved version under the Trump administration is expected to arrive in early 2019.  Like before, the regulations will likely have an increase in the salary threshold for exempt employees.
  2. ADA Accommodations: The world of reasonable accommodation has never been more complex.   Be prepared for requests for emotional support animals, flexible schedules, and remote work options.
  3. Medical Marijuana:  The legislative trend towards legalizing marijuana is picking up steam.  If you are not in a state with legalized marijuana, you are probably near one.  Employers face new challenges in drug testing and addressing requests for accommodation from medical users.
  4. #MeToo Fallout: The #MeToo trend and the Kavanaugh hearings are over– but not gone.  The effects are here to stay, and employers will be dealing with increased sexual harassment claims for years to come.
  5. Pay Equity:  One of the tangible impacts of the #MeToo movement was an increased focus on gender pay equity.  Look for more states and cities (and possible the new Congress) to enact legislation in this area, including already popular bans on seeking salary history from applicants.
  6. Off the Clock Suits: The wage and hour class action is slowing down, but is still a significant threat.   With changing workforce practices, employers must stay vigilant that non-exempt employees record all of their working time, and supervisors are trained not to allow compensable work before or after shifts.
  7. Immigration Reform: It looks like we may see comprehensive immigration reform in 2019.  That will likely mean changes to the I-9 process and possibly mandatory E-Verify. Stay tuned.
  8. Social Media: Employers are increasingly expected to act as the Facebook and Twitter police.  With cyber-bullying and textual harassment moving into the workplace, employers will continue to face tough decisions on when and how to terminate employees for something said on social media without running afoul of the law.
  9. Paid Sick Leave: States and cities continue to pass laws requiring different levels of paid sick leave, which is creating a nightmare for multi-state employers looking for consistent policies.  SHRM continues to lobby for a federal solution, and this trend will continue through the next presidential campaign.
  10. Intermittent FMLA:  Employers are increasingly facing abuse of FMLA policies by employees claiming to need intermittent leave for headaches, sore backs, and other lingering conditions that can turn into a permanent license to be absent at will.  Employers are pushing back through aggressive policies and enforcement, which will likely lead to increases in litigation and (hopefully) more guidance from the Department of Labor and courts.

It’s important to keep these issues in mind throughout the year. As an employer, you should consider the challenges that these issues could present and plan accordingly. We’ll continue to update you with the latest news and developments related to numerous HR concerns. Feel free to reach out to me with any questions.

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Posted in Labor & Employment

Job Description Mistakes You Don’t Want to Make

A good job description can equip an employer with the best possible workforce available. Inaccuracies and oversights, however, can entangle your company in litigation for years. Bethany Salvatore and Bryant Andrews talk us through the importance of job descriptions here.


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Posted in Labor & Employment

Philadelphia’s Fair Workweek Employment Standards Ordinance Targets Hospitality, Retail and Food Services Employers

In December 2018, Philadelphia enacted The Fair Workweek Employment Standards Ordinance, which has widespread ramifications for non-exempt workers in the retail, hospitality and food services industries. The ordinance, which takes effect January 1, 2020, targets employers with at least 250 employees and 30 locations worldwide and is aimed at providing full-time, part-time, seasonal and temporary workers with more predictability in their work schedules. It is expected to impact 130,000 workers in Philadelphia. Read more ›

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Posted in Labor & Employment, Wage and Hour
About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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