By: Christina M. Reger 
 
Well, it’s not like I didn’t warn you that this day was coming. 
 
Today, the United States Department of Labor issued a press release stating that it has signed a three year agreement with the Pennsylvania Department of Labor and Industry to “provide accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law.” 
 
Right… 
 
Dr. David Weil of the U.S. DOL describes the program as follows: “The Wage and Hour Division continues to attack this problem head on through a combination of a robust education and outreach, and nationwide, data-driven strategic enforcement across industries. Our goal is always to strive toward workplaces with decreased misclassification, increased compliance, and more workers receiving a fair day’s pay for a fair day’s work.” 
 
The Press Release can be found here. 
 
For more information on the misclassification issue, click on the DOL resource here. 
 
Think your independent contractors may be misclassified, check out the factors in my July 20, 2015 post. 
 
So what does this mean for you? 
 
Big brother is not just watching, but he’s coming to a theater near you. If you have independent contractors and you have not evaluated whether they truly are independent contractors, now is the time, lest you be buying Uncle Sam a big bucket of popcorn to join you for the double feature. 

By: Christina M. Reger 
 
Maybe they don’t have enough to do, or maybe they need to increase revenues, whatever the reason, the EEOC last week issued a Fact Sheet to educate younger workers on their rights and remedies regarding religious discrimination. 
 
Specifically, the Fact Sheet was “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.” The EEOC press release can be found here. 
 
Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes.  

What does this mean for me, the employer? 
  
It means that whatever your employee’s religious beliefs are, or no matter how crazy they seem, as long as they are “sincerely held,” they are protected. 
 
But, it is the employee’s burden to let the employer know that he/she needs a religious accommodation. 
 
So, if you can accommodate the request without much disruption — even if it sounds crazy –, do it and avoid potentially bigger problems. And, remember, retaliating against someone who complains about religious discrimination could also land you in hot water. 

By: Christina M. Reger 
 
Last week, while most of you were taking off early to begin your holiday weekend, the Department of Labor, along with the Department of Education was busy publishing new rules to make your lives all a little more interesting. The Workforce Innovation and Opportunity Act (WIOA), “is landmark legislation that is designed to strengthen and improve our nation’s public workforce system and help get Americans, including youth and those with significant barriers to employment, into high-quality jobs and careers and help employers hire and retain skilled workers.”  

 
As summarized in the Press Release, “The rules reflect input from stakeholders including employers and community leaders and details what the goals of a modern, agile, effective workforce should be, and how partners can work to achieve those goals. These rules aim to spur growth in local and regional economies; streamline and improve the coordination of employment and training services across federal agencies; and strengthen collaboration between the federal government, employers, states and municipalities.” 
 
As always, there are plenty of resources in case you are having trouble sleeping one night: Fact Sheets - one, two and three; and the ever popular Frequently Asked Questions. There is also a Quick Reference Guide for the DOL Rule only. 
 
But Tina . . . what does this all mean to me and what do I have to do now?? 
 
Read it all and find out! That’s what my mom used to say! 
 
The answer is: it remains to be seen. These new rules are designed to HELP business identify and employ more qualified skilled labor. Let’s see how it actually develops. 
 
Oh, and You’re Welcome. 

By: Christina M. Reger 

Last week, the EEOC published a proposed Guidance on national origin discrimination. 

The Guidance discusses hiring and firing decisions as well as harassment and language issues. A copy of the policy is attached here. Public comment is available for 30 days. 

By: Christina M. Reger 

The Department of Labor (DOL) has announced the new overtime rules (amendments to the Fair Labor Standards Act (FLSA) to be technical). 

After receiving more than 270,000 comments to the proposed regulations published last July, President Obama and the DOL announced the new rule yesterday. The Final Rules focus primarily on increasing the salary levels for Executive, Administrative and Professional workers to be considered “exempt” from the overtime rules. 

The DOL has summarized the major changes as follows: 

1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker); 

2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and 

3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption. 

4. Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. 

Does this apply to my business? The FLSA applies to generally to employees of enterprises that have an annual gross volume of sales made or business done of $500,000 or more. In addition, employees of certain entities are covered by the FLSA regardless of the amount of gross volume of sales or business done. These entities include: hospitals; businesses providing medical or nursing care for residents; schools (whether operated for profit or not for profit); and public agencies. 

What does this mean for my business? If you have salaried employees between the current overtime threshold of $23,660 and the new threshold of $47,476 you must examine these positions and you will likely need to re-classify these positions as hourly. If these people typically work more than 40 hours per week, keep in mind that you will have to pay them time and a half for hours over 40. 

Do I have to take action now? The sooner the better. Based on the number of employees / types of employees that you have, you may need to restructure your workforce, hire additional people or change the way in which your company does business. 

Also, keep in mind that while these rules were intended to benefit the American worker, changing employees who previously were salaried and now telling them they need to punch a time clock, could have a significant impact on employee morale. 


But I don’t have time to read all of that! Where can I get help? If there was ever a time to consult with an employment lawyer, particularly one that works with small and mid-sized businesses, now is the time. I am offering one- and two-hour consultations to assist businesses is understanding how to implement the Final Rule for their business. Please contact my office to set up an appointment. 

By: Christina M. Reger 

In a recent press release, the EEOC published a one-page fact sheet designed to help small business owners better understand their responsibilities under the federal employment anti-discrimination laws. 

The fact sheet is the first in a series of publications anticipated by the Small Business Task Force to provide crucial information to small business owners to assist them in complying with our workplace anti-discrimination laws,” said EEOC Chair Jenny R. Yang. “The Task Force is working to ensure that small business owners have the tools they need to ensure equal employment opportunity in their workplaces.” 

The fact sheet summarizes what the EEOC enforces, what businesses the laws cover (for most of you that would be private employers that employ at least 15 employees), and then walks through the process of what happens when an employee files a charge, how the EEOC investigation is conducted and concludes by summarizing the possible outcomes of such an investigation. 

By: Christina M. Reger 

In its continued efforts to protect vulnerable employees, on December 23, the EEOC released a statement and two resource documents, in question-and-answer format, explaining federal laws prohibiting employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. The documents come “in the wake of tragic events at home and abroad” and urge employers to take “steps to issue or re-issue policies on preventing harassment, retaliation, and other forms of discrimination in the workplace” and “remain vigilant and to communicate their commitment to inclusive workplaces throughout their organizations.” 

The Press Release can be found here: 

http://www.eeoc.gov/eeoc/newsroom/release/12-13-15.cfm 
 
The employer question and answer, which provided advice on hiring and other employment decisions, harassment, religious accommodation, background checks and retaliation, can be found by clicking here: 

http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employers.cfm 
 
The EEOC also provided links to additional EEOC resources for employers: 
EEOC Compliance Manual on Religious Discrimination 

http://www.eeoc.gov/policy/docs/religion.html 
Best Practices for Eradicating Religious Discrimination in the Workplace 

http://www.eeoc.gov/policy/docs/best_practices_religion.html 
 
Since you do not always know what a person’s religious affiliation or national origin, it might be a good idea to evaluate, update if necessary, and reissue your discrimination policy. The EEOC also recommends training to reinforce the policies. 

By: Christina M. Reger

On Wednesday, Mayor Nutter signed an Executive Order amending the Fair Criminal Screening Ordinance, better known as Ban the Box. The amendments are intended to “encourage employers to consider the whole person and the gravity of the offense.” In signing the amendments, Mayor Nutter proclaimed, “everyone deserves an opportunity to work and to provide for their families and should not be discriminated against because of previous bad decisions.”

Under the Order, no city agency or private employer with at least one employee can ask about criminal backgrounds and arrests on a job application. The employer may conduct a background check following a conditional offer ofemployment. However, if the background check indicates a conviction in the past seven years, the employer must consider the nature of the crime, the time that has passed since the offense and the duties of the job in making the determination on whether toextend a firm offer.

Other key provisions of the amendment include:Employers may conduct a criminal background check only after a conditional offer of employment has been made.

The Ordinance is applicable to all employers, public and private, with oneor more employees.

Employers must consider guidelines when determining whether to disqualify an applicant on the basis of his or her criminal record.

An employer can only examine a criminal record going back seven years, excluding periods of incarceration.

Employers must notify the applicant in writing if they are rejected and provide the applicant with a copy of the criminal history report. Applicants have 10 business days following the rejection to provide evidence of an inaccuracy on the report or to provide an explanation.

Applicants have 300 calendar days to file a complaint with the Philadelphia Commission on Human Relations.

If you are planning on hiring in the new year, you need to consider this Order, even though it does not take effect for 90 days. Oh and don’t forget the Fair Credit Reporting Act, which is the federal regulation addressing background checks. Lastly, if you have an employee handbook, it should be updated to address these revisions. If you do not have an employee handbook, . . .well, we should talk.

By: Christina M. Reger 
 
A recent survey published by Hiscox compiled data on employment charge activity from the Equal Employment Opportunity Commission (EEOC). The report provided some concerning statistics for small and mid-sized business owners. 
 
The report concluded that 19% of all charges resulted in a defense and settlement. Conversely, the 81% that did not result in payment does not mean that such matters did not involve the legal cost to defend the EEOC charge. 
 
Equally significant, the average cost to defend and settle an EEOC charge was $125,000, and the median judgment is approximately $200,000. That is not an insignificant sum to a small business owner. Oh, and the $200,000 judgment amount does not include the legal defense costs to litigate the charge. 
 
Lastly, the report noted that the average duration of an employment claim is 275 days. 
 
What does that mean for you? 275 days of business disruption, staff that must be pulled off of their regular duties to gather documents and prepare them, you or members of your staff meeting with lawyers, time away from the business for meetings, conferences or settlement negotiations, preparing for hearings and then eventually you (and possibly members of your staff) missing work to testify. What else does it mean? An opportunity for 275 days of bad press in print and on social media for your business. 
 
Oh, and at the end, you have to pay the attorney and possibly the employee. 
 
So how can you prevent or, at the very least, mitigate such events from happening to you? 
 
It starts in the hiring process. Making sure your hiring policies are up to date and that they comply with federal, state and local laws. 
 
Then once the employee is hired, they should be provided with an up-to-date, customized employee handbook (not the freebie you downloaded from the internet) which summarizes your company’s policies and procedures on issues such as discrimination, harassment, and a thorough complaint policy, to name just a few. If you don’t have a handbook or yours has collected dust on your shelf, I suggest you contact an employment attorney. 
 
Lastly, train your employees on these policies as well as educate them on how they can report such issues internally — so that you can address the issues before you get those papers from the EEOC. 
  

By: Christina M. Reger 

Last week, President Obama banned the box for federal employees. So what does that mean? And more importantly, does it apply to me? 

As the President explained it, Ban the Box “delay[s] inquiries into criminal history until later in the hiring process.” The President’s Order follows a multitude of states including New Jersey, and municipalities, including Philadelphia, that have already adopted similar laws. The theory behind Ban the Box legislation is that individuals with criminal records are not weeded out of the hiring process at the application stage. 

The hope is that once an employer has an opportunity to interview the individual, they might extend an offer that they otherwise might not have done. Such measures would benefit all of society as such individuals are reintegrated into society. 

Does it apply to me? 

Well that depends. If you are a New Jersey or Philadelphia employer, the answer is YES. If you are an employer in the greater Philadelphia area, Delaware, Montgomery, Chester, or Bucks County maybe. I recommend if you hire from NJ or Philadelphia, or you conduct business in either location, that you comply. It is only a matter of time until these laws apply to you as well. 

Lastly, a word of advice. Getting an application off the internet or from the big box office supply store does not guarantee that the application is compliant with the local or state laws. If you are planning to hire permanent, temporary or seasonal employees, you must comply with these laws. If you have questions, you should speak to a good employment attorney – I can recommend a good one if you need a recommendation.