HR 201: Beyond HR Boot Camp

Denise Blommel

AttorneyDenise M. Blommel, PLLC7272 E. Indian School Road,

Suite 206Scottsdale, AZ 85251

480-425-7272

denise@azlaborlaw.com

www.azlaborlaw.com

DocumentDocumentDocument

HR 101

Accurate andUp-to-DateEmployeePosters and Forms

HR 101

Accurate andUp-to-DateEmployeePolicies

HR 101

Employment Law Update

What’s new for 2013?

Patient Protection andAffordable Care Act

“Obamacare”

Employer Reprieve

Play or PayON HOLD UNTIL 2015

PPACA Elements

• Still in effect– Notices due by 10/1/2013 by ALL FLSA employers– Changes in W-2 and other taxes before 2014

• Postponed to 2015– Count your employees – how many do you have?– Do you offer group health insurance?– If so, when and to whom do you offer it?– If so, does it have minimum essential coverage?– If so, what % premium do you cover?– Are you aware of penalties?

AggressiveFederal

Agencies

Section 7 Protected Concerted ActivitiesNational Labor Relations Act

WagesHours

Working ConditionsConcerted =More than OneNonsupervisory Employees

Protected Concerted Activities

• Employee Handbooks–Employment at will language–Social media–Confidentiality

•Investigations

Employment at WillCan it be changed?

Confidential InformationWhat is a secret?

Investigators Beware!

Social MediaEverybody’s a Publisher!

Protected Concerted Activities NLRB and Social Media

Who is Reading Your Page?What if you say a customer frustrates you and

that customer is a “friend” or has a “friend” who tells the customer about your posting?

What if you “friend” your boss’s boss and you say that your boss is a jerk?

What if you say that you work for the Company and it is the best [fill in the blank] in the USA?

What about supervisors who give references for former employees that you fired?

What about “checking out” job applicants on social media?

Technology Policy

• Written• Consistently enforced• Covers all data and devices, including BYOD• Incidental use of Company equipment• Social media usage at work and at home• Updated with the law and changing technology• Security of Company technology

Social Media – Policy Must HavesSee also General Session Class

Social media use must not interfere with work duties/performanceDo not use social media to harass or discriminateDo not share trade secrets, proprietary or confidential informationEthical standards - remind employees of your Code of ConductThe Company owns the computer, monitors use, monitors emails, no right

or expectation of privacy. Non-disparagement? You cannot prevent employees from talking about

their work conditions. Enforce consistently (justify exceptions)May be disciplined up to and including termination for violationCANNOT VIOLATE THE NATIONAL LABOR RELATIONS ACT!

US Department of LaborArizona Initiative

• Independent contractor vs. employee

• Exempt vs. non-exempt

• Working off the clock

• Three year minimum wage records on audits

• Emphasis on certain industries

Independent ContractorRight to Control or Common Law Test

• Control over process; not just outcome

• Distinct occupation or business

• Need for supervision

• Level of skill

• Provision of tools, supplies and place of work

• Duration of service

• Method of payment

• Regular business of employer

• Intent of the parties

• Is hiring entity in business?

Independent ContractorEconomic Realities

• Totality of circumstances• Is worker dependent on employer?• Worker’s services integral part of business?• Permanency of relationship• Amount of worker’s investment• Right to control• Opportunities for profit and loss• Level of worker’s skill

Independent ContractorAZ Worker Compensation - Hybrid

ARS 23-902D– Written, signed, dated, no duress agreement– No authority to supervise or control– Disclosure that no worker comp benefits– No requirement of exclusive work; no combination of

business operations– No provision of required licenses– Fixed amount by contract; not wage/salary – paid to

name on contract– Termination restrictions– No tools or time of performance dictated

Arizona and Federal Wage and Hour Law

FLSA Overtime

• 40 hour workweek

• Definition of working time

• Compensatory time only in public sector

• Wages and salaries• Why not pay salaries to non-exempts?

• How to pay overtime in 29 CFR 778

• White Collar Exceptions in 29 CFR 541

Arizona Wage and Hour Laws

• Wage definition – whatever is expected • Minimum Wage – now at $7.80 per hour• Timing of pay – at least twice monthly • Type of pay – cash or check • Paycheck deductions – need employee signature • Payment upon termination – 7 working days if fired; next regular payday if quit • Wage claims – election of remedies • Recordkeeping – all employees must do

Typical Wage and Hour Problems

• Assumption that business is exempt

• Assumption that employee is exempt

• No pay for unauthorized overtime

• No overtime pay for salaried non-exempts

• Illegal deductions from pay

• Inaccurate recordkeeping

• Not paying for all hours worked

Nursing Mothers Break

• PPACA amendment to FLSA• Only applies to non-exempts• First year after baby arrives• Unpaid 30 minute break to express milk• Can be combined with paid breaks• Private place to have the break• More protection if 50+ employees

Family Medical Leave Act

FamilyMedical Military

FAMILY MEMBERS

New posterNew coverageStrict liability if make any mistakes

EEOC 2013 Priorities

• Eliminating barriers in recruitment & hiring• Protecting immigrant, migrant & vulnerable workers• Addressing emerging issues (e.g. LGBT) • Enforcing equal pay laws• Preserving access to the legal system• Prevention of harassment through systemic

enforcement and targeted outreachAND• Publicly collecting money from employers!

EEOC ChargesFY 2012 in Arizona

• Retaliation – all 40.4%• Retaliation – Title VII 30.8%• Disability 30.3%• Sex 29.4%• Age 25.3%• Race 21.1%• National Origin 15.3%

GINA Inadvertent DisclosuresGINA Safe HarborRequest for medical information

FMLA, Fitness for Duty, worker comp, examinations Go through HR Use Safe Harbor Disclaimer

Overhearing conversationCasual conversation – do not pry!Unsolicited email or letterVoluntary wellness program Internet and other mediaCannot troll for genetic data on social media or

InternetCases are now being litigated by EEOC

Sexual OrientationTitle VII does not protect, but stereotyping/gender nonconformity may offer

protection21 states and the District of Columbia have laws that prohibit sexual

orientation discriminationCity of Phoenix ordinance – new in 2013

2013Supreme

Court Cases

Vance v. Ball State UniversityFisher v. University of TexasDOMA and Proposition 8 cases

U.S. Supreme CourtRetaliation Cases

University of Texas Southwest Medical Center v. Nassar (2013)

Staub v. Proctor Hospital (2011)Thompson v. North American Stainless

(2011)Burlington Northern v. White (2006)

OSHA

www.whistleblowers.gov21 Federal Laws

TransportationConsumer/investorNuclear/environmental

Unemployment Insurance

Employee’s Burden of Proof

Medical Marijuana

• No tolerance?• Medical Marijuana and HB 2541

• Testing• Arizona Drug Testing of Employees Act

• Results of testing• Cardholder? Safety Sensitive? Impaired?

• Disciplinary process

Proposition 203Arizona Medical Marijuana Act

• No smoking in public place– DHS rules on public place– What about food ingestion?

• No operation of vehicles• No negligence or malpractice• No discrimination

– Unless lose federal license or benefit

• Can prohibit ingestion at work• Positive test insufficient to prove impairment

HB 2541Effective April 12, 2011

• Extends Drug Testing of Employees Act to public employees• Defines impairment• Defines safety sensitive positions

– Member interface covered– Employer can exclude medical marijuana user

• Defines good faith• Permits employers to take action based on good faith and

receive Act’s protection from litigation• Permits employers to check DHS verification system

Resources

• www.azlaborlaw.com

• www.dol.gov/whd

• www.healthcare.gov/law

• www.eeoc.gov

• www.nlrb.gov

• www.osha.gov

•http://www.irs.gov/uac/Affordable-Care-Act-Tax-Provisions

• Arizona Employment Law Handbook

–State Bar of Arizona at www.azbar.org

• www.ica.state.az.us

Questions?