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I9 Update - Is Your Business Ready?

The federal government recently issued a new I9 form that must be used for all hires starting Sept. 18, 2017.

The new I9 is slightly updated, but still looks much like the old one. What's the easiest way to tell them apart? The new I9 has the date "07/17/17" in the lower left-hand corner. Be sure your business is using the new I9, or you could face fines of almost $2,200 for each non-compliant form!

Any questions, reach out to Spencer Phillips at Employer-Lawyer, PLLC today!

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NEW OVERTIME RULES BITE THE DUST!

Just yesterday, a federal judge struck down the highly-controversial new overtime rules proposed by the Obama administration, which would have boosted the minimum pay threshold for "salaried" employees from $23,660 to $47,476.  Business owners can now breathe a collective sigh of relief!

The new US Department of Labor Secretary, Alexander Acosta, plans to revise those rules and propose a new 'middle-of-the-road' threshold -- higher than the current law, but not as high as many business owners once feared. 

Stay tuned to Employer-Lawyer's HR Law Blog for further updates!

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Extra! Extra! New Overtime Rules in Utah

Moments ago, a federal judge in Texas put a temporary hold on the new Overtime Rules. This means the December 1st compliance deadline will now be pushed back to 2017.

Stay tuned for the latest HR Legal news from Employer-Lawyer!!!

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ACT NOW - Overtime Laws Are Changing!!

On December 1st, the U.S. overtime laws will change dramatically - giving more money to employees (supposedly) and more headaches to employers (definitely!).  Is your business ready for the new legal rules?  If not, now is the time to prepare!  Follow these steps today:  

1.  AUDIT: Work with your HR team or Employer-Lawyer to audit the salaries and duties of all employees.

2.  IDENTIFY: Determine which persons/positions will be affected by the new federal overtime pay rules.

3.  CHANGE: Adjust salaries, work schedules, employee count and employee status (exempt vs. non-exempt, salaried vs. hourly) to ensure compliance with the new overtime rules before they take effect.  

4.  TRAIN: Teach employees, supervisors and managers how to comply with the new overtime rules to keep themselves (and your business) out of trouble.

TAKE-AWAY: Time is running out.  ACT NOW to ensure your business is in compliance with the new federal overtime pay rules.  Call Employer-Lawyer today!

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Texas, Utah, Nevada - Oh My!!!  States Sue Feds to Stop Overtime Rule

On December 1, 2016 (less than 70 days from now), employers across America will be forced to begin paying overtime wages to all employees who earn less than $47,476 per year.  If this is news to you, click here to learn more!

However, just this week, a coalition of 21 states (Utah included) sued the federal government in a last-ditch effort to stop the overtime rules from taking effect.  In this lawsuit, the states argue that the new overtime rules are invalid, unconstitutional, and must be struck down.  While no one can predict who will ultimately win this courtroom battle, there is a small chance the lawsuit will put the new overtime rules "on hold" until 2017.... or beyond. 

TAKE-AWAY: The new overtime rules are just around the corner.  The time to prepare is NOW.  Consult with your HR department or Employer-Lawyer, PLLC to make sure your pay practices are (and remain) in compliance with federal law.

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Time-Off to Vote:  What Employers Need to Know

In less than three months, polls across the country will open for the 2016 U.S. Presidential election.  Business owners are asking, “Do my employees get time-off to vote?” 

There is no federal law giving employees time-off to cast their votes.  However, many states have passed laws giving time-off (both paid and unpaid) to vote.  To learn more about the specific law in your state, check out this link: http://www.findlaw.com/voting-rights-law.html

Utah law is more complex than most other states.  Employees in the Beehive State have a right to take up to two (2) hours of paid time-off to vote, unless the employee has a three-hour window when the polls are open and the employee is not required to be at work.  Also, Utah law requires employees to request time-off before Election Day.  Finally, if an employee asks for time-off to vote at the beginning or end of the work shift, that request must be approved.

TAKE-AWAY:  Election Day is just around the corner.  Now is the time to consult with your HR department or Employer-Lawyer to make sure you and your employees understand the law and are ready to cast your vote!

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Probationary Periods: Good for Employees, Bad for Business

Utah is an “at-will” employment state.  This means employees are free to quit their jobs at any time, for any reason, or for no reason at all.   Likewise, Utah business owners also have the right to fire “at-will” employees at any time, for any lawful reason, or for no reason at all.

Probationary Periods for newly-hired employees can be dangerous for your business because they interfere with the “at-will” status.  For example, if you hire an employee under a “probationary period,” what happens when that period ends?  If the employee is no longer probationary, the employee may believe they now have job security as a “permanent” employee.  Even worse, if you try to fire that employee, they can make a strong argument in court that they are no longer “at-will” because they successfully completed the probationary period.

TAKE-AWAY:  Business owners should partner with legal counsel to carefully review their Employee Handbooks and hiring practices to ensure (1) there is no language or procedure conveying an actual or implied “probationary period,” and (2) that the “at-will” nature of employment is explained to newly-hired employees multiple times in clear, unmistakable language.

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EEO Posters: Is Your Business Ready for Increased Penalties?

Most business owners know that the law requires them to hang an Equal Employment Opportunity ("EEO") poster in their workplace. But did you know the federal government is more than DOUBLING the penalty for businesses who ignore this posting rule? The fine for non-compliance used to be $210. Soon, businesses who do not have the required posters hanging in the workplace will face penalties up to $525 for each violation. The new posting penalties take effect next month (July 2016).

TAKE-AWAY: Business owners should immediately partner with legal counsel or HR to (1) evaluate their current posters, (2) print and hang updated posters if needed, and (3) ensure posters are in a "conspicuous" place as required by federal law. Businesses with employees who rarely visit the physical workplace may also need to distribute the EEO poster electronically. You can download and print "EEO Is The Law" posters from free at this address - https://www1.eeoc.gov/employers/poster.cfm. 

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Due Date: Announcing the arrival of Utah’s newest pregnancy law! 

Savvy business owners already know that Utah law prohibits discrimination against employees because of pregnancy.   However, the Utah legislature recently decided to take the law one step further.  Beginning May 10, 2016, Utah businesses with at least 15 employees are required to provide reasonable accommodations to employees for conditions related to pregnancy, childbirth or breastfeeding (i.e., modifying the employee’s job duties; providing a private room for expressing breast milk; changing an employee’s work schedule; more frequent restroom/water/food breaks).  In those rare cases where an accommodation would be very expensive or difficult, businesses owners may avoid legal liability by working with the employee to find a more reasonable alternative accommodation.  Additionally, the new law requires Utah businesses to update their handbooks with a clear description of employee rights under this new law, or to post a notice in their workplace describing these same rights. 

TAKE-AWAY: Immediately partner with HR or your legal counsel to update your company’s Employee Handbook with a full description of new employee rights under the pregnancy discrimination law.  If you do not have a handbook and do not want a handbook, work with HR or legal counsel to prepare a compliant “Notice” to remain posted in your workplace at all times.

 

 

 

 

 

 

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March Madness: EEOC Files Lawsuits for “Sexual Orientation” Discrimination

March Madness is in the air.  Not only are top college hoops teams dueling it out on courts across the country, but the federal government is creating its own court(room) brand of March Madness.   

On March 1, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) filed two lawsuits claiming “sexual orientation” discrimination.  The funny thing is – the lawsuits rely on a law that says nothing about sexual orientation!  Can you feel the “madness” setting in?  Just think of it - the federal government hauling two private companies to court and forcing them to defend themselves (with untold dollars and hours) against charges that they broke a law that does not really exist!  It’s no exaggeration to say the EEOC is dancing over the brackets to get to the Championship Game in center court!

Regardless of what your business thinks about the EEOC’s game-time strategy, it is time go get your A-game on:

1.     Take a Time Out: Review your handbook/EEO policy, and make sure it prohibits discrimination based on sexual orientation.  If “sexual orientation” is missing from your list, update it now.

2.     Make a Game Plan: Train your supervisors and managers.  Make sure they are familiar with your EEO policy and the various options for employees to complain about any kind of discrimination. 

3.     Execute: Investigate employee complaints with a full-court press.  Ignoring a complaint or delaying your investigation could get your business kicked out of the party.

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One Year Max: Utah's New Non-Compete Law

Last week, the Utah legislature passed a new law limiting non-compete agreements to a maximum duration of one year.  Going forward, new non-compete agreements longer than one year are automatically void, and businesses who try to enforce those agreements may be required to pay legal expenses and other damages to their former employee.  Luckily, the new law does not affect confidentiality agreements, non-solicitation agreements, non-disclosure agreements, severance agreements or non-compete agreements involved in the sale of a business. 

TAKE-AWAY: Non-compete agreements are still valuable tools for Utah businesses hoping to protect their confidential and proprietary business information.  However, businesses should partner with legal counsel to review their current non-compete language and to make any necessary revisions to ensure future compliance.

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No Joke, California: New Discrimination Regulations Start on April Fools' Day

On April 1, 2016, California’s Fair Employment and Housing Act (“FEHA”) will be updated with new regulations.  Some of the changes create new rules, some just formalize rules that are already in place.  If you’re not in the mood to read the 90-page, red-lined amendments (www.dfeh.ca.gov/res/docs/FEHC/FinalText.pdf), here are 10 take-aways to consider on the hot topics of mandatory training, sexual harassment, and pregnancy:

1.  All businesses with five or more employees must have a FORMAL, WRITTEN POLICY against discrimination, harassment and retaliation that lists all categories of discrimination protected by CA law AND states that the policy applies not only to supervisors and managers, but also to co-workers and third-parties AND establishes an internal complaint process containing six specific elements AND allows employees to complain to someone other than a direct supervisor AND identifies a specific person/position at the business to whom employees can always complain or provides contact information for state and federal agencies that police discrimination AND requires supervisors to report all complaints of misconduct AND requires employers to conduct fair, timely and thorough investigations of all complaints AND expressly acknowledges the importance of, and limits to, confidentiality AND requires disciplinary action to be taken in appropriate circumstances AND expressly prohibits any retaliation against employees who make complaints or otherwise participate in any investigation.

2.  The new (or revised) policy described above must be distributed to all employees and acknowledgment of their receipt must be recorded and kept by the business.

3.  Businesses must prove that they are providing bi-annual harassment training for “supervisors” by collecting and retaining for two years: name of employees who attended the training; date of the training; sign-in sheet; certificates of completion; description of training; copy of any written or recorded materials that comprise the training; and the name of the professional trainer.

4.  Bi-annual harassment training requirements for supervisors have been expanded and must now include the following additional topics: review of “abusive conduct” in the workplace; methods for addressing and correcting wrongful behavior; remedies available to employees through filing lawsuits; potential exposure/liability of the business and the harassing individual; obligation of supervisors to report harassment; and business’ obligation to conduct an effective workplace investigation.

5.  The purpose of sex discrimination laws in California has been expanded to specifically protect “gender identity” and “gender expression.”

6.  Employees claiming sexual harassment do not need to (1) prove that “sexual desire” was the reason for the offensive conduct, (2) show that something bad happened to them at work because of the alleged harassment, or (3) even claim that that harassment happened to them personally – they can make their own claim based on harassment they saw happening to someone else!

7.  Businesses can be held liable for sexual harassment committed by a non-employee (i.e., a vendor, a contractor, or even a visitor to the business) against another non-employee (i.e., unpaid interns, volunteers).

8.  Individuals, regardless of whether they are supervisors or entry-level employees, can be personally liable for harassing their co-workers.

9.  Businesses are strictly liable for harassment committed by supervisors or managers. This means if a supervisor or manager engages in unlawful harassment, the business loses.  Period.  End of story.  Pull out the check book.

10.  Employers must post notices in the workplace that explain the FEHA law and provide information on how to make complaints of unlawful discrimination. The notice, and the text on that notice, must be large enough to be easily read and all text must remain fully legible at all times.  Businesses must also give a copy of this notice to any employee who tells her employer that she is pregnant, or to any employee who even asks about reasonable accommodation, transfers, or pregnancy disability leaves.

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"Reverse Discrimination" Over The Mighty Mississippi River

In February 2016, a federal appeals court (7th Cir.) opened the floodgates of a stagnant "reverse discrimination" case.  Crane Operator Terry Deets (White) was hired to help a trio of construction companies build a bridge across the mighty Mississippi River.   Two months later, Mr. Deets was fired and replaced by a Black crane operator.   Mr. Deets claims his boss told him that he was being fired because the federal government required them to have more minority workers on the job, but the boss denies making that comment.  The case will now go to trial court to resolve the swirling he-said/he-said dilemma. 

TAKE-AWAY: The current of discrimination flows both ways.  Everyone is protected from discrimination, regardless of race, color, gender, etc.  Make sure your employees and managers receive annual discrimination/harassment training to help keep them (and your business) out of trouble!

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Welcome to the HR Law Blog!

This HR Law Blog is dedicated to keeping businesses up-to-date on the crazy and ever-changing world of employment law.  Check back often for the latest news stories, legal insights, and professional pointers to help keep your business out of trouble.

Spencer Phillips, Attorney