New Guidance on Employee, Independent Contractor Status

Department of Labor crestThe Wage and Hour Division of the Department of Labor issued an Administrator’s Interpretation on July 15, 2015. The Interpretation discusses the classification of independent contractors and employees. An Interpretation does not have the force of a regulation that has been subject to the procedures of notice and comment. However, the Interpretation is indicative of the stance that the DOL will likely take regarding employee and independent contractor classification. The Interpretation’s actual authority and ability to impact the classification of employees and independent contractors in litigation will be a source of future debate. It is an indication that misclassification continues to be a hot button topic for businesses paying workers.

ADA Anniversary

Department of Labor crestThis week in 1990, President George H.W. Bush signed the Americans with Disabilities Act into law. The DOL is celebrating 25 years of the ADA this month. The law is designed to eliminate discrimination against persons with disabilities and strive for full participation for all people in economic opportunities and in independent living. The ADA has since been amended in 2009. More information on the anniversary is available on the U.S. Department of Justice’s Civil Rights Division website, by clicking here.

OSHA Best Practices for Transgender Worker Access to Restrooms

OSHAGender identity issues continue to be a hot topic in the media, and by extension in the workplace. This month OSHA has published a Best Practices memo providing suggested guidelines for restroom access for transgender workers. The memo is available on the OSHA website or by clicking OSHA Best Practices, Restroom Access.

Retail Giant Faces Tough Questions About Employee “Look Policy”

EmploymentLawNewsletterHeaderClick here to see the recent update from Wilson Worley PC on the EEOC case involving the extent of an employer’s ability to set dress codes or “physical appearance” policies. The U.S. Supreme Court is expected to rule this summer.

Text messages at work lol

I was in a court proceeding recently involving a termination. The proof consisted of numerous text messages between the employee and a manager. It struck me as we sorted through the electronic discussion just how much communication occurs in the job setting via text message.

It is a good idea to review your employment policies to make sure that they contemplate all the different types of electronic communication that are being used in your workplace.  Do you specify how an employee must give notice about attendance or request time off? Odds are, you have some employees requesting time off via text. If you require a more formal means, you’d best spell it out in your policy.  Do you have a communications tree for getting information disseminated? If so, it is likely that text messages will go to cell phones rather than phone calls to home land lines. Does your harassment policy make clear that harassment can occur via text messages (not to mention photos and videos sent via text)?

You get the picture. This is definitely an area of communications that has changed profoundly in the last decade. Make sure your policies have changed with the times.

Is There Time? The Need for Employee Training

image1I saw a statistic the other day for the number of minutes in a year–525,600. Even taking it a day at a time, the number is 1,440 per day. The numbers were being used to talk about parenting. As a parent, you can’t watch a child every minute of the day. That is why it is important for parents to work to train children and equip them to deal with situations when the parents aren’t there.

Serving in human resources presents some of the same challenges. In addition to being in charge of personnel policies and documentation, the HR staff often gets to serve as “parent” to the activities and relationships of employees. And even worse, sometimes the role is one of policeman. But the HR role can be more effective if the model is one of trainer rather than law enforcement. Usually, if the staff is educated and directed, they don’t have to be watched all of the time.

Next time there is resistance to budgeting money for training sessions or materials, remind the company just how many minutes untrained staff are on task each work day.

Split of circuits on same-sex marriage bans

U.S. Supreme CourtLast week, the Sixth Circuit upheld same-sex marriage bans in four states within the circuit, including Tennessee.  After four circuit courts had struck down such bans in other areas of the country, including in Virginia, there is now an expectation that the Supreme Court will address laws banning same-sex marriage.

These opinions impact employers regarding application of workplace policies and handling of benefits.  Under the Supreme Court’s 2013 Windsor opinion, same-sex spouses are married for federal tax purposes, provided they were married in a state that allows same-sex marriage.  Currently for employers, this impacts qualified retirement plans.

The Sixth Circuit opinion is a 2-1 ruling with a 42-page opinion and a 21 page dissent.  Most commentators expect the Supreme Court to take up the issue now that there is a split in the circuit courts.  We will monitor upcoming opinions for their effect 0n workplace policies and management of employees.