New Trend in Overtime Suits – HR Managers?

Posted on January 14, 2014 by David Barron — No Comments ↓

On January 10, a federal judge in Florida certified a nationwide collective action against Lowe’s Home Centers. If the story stopped there, it would be unremarkable since virtually every large company has been hit with wage and hour suits in recent years.

What is interesting about this case is that it was filed by HR Managers claiming they were improperly classified as exempt from overtime. The plaintiff was an HR Manager at an individual store and claimed that she did not supervise anyone and did not exercise the necessary level of independent discretion and judgment to meet the administrative exemption. The plaintiff claimed that all meaningful employment decisions, like terminations, were made by higher ups within the HR department, and that she primarily performed clerical duties. A copy of the judge’s decision can be found here.

The takeaway from this decision is that not even HR departments are immune from overtime lawsuits. Many exempt HR personnel do not qualify for the executive exemption because they do not directly supervise two or more full-time employees. The administrative exemption, which likely would apply to HR staff, can pose challenges in ligation because it revolves around the level of discretion enjoyed by the employee (which can be subjective). Prudent employers should make sure to keep records of exempt HR employees being involved in hiring, firing or discipline of employees. Keep in mind that the law does not require the exempt employee to have final authority to make decisions, only that he or she be allowed to make recommendations which are given substantial weight. Keeping such records will make it very difficult for the exempt employee to sue for mis-classification and overtime.

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Tagged with: Administrative Exemption
Posted in Labor & Employment, Uncategorized, Wage and Hour

NLRB Gives Up on Poster Fight

Posted on January 7, 2014 by David Barron — No Comments ↓

On January 6, 2014, the National Labor Relations Board (NLRB) gave up on its fight to require all employers to post a notice informing employees of their right to form a union. The NLRB’s mandatory poster rule was invalidated by two separate U.S. Courts of Appeals, and the prospects of the NLRB winning at the Supreme Court were slim. This brings a conclusion to a fight that began in 2011 when the NLRB ordered all employers to post the notice, which many argued was biased in favor of unions.

The NLRB’s statement on the poster can be found here.

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Posted in Federal Government, Labor & Employment, Wage and Hour

The 2013 Observer is Here

Posted on December 19, 2013 by David Barron — No Comments ↓

Each year, my firm’s labor department issues a client report analyzing all of the important legal developments which impact employers, as well as taking a look ahead to upcoming issues. The 2013 version of that report is now available and can be found by clicking here. Inside the report are great articles about privacy law, social media in the workplace, healthcare reform and more. When things are slow during the holidays, I encourage you to take some time to read these articles.

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Obamacare Versus Volunteer Fire Departments

Posted on December 17, 2013 by David Barron — No Comments ↓

Among all of the myriad problems with the Affordable Care Act (a/k/a Obamacare) is a little publicized issue which could devastate volunteer fire departments across the country. Since the Supreme Court ruled that Obamacare is a “tax” and the IRS considers volunteer fire fighters to be employees, a fight is brewing over whether such volunteers must be offered health insurance.

Fire departments and unions representing fire fighters have been publicizing the enormity of the potential impact (link here). A bipartisan group of Senators wrote the Department of Labor and IRS on Monday, December 16th, lobbying for non-coverage under the law, and a legal opinion is expected sometime in early 2014 before the employer mandate becomes effective. If volunteers are deemed to be employees, the fire departments will be required to offer health insurance or else face steep penalties. This would effectively bankrupt volunteer fire departments, which have tight budgets, and would be wasteful since most personnel likely have other jobs which offer benefits.

Since we all rely on fire protection, this is an important issue which should be followed closely.

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Fifth Circuit Rules Class Action Waivers Are Lawful

Posted on December 5, 2013 by David Barron — No Comments ↓

The Fifth Circuit Court of Appeals (the federal appeals court with jurisdiction over Texas) struck a blow to the National Labor Relations Board’s attempt to outlaw mandatory class action waivers for employees. On December 3, 2013 the Court over-ruled the NLRB’s decision involving homebuilder D.R. Horton, and concluded that the company did not violate the law by requiring employees to sign arbitration agreements which gave up the right to file a class action. The full decision can be found here.

This decision opens the door for the use of arbitration agreements as a method of avoiding costly wage and hour collective actions. Although some employers may not want to give up the right to a jury trial in all cases, like discrimination or harassment, there is nothing preventing the use of an arbitration agreement limited to wage and hour claims. In fact, our Cozen team has helped many companies implement such agreements which require employees to first bring payroll disputes to the Human Resources Department, followed by mandatory mediation, and, lastly, binding arbitration with no option for a class action. By taking wage and hour claims out of the court house and eliminating class actions, much of the legal risk of these claims can be avoided.

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Tagged with: Arbitration, Collective Action, NLRB, Waiver
Posted in Labor & Employment, Uncategorized, Wage and Hour

Driving To Perfection

Posted on December 3, 2013 by David Barron — No Comments ↓

It is not every day that you have a client who writes a book. I was pleasantly surprised when I discovered over the Thanksgiving holiday that Brian Fielkow, owner of Jetco Delivery in Houston, has written a book on leadership and creating a successful company culture entitled “Driving to Perfection.” For those interested, the book is now available for pre-order on Amazon.com through this link.

Brian is both an excellent person and leader, so I am sure his book will be a must read. I highly recommend it.

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Americans Working Longer = More Age Discrimination Cases

Posted on November 22, 2013 by David Barron — No Comments ↓

A recent article from the New York Post highlights the growing statistical evidence suggesting that Americans are working until they are older. As the article explains, “Eighty is the New Sixty.” With baby boomers living longer than any prior generation, they are also working longer. The recession also wiped out many nest eggs that workers were counting on to finance their retirement years. These developments have culminated in a “perfect storm” for a graying of the workforce.

According to the article, by 2020 older workers will be the fastest growing segment of the workforce. Workers over 55 years old will constitute a quarter of the workforce. So what does that mean for employers?

First, it might be a good thing. Many industries have been worried about the brain drain from older workers retiring. That might be delayed. Also, older workers tend to be more loyal and reliable. These are all desired qualities. For workers who slow down or become ineffective, however, employment decisions are fraught with legal risk. A recent UBS Wealth study found that Americans don’t see themselves as “old” until the age of 80. A generation ago, that number was 60. For an employee who does not perceive themselves as old, being told they are too old to perform their job effectively may not go over well. The takeaway from this article is that workers are staying in their jobs longer and may not be as willing to retire quietly once they are no longer able to physically or mentally perform their duties nike air yeezy. It is increasingly important that adverse actions against workers over 40 be scrutinized to make sure that age is not a factor, either directly or indirectly. If it is unavoidable, ensure that you have plenty of documentation of performance deficiencies. Firing a thirty year employee for one mistake won’t be viewed favorably. Similarly, if an employee has physical problems performing a job, consider sending the employee to a doctor for a fitness for duty exam. Managers are not doctors and it is not advisable to conclude that an employee cannot physically perform a job without a qualified opinion on the subject.

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Posted in Discrimination, Labor & Employment, Wage and Hour

Employers Beware: Workplace Bullying Laws On Horizon

Posted on November 22, 2013 by David Barron — No Comments ↓

By Shaan A. Rizvi — Over the last few weeks, sports media have incessantly covered the bullying scandal involving Richie Incognito and Jonathan Martin, two current Miami Dolphins’ players, in which Incognito left threatening and abusive comments on Martin’s voicemail. Incognito contends the comments were in jest, but the comments led Martin to take a leave of absence from the team. Though there are no winners in this situation, the entire incident has stirred spirited discussion about what exactly constitutes “bullying” in sports and in the workplace and what should be done about it.

Currently, California is the only state that legally prohibits workplace bullying. However, according to the Healthy Workplace Campaign, 11 other states are considering similar measures. One such law in New York would make it illegal for an employer, “acting with intent to cause pain or distress to an employee, [to] subject [an] employee to abusive conduct that causes physical harm, psychological harm or both.” The law defines “abusive conduct” as acts “that a reasonable personal would find abusive” including “verbal … or physical conduct of a threatening, intimidating or humiliating nature.”

Clearly, the definition of “bullying” is murky, and laws such as these may drastically increase an employer’s potential workplace liability for perceived slights or insults in the workplace original new balance 410. Even though workplace bullying laws aren’t yet on the books in most states, employers may still be liable for workplace bullying under other legal theories, such as harassment, discrimination or negligent hiring. Remember – what an employee calls bullying, their lawyer will call harassment or retaliation just to get in the door at the court house.

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Tagged with: EEOC
Posted in Discrimination, Labor & Employment

Warning – Holiday Parties Approaching!

Posted on November 19, 2013 by David Barron — No Comments ↓

Although Human Resources is not always the party planning department, perhaps it should be. Holiday parties are a fertile ground for workplace lawsuits, and prudent companies should make sure that they take steps to minimize potential liability air jordan xxx . I was recently interviewed for an article for the Society of Human Resources Management (SHRM) entitled “Out with Mistletoe, Spiked Punch, and Santa’s Little Helpers.” The article can be found here, and is a helpful resource for companies looking for practical tips to prevent the holiday party from turning into a holiday lawsuit.

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Posted in Labor & Employment

Supreme Court Hears First Sarbanes-Oxley Case

Posted on November 13, 2013 by David Barron — No Comments ↓

This week, the Supreme Court heard arguments in its first Sarbanes-Oxley case (Lawson v. FMR LLC, et al., No. 12-3). The question before the Court is whether the law’s whistleblower protections extend to employees of contractors hired by public companies. For example, it is clear that an accounting employee who works for a publicly traded company and reports fraud would be protected from retaliation. What is not so clear is whether an employee of a privately owned outside auditor who contracted with that same publicly traded company would be protected for reporting fraud.

Based on the oral arguments, the Supreme Court appears to be leaning towards a strict reading of the law, which is limited to certain publicly traded employers womens new balance 620. For example, Justice Breyer raised a hypothetical of a small landscaping company who cut the grass one day a week for a publicly traded company, and suggested it would be ludicrous to conclude that this small company was therefore covered by Sarbanes-Oxley.

The takeaway from this case is that we should soon get important clarification on the scope of the Sarbanes-Oxley whistleblower protections. If the Supreme Court chooses to read the statute broadly, the price for doing business with a publicly traded company could include coverage under Sarbanes-Oxley, and expanded compliance obligations. Although such a result is not likely, this is an important case to watch.

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Tagged with: Sarbanes Oxley, SOX, Supreme Court
Posted in Federal Government, Labor & Employment