With the stroke of a pen in July 2015, former Secretary of Labor Tom Perez issued an “Interpretation” of the test to determine if an individual is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The new interpretation determined that “most workers are employees.” Under this interpretation, independent flooring installers had to invest in their business beyond a truck and tools, had to show they had business skill not just technical skills, and could not work more than one or two jobs for a retailer or risk being classified as an employee.
Lowes recently paid $2.2 million to settled a class action lawsuit by job applicants who claimed the information contained in background checks run by the retailer violated the Fair Credit Reporting Act. Similarly, a class action was recently filed in California federal court against Robert Half International Inc.
Many states have scheduled increases in their minimum wage. Fourteen states have announced they will be raising their minimum wages the first of the year. A number of other states will adjust their rate annually based on the cost of living. In addition, some cities, counties, state governments, and companies have higher minimum wage rates than the state minimum.
All companies have trade secrets. It may be a list of customers, the best installers, future opportunities, warehousing techniques or similar information. To protect this important information, it must be kept confidential and limit access to those that need to know.
California’s Prop. 65 prohibits businesses from knowingly exposing California consumers to a chemical known to cause cancer or reproductive harm without first providing a notice of the danger. California's Office of Environmental Health Hazard Assessment (OEHHA) has issued new regulations on what warnings must be made and by whom. The new regulations will take effect on August 30, 2018. In the interim, businesses may choose to comply with either the current or new regulations.
On August 1, 2016, the Department of Labor (DOL) issued updated posting requirements for the Employee Polygraph Protection Act (EPPA) and the Employee Rights Under the Fair Labor Standards Act (FLSA). The DOL updated the posters in part because the penalty amounts in the previous posters need to be updated with the increased amounts. The DOL made other changes in these posters, most notably adding to the FLSA poster:
Certain executive and administrative employees are exempt from being paid for overtime under the federal Fair Labor Standards Act (“FLSA”). One of the requirements is that the executive and administrative employee must be paid a minimum fixed salary. Effective December 1, 2016, the minimum salary requirement will be increased from $23,600 to $47,476. As an example, consider a manager who is paid an annual salary of $37,500. Simply paying for five hours of overtime each week would increase the manager’s pay by over $7,000 under the new rule to $44,531.25.
Fourteen states have announced they will be raising their minimum wages the first of the year.
We continue to see the independent contractor classification under attack. Recently, the Virginia Department of Labor and Industry issued a new policy making construction employers responsible to furnish upon demand proof that its subcontractor have the required licenses. The Virginia Occupational Safety and Health Compliance (VOSH) inspectors will enforce this new policy during periodic inspections.
What do you do with employment applications for candidates that you did not hire? Do you put them in a files or throw then out? The anti-discrimination laws may require you to keep for at least a year these applications, along with resumes, interview notes, drug screens, employment tests, reference checks, and background or credit checks.