"Winning" An Employment Dispute?


Just look at the headline of this article:

“Wal-Mart Workers Win $62 Million”

What is wrong with this headline and picture?

Everything.

“The Lotto Mentality” has officially infected our business culture, to the determent of business owners and to the employees who truly deserve compensation for wrong.

Employees First

Dave Berkus is an accomplished speaker, author and angel investor.  He provides common sense advice to all businesses through his blog, Berkonomics.

His recent post deals with the frustrations of business owners who perceive that government regulations always favor employees.  His advice?  Recognize the realities of the times.

He’s right!

Workplace Litigation Trends Report

This is the 7th year that Fulbright & Jaworski has surveyed senior corporate counsel regarding litigation.  I’m focusing on the responses that affect businesses – and selecting those answers.  The results are illuminating!

In which area is there the most litigation pending in the U.S.?

Contacts: 53%
Labor & Employment: 49%
Personal Injury: 27%
(participants could pick more than one type)

In which area has there been the greatest increase in multi-plaintiff cases whether they be class, collective action, or significant multiple plaintiff action?
Wage & Hour: 46%
Labor Union: 13%
Age: 11%
ERISA: 10%


[What types of cases] will see the greatest increase in 2011?
Discrimination: 39%
Wage & Hour:35%
Labor Union: 17%

ERISA: 5%

Firing an "At-Will" Employee

Gina Madsen is one of the really bright small business attorneys in Nevada.  She recently asked me to write an article on a ‘real-life’ situation – and I chose the concept of firing an at-will employee.

Even though most states abide by at-will concepts (you can fire an employee at any time for any reason – other than a few exceptions), there are many compliance and management principles that should be followed.

Here’s the blog on her great website – http://www.madsenlawoffice.com/

Overtime Gets A Little More Complicated in California

An employee makes a false claim for overtime. He says it’s a mistake, but you believe otherwise, so you fire him.

That’s OK, right?

Uh..not so fast. A new court decision, Barbosa v. Impco Technologies, makes that a wrongful termination.

Here’s the recap and implications from Christopher W. Olmsted of Barker Olmsted & Barnier.

California Alternative Workweek Schedules

One of the best ways of improving morale without costs is to consider Alternative Workweek schedules.  Up until January 1, it has been most difficult to implement.  However, California law regarding alternative workweek schedules have been eased somewhat as a result of AB 5.

Alternative workweek schedules allow non-exempt employees in a “work unit” to work in excess of 8 hours per day without incurring overtime. (California law includes a daily overtime requirement.) Generally, an employer may propose AWS work schedules of up to ten hours per day (12 for healthcare workers). Hours in excess of 10 per day, or 40 per week are overtime. Typically employers propose schedules consisting of four ten hour days or a “9/80” schedule. Special procedures describe advance disclosure and a secret ballot election prior to implementation of the AWS.

The AWS can apply to a “work unit” within a company, rather than to all employees. Previously, the Labor Code did not define “work unit,” although state regulations included a definition. The new law defines a work unit as “a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof.” The amendment also clarifies that even a single employee may qualify as a work unit as long as his job function meets the definition.

In setting up an AWS, an employer may propose a single work schedule, or it may propose a menu of work schedule options for workers to select. Can the “menu” include a traditional 5 day week for those employees who do not want to work longer days? The amended law clarifies that the menu options may indeed include a regular schedule of five eight-hour days in a workweek. Consequently, employees who do not wish to work an AWS schedule may still vote in favor of the AWS by choosing to work the regular 8 hour day. This change greatly increases the odds of achieving the 2/3 employee supporting vote need to implement an AWS.

Additionally, the new law specifies how often employees may move from one schedule option to another on the menu. For example, if an employee opts to work four 10 hour days, how frequently can he opt to go back to regular 8 hour days? As amended, Labor Code § 511 allows employees to move from one schedule option to another on a weekly basis.

Independent Contractor or Employee? Better Be Sure, And Fast!

Many employers incorrectly classify an employee as an independent contractor.  Some employers do it intentionally (to avoid workers’ compensation and payroll taxes); but most are unaware of what the difference in classification actually is.

If you use Independent Contractors (also known as 1099’s), you better audit all of them at once.  The IRS is about to launch comprehensive audits of 6,000 businesses.  The focus is – you guessed it – properly classifying employees.

Please take a moment to review the criteria the IRS uses to determine whether a person should be classified as an employee or Independent Contractor.  It’s about control.  I’ve had clients insist a person is classified as a 1099 simply because that person requested classification that way! (That’s wrong as well, by the way).

Get a qualified consultant or employment attorney to audit your practices and procedures as soon as possible.

Courtesy Baker Hostetler