HR.BLR.com (03/29/12)

The U.S. Department of Labor has estimated that nearly 70% of
employers are not in compliance with the Fair Labor Standards
Act. In 2010 alone, it set aside $25 million for an enforcement
crackdown, adding 350 FLSA investigators with the goal of seeking
out employers that commit wage and hour
offenses—particularly exemption misclassifications.

The goal of DOL’s efforts is to get employers to create
compliance action plans to address employment law compliance. DOL
is considered likely to propose a rule that will require covered
employers to notify workers of their exemption status and perform
a classification analysis on workers classified as exempt. To be
in compliance, employers covered by the Wage and Hour Division
need to develop written plans for identifying wage and hour
violations, create a process for implementing the plan, and test
the process for compliance.

Lexology (03/28/12) R. Michelle Tatum

In the case of Thom v. American Standard Inc., the Sixth
Circuit affirmed a partial summary judgment for an employee’s
Family and Medical Leave Act interference claim because the
employer did not inform him of the method used to compute his
FMLA leave and ruled that the employee was entitled to double
compensatory damages because he was terminated in bad faith.

Employees are entitled to 12 work weeks of FMLA leave during any
12-month period, and employers can choose from four methods to
compute the leave: the calendar year; any fixed 12-month
“leave year,” such as a fiscal year or the year
beginning with the employee’s anniversary date; the 12-month
period from the start date of the employee’s first FMLA
leave; or a rolling 12-month period measured backward from the
date of any FMLA leave. Employees can use whatever option is most
beneficial to them if their company does not state which method
it uses. Companies must provide 60 days’ notice before
implementing their method of choice, and they should distribute a
written policy and have employees sign it. They should consider
employees already on FMLA leave or those who requested leave
during that 60-day period, permitting them to use a more liberal
way to compute leave but indicating how subsequent leave requests
will be handled.

Compensation.BLR.com (03/29/12)

Employers must properly classify workers under the Fair Labor
Standards Act, especially given the potential for expensive
class-action lawsuits. The U.S. Department of Labor has beefed up
its FLSA enforcement with the P3 Initiative, which calls on
employers covered by the Wage and Hour Division to create written
plans for identifying wage and hour violations (plan), develop an
implementation process (prevent), and test the process for
compliance (protect). The DOL is expected to propose a rule
forcing covered employers to inform exempt employees of their
status and conduct classification analyses on these exempt
workers.

Experts stress the need for proper worker classification, as
“employers” are jointly liable for FLSA damages. Given
that the definition of “employer” is “any person
acting directly or indirectly in the interest of an employer in
relation to an employee,” human resource professionals and
others could be held liable. However, courts typically take into
account an individual’s financial control over the work force
and role in creating pay policies and classifying workers when
determining personal liability.

HR.BLR.com (03/27/12)

The U.S. Department of Labor in February signed an agreement with
California secretary of labor Marty Morgenstern regarding the
improper classification of employees as independent contractors.
The agreement is part of the DOL’s Misclassification
Initiative, which was launched with the goal of preventing,
detecting, and remedying employee misclassification.

Under the agreement, DOL and the state will share information;
coordinate enforcement efforts; and establish a method for
exchanging investigative leads, complaints, and referrals of
possible violations. The agreement will facilitate the exchange
of statistical data on the incidence of violations of specific
industries and geographic areas. The two agencies can also
conduct joint investigations. Eleven other states have also
signed agreements with DOL.

Birmingham News (Alabama) (04/02/12) Martin Swant

Immigration attorney Wendy Padilla-Madden offers several tips for
Alabama employers that must use the federal E-Verify system to
determine if employees are authorized to work in the U.S. She
recommends that employers read their company’s E-Verify MOU
with the U.S. Department of Homeland Security; use E-Verify for
every new employee without regard for national origin or
citizenship status; remember that all E-Verify activity is
monitored by the government; don’t use E-Verify to dispel
suspicions or prescreen future employees; don’t take adverse
actions against employees who are in the middle of resolving
their case through E-Verify; and seek help from a qualified
immigration attorney if compliance challenges surface.

JDSupra (03/28/2012)

This article, originally published by the Illinois State Bar
Association, considers the fact that employment and other
contracts may restrict soliciting or hiring a firm’s
employees for a period of time. Court decisions applying Illinois
statutes recognize that having a stable work force is a
legitimate business interest, but do not allow in most instances
blanket restrictions on recruiting or hiring. However, a blanket
restriction may be permitted given unusual circumstances such as
a firm’s small size or the nature of the work force or
industry.

Unless those circumstances are apparent, a recruitment
restriction should be limited to competitive employment of those
employees having confidential knowledge or with whom the
restricted party holds a recruiting advantage. Recruiting
advantages include relationships with the employees, knowledge of
a firm’s confidential data, and knowledge of an
employee’s competencies.

The restriction should be reasonably limited in terms of
geography and timeframe. Furthermore, the restriction’s
purview should be narrower for lower level employees than for
senior management. For employees other than senior management,
the restriction may need to be confined to subordinates, other
employees with whom the restricted employee works, and senior
manager.