EverythingPeople This Week!

9

Jul

2019

DOL Wage and Hour Division Issues Opinion Letters Addressing Overtime and Hours Worked Issues

Author: Michael Burns

Last week the U.S. Department of Labor’s Wage and Hour Division published three Opinion Letters on various wage and hour issues. Opinion Letters provide guidance on wage and hour questions but do not bind a court to its position on that question or issue. The three opinion letters address compliance issues surrounding overtime pay in various aspects.

2

Jul

2019

Overtime Pay Calculation – Are you Doing it Correctly?

Author: Michael Burns

At ASE we often get questions from our members about proper overtime pay calculation when different pay plans are at play. To calculate overtime pay for non-exempt hourly employees correctly, one should first determine a few things.

25

Jun

2019

Swing of NLRB Pendulum Continues to Compel Employee Handbook Policy Review

Author: Michael Burns

The Trump National Labor Relations Board (NLRB) continues its pro-business course. Until 2017, the NLRB regularly attacked employer rules that it deemed restrictive, directly or indirectly, on employees' right to organize. Employers, including non-union, were compelled to review employee handbook policies/rules to correct rules that were viewed as restrictive toward union organizing rights.

18

Jun

2019

Severance Agreement Term Does Not Circumvent Discrimination and Equal Pay Actions

Author: Michael Burns

The Sixth Circuit Court of Appeals, whose jurisdiction includes Michigan, ruled against a machine parts manufacturer last August when it overturned a lower court decision that held an employee’s severance agreement barred her lawsuit alleging Title VII discrimination and violation of the Equal Pay Act.

11

Jun

2019

Understanding Test/Assessment Validation

Author: Michael Burns

ASE receives many calls regarding assessment tools to evaluate employment candidates. There are many testing instruments in the market that test for job skills, intellectual acumen, and candidate-to-job personality fit.

4

Jun

2019

States Across U.S. Adopt Myriad of Wage and Benefit Laws

Author: Michael Burns

Late last year Michigan passed a minimum wage increase that increased this state’s minimum wage for the next 10 years. It also passed the Paid Medical Leave Act requiring employers with over 50 employees to provide five paid days off.

28

May

2019

ASE Reasonable Suspicion Training Provides Supervisors and HR Professionals Information to Address Potential Drug Use on Site

Author: Michael Burns

In response to Michigan becoming only the tenth state to legalize recreational use of marijuana, ASE is now sponsoring a class to train supervisors, managers, HR professionals, and others to address reasonable suspicion behavior. Despite marijuana use being legalized in Michigan, employers have control to prohibit an employee from being under the influence of marijuana, just like alcohol, at work.

21

May

2019

Summer is Almost Here – If You Hire Minors, Remember Your Employer Responsibilities

Author: Michael Burns

As we noted a couple of weeks ago in the EPTW article, Summer Interns – To Pay or Not to Pay, employers operating internships must know what is required of them, and many may also be minors. Most internships should be paid ones pursuant to the law.

14

May

2019

“I Get by With a Little Help From My Friends…”

Author: Michael Burns

Did you know friendship as a hiring factor can beat off a discrimination allegation? A recent Michigan Court of Appeals ruling affirms other court decisions holding the same.

7

May

2019

Wages are Finally on the Rise – Why did it Take So Long?

Author: Michael Burns

For years economists and others have wondered when wages would start to rise. Economic theory and past labor experience predicts that when unemployment becomes low, pay goes up. The rise in pay is a result of employers being forced pay more in order to attract the reduced amount of workers that are available.

30

Apr

2019

Michigan Addressing Independent Contractor Misclassification

Author: Michael Burns

As EPTW readers know, joint employment, independent contractors, and worker misclassification confusion has been an ongoing federal concern. New federal joint employer regulations were published by the U.S. Department of Labor late last month.

23

Apr

2019

Summer Interns – To Pay or Not to Pay

Author: Michael Burns

As summer approaches and the colleges empty out, many employers may be gearing up for a new batch of summer interns. Though ASE surveys show many employers pay their interns, some intern positions may be set up as unpaid because the work experience is what counts, right?  The Department of Labor has a seven-part test to determine if an internship should be classified paid or unpaid.

16

Apr

2019

Federal Employment Legislation Introduced So Far This Year

Author: Michael Burns

With so much state law change being introduced and passed around the country and in Michigan, and until fall of last year Congress and the Executive branches being controlled by business-friendly Republicans, there was not much federal employment legislation to be concerned about. The Executive branch has been busy trying to adjust employment and labor regulations, but these adjustments have been to roll back the more onerous regulations implemented during the Obama administration.

9

Apr

2019

U.S. Department of Labor Proposes 4-Factor Joint Employment Test

Author: Michael Burns

Employers that have franchise operations, engage independent contractors, or both have had the rules and protections that come with these business relationships turned on their heads in recent years. A newly proposed 4-factor test may simplify things.

2

Apr

2019

NLRB Continues to Look at Employer Policy and Rules

Author: Michael Burns

The National Labor Relations Board (NLRB) continues to review union and non-union employer policies and rules.  In an Advice Memo published last week by the NLRB, the Board’s advice division looked at two employer rules through the lens of its 2017 Boeing decision. This decision trimmed back considerably the previous NLRB’s position that if an employer’s rule could in any way infringe upon an employee’s right to engage in protected concerted activity it would...

26

Mar

2019

USDOL Publishes FMLA Opinion Letter Clarification

Author: Michael Burns

The U.S. Department of Labor (DOL) issued an Opinion Letter clarifying how employers must go about allowing an employee to use other time off (paid or unpaid) in conjunction with the Family and Medical Leave Act (FMLA) requirements.

19

Mar

2019

Limitation of Actions Clause Can Fail if Not Done Correctly

Author: Michael Burns

Several weeks ago we wrote about how a limitation of actions agreement/clause can effectively restrict state wrongful employment actions to a much shorter period of time – normally 180 days. It is recommended a limitation of actions clause not be included in the employee handbook. They can be placed on an employment application form in its boilerplate text section normally just above the signature and date lines, or it can be a separate agreement signed at the point a job offer is made.

12

Mar

2019

More Information on the Proposed Regulation on Exemption Salary Level Test Released

Author: Michael Burns

As reported last week in an ASE breaking news update, the U.S. Department of Labor (DOL) released its long-anticipated changes to its white-collar exemption regulations. The big change was a “split the baby” approach to resolving a regulatory agency overreach by the DOL back in 2016.

8

Mar

2019

U.S. DOL Sets Salary Level Test Threshold at $35,308/yr.

Author: Michael Burns

Late yesterday, the U.S. Department of Labor published its new proposed rule raising the Fair Labor Standards Act (FLSA) “white collar” exemption to $35,308/year or $679/week from $23,660/yr. or $455/week. The salary level test is one of three criteria that must be met to legally exempt an employee from overtime and some recordkeeping requirements.

5

Mar

2019

Unions Cannot Make Nonmembers Pay for Union Lobbying

Author: Michael Burns

The National Labor Relations Board (NLRB) held last Friday that unions can’t force workers that choose not to be in the union to pay for its lobbying activities. This decision holds that fair share fees that some unions require nonmembers to pay en lieu of being in the union can’t be used for lobbying. This follows the U.S. Supreme Court's 1988 decision in Communications Workers of America v. Beck. That decision found that if a worker objected to his/her dues being used for...

26

Feb

2019

Another Court Decision Affirms Importance of Documentation and Record Keeping

Author: Michael Burns

One of the most basic supervisory/human resource responsibilities should be documentation of performance and disciplinary actions; however, it is often the most neglected. Notes and write-ups as well as formal performance reviews need to be consistently conducted and maintained on record by the employer.

19

Feb

2019

Developing or Integrating Your Organization’s Paid Time Off to Comply with Michigan’s New PTO Law

Author: Michael Burns

With the passage of and impending enactment date (March 29, 2019) of Michigan’s new Paid Medical Leave Act, employers that are covered are hastily reviewing their existing vacation, sick, and personal time, as well as formal Paid Time Off benefits and policies to see how far off they may be from compliance with the new law.

5

Feb

2019

Retraction of Narrower Independent Contractor Definition Continues

Author: Michael Burns

Of the many Obama era labor and employment overreaches, the re-defining of joint employer and independent contractor was (and continues to be) arguably the most controversial. The National Labor Relations Board (NLRB) previously focused on union-employer relations.  But during the Obama Administration it imposed itself on the world of corporate law by reconstruing the law and using its case decision making authority to find most independent contractor relationships void.  This in...

29

Jan

2019

Union Membership Continues to Slip

Author: Michael Burns

The Bureau of Labor Statistics (BLS) released its report on 2018 union membership last week and total union membership continues to slip as a percent of the U.S. workforce. For 2018 total union membership – public and private employers – stood at 10.5% (14.7 million workers). That downward trend of 0.2 percentage points from 2017, continues a downward trend from the union movement’s heydays of the late 50’s/early 60’s where union membership was estimated at over...

22

Jan

2019

Fluctuating Workweek Method to Determine Regular Rate of Pay

Author: Michael Burns

Last week’s EPTW article, Keeping up on Your Fair Labor Standards Act Understanding, reviewed the recent Department of Labor Opinion Letter (FLSA 2018-28) outlining a legal method to calculate a regular rate of pay when more than one pay rate is paid to an employee. The Opinion Letter stated an employer may not arbitrarily set a regular rate from two or more pay rates that it uses to calculate overtime from. It must calculate the regular rate by averaging hours worked and the different...
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