HR 201: Beyond HR Boot Camp
Denise Blommel
Attorney
Denise M. Blommel, PLLC
7272 E. Indian School Road,
Suite 206
Scottsdale, AZ 85251
480-425-7272
denise@azlaborlaw.com
www.azlaborlaw.com
HR 101
Document
Document
Document
HR 101
Accurate and
Up-to-Date
Employee
Posters and Forms
HR 101
Accurate and
Up-to-Date
Employee
Policies
Employment Law Update
What’s new for 2013?
Patient Protection and
Affordable Care Act
“Obamacare”
Employer Reprieve
Play or Pay
ON 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?
Aggressive
Federal
Agencies
Section 7 Protected Concerted Activities
National Labor Relations Act
Wages
Hours
Working Conditions
Concerted =More than One
Nonsupervisory Employees
Protected Concerted Activities
•
Employee Handbooks
–Employment at will language
–Social media
–Confidentiality
•Investigations
Employment at Will
Can it be changed?
Confidential Information
What is a secret?
Investigators Beware!
Social Media
Everybody’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 Haves
See also General Session Class
 Social media use must not interfere with work duties/performance
 Do not use social media to harass or discriminate
 Do not share trade secrets, proprietary or confidential information
 Ethical standards - remind employees of your Code of Conduct
 The 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 violation
CANNOT VIOLATE THE NATIONAL LABOR RELATIONS ACT!
US Department of Labor
Arizona 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 Contractor
Right 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 Contractor
Economic 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 Contractor
AZ 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
Family
Medical
Military
FAMILY MEMBERS
New poster
New coverage
Strict 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 outreach
AND
• Publicly collecting money from employers!
EEOC Charges
FY 2012 in Arizona
•
•
•
•
•
•
•
Retaliation – all
Retaliation – Title VII
Disability
Sex
Age
Race
National Origin
40.4%
30.8%
30.3%
29.4%
25.3%
21.1%
15.3%
GINA Inadvertent Disclosures
GINA Safe Harbor
 Request for medical information
 FMLA, Fitness for Duty, worker comp, examinations
 Go through HR
 Use Safe Harbor Disclaimer
 Overhearing conversation
 Casual conversation – do not pry!
 Unsolicited email or letter
 Voluntary wellness program
 Internet and other media
 Cannot troll for genetic data on social media or Internet
 Cases are now being litigated by EEOC
Sexual Orientation
 Title VII does not protect, but stereotyping/gender nonconformity may offer
protection
 21 states and the District of Columbia have laws that prohibit sexual
orientation discrimination
 City of Phoenix ordinance – new in 2013
2013
Supreme
Court
Cases
Vance v. Ball State University
Fisher v. University of Texas
DOMA and Proposition 8 cases
U.S. Supreme Court
Retaliation 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.gov
21 Federal Laws
Transportation
Consumer/investor
Nuclear/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 203
Arizona 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 2541
Effective 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-TaxProvisions
• Arizona Employment Law Handbook
–State Bar of Arizona at www.azbar.org
• www.ica.state.az.us
Questions?