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Employment Law Archives

When is an employer required to give unemployment compensation?

Unemployment compensation is often an agreeable arrangement. If an employer has to lay off a worker, compensation is usually the least the company can do. But, sometimes employees will take advantage of unemployment compensation. In other words, they may demand it when they don't deserve it. Thus, employers should know in what circumstances the government requires them to pay.

Fired employees often qualify for unemployment compensation. A legit example is after a layoff. But, an employee that performs misconduct can be exempt from payment. This misconduct usually has to be intentional and recurring. Examples include:

  • Frequent and unexcused lateness and absence.
  • Not following workplace rules.
  • Being intoxicated while working. 
  • Sleeping while at work.
  • Lying. 
  • Sexual harassment. 
  • Causing considerable damage to a business.

Those who quit aren't usually supposed to receive unemployment compensation. But, sometimes there is a "good cause" for leaving which then necessitates reimbursement. "Good causes" can include:

  • Sexual harassment or discrimination that the employer didn't fix.
  • An employer relocated an employee's job or their spouse's job to somewhere far away.
  • An employer compromised an employee's health.
  • Convincing personal reasons, such as caring for a sick family member.

If you believe that one of your employees is wrong in requesting unemployment compensation, you may want to consult an attorney that specializes in employment law. They can help you determine whether your employee deserves compensation or not. And, if an employee demands reimbursement where none is due, an attorney can help fight for your company's rights. They may also prevent your business losing a significant amount of money as a result.

Avoiding complications when starting a business

Starting your own business is an exciting endeavor. Whether you have reached the decision to start your own company as a result of a declining economy and strained job market or you are in a position to finally go after your dream of opening a brick and mortar or online store, provide a service or sell your art for example, there are many things you will need to consider to avoid complications when starting a business.

Although starting a business is an exhilarating experience, just like with any major decision, there are many factors to consider. After you have decided on a name, ensuring that it is available to use, you then have to determine the type of company. Should the business be incorporated, are you going to start the business alone or with a partner, have you determined a plan and goals that are achievable?  If there is a partnership involved, every invested party needs to decide how funds will be disbursed, how partners are paid, what funds will be reinvested in the business. These are all questions to answer to ensure success.

If you plan to hire employees as opposed to independent contractors, you will have a host of additional parameters to meet. For example; when you are the employer, you must also ensure that all your bases are covered with regards to employees such as employment benefits, employment-related disputes and unemployment compensation. Paperwork, licenses, laws regarding taxation and ensuring you are adhering to all legislation requires a detailed plan of action.

There is help available to ensure the success of your new venture.  Contacting a business law attorney experienced with the many intricacies of starting and growing a viable business or company is the best place to start. They can walk you through every step of the process and take care of the legal issues to you can focus on seeing your dream come to fruition.

Are my employees exempt from the FLSA?

If you run your own business, you're probably aware that the Fair Labor Standards Act (FLSA) governs overtime pay, minimum wage and child labor standards. However, the ins and outs of the FLSA can make it a bit confusing to interpret. For example, you may be wondering when you have to start paying overtime or, depending on the business, whether your employees are even subject to the FLSA.

These are important questions to answer because noncompliance could result in penalties. So, let's take a look at some of the basics. The majority of workers in the U.S. do get protections from the FLSA, meaning they must be given the current minimum wage and paid overtime when they work over 40 hours in one week. 

However, there are some conditions under which your employees would be considered exempt. First, if they make $455 or more a week or $23,600 every year. Also, if the employee is paid a set salary. There are some other conditions as well:

  • If the employee has managerial supervision over at least two employees and is in a position to hire, fire or give assignments.
  • If the employee works in a highly skilled field such as teachers, lawyers, physicians and nurses.
  • Some administrative positions like human resources, public relations and accounting are also exempt.

Staying compliant with the FLSA isn't always easy. That's why it might be a good idea to speak with an employment law attorney who can help you make sure you're on the right side of the law.

A primer on defamation

As a business owner, there are few things more important to you than the reputation of your business. So when someone says something derogatory about your services or the way your business operates, it can hurt you both emotionally and financially. Potential clients may see it and decide not to use your business because of what someone else said. Now what if the derogatory remarks were false and made by a former employee or a competitor who is looking to ruin your business?

In that case you may be able to file a defamation suit and recover damages for the injuries to your business and your reputation. In order to prove that your were defamed, there are a few requirements:

  • A statement has been written or spoken about you by a second party.
  • That statement has to have been "published," meaning it was seen by a third party. This does not mean it has to be "published" in the traditional sense.
  • The statement has injured you in some tangible way, like damaging your reputation and causing you to lose out on work.
  • The statement has to be demonstrably false. True statements, even when they hurt, aren't considered defamation.
  • Finally, the statement can't fall into a protected category of speech. One example would be someone testifying at a trial.

 

If you feel the defamatory statement meets these requirements, you may want to consider speaking with an employment law attorney. He or she can listen to your case and may be able to help you move forward with it.

What Does the National Injunction on the Final Rule Mean for Employers?

A federal judge in Texas issued a preliminary injunction yesterday, November 22, 2016, that prevents the implementation of the Department of Labor's Final Rule regarding new overtime regulations. This preliminary injunction is nationwide and will affect all employers and employees who were subject to the Final Rule set to go into effect next week on December 1, 2016.

You can read more about the preliminary injunction on our blog here

You can also read more about the Final Rule on our blog here

So what does this mean for you as an employer?

If you have already made changes to an employee's salary or exempt status to comply with the Final Rule you should not change their salary or exempt status back. Doing so at this point without a final ruling will cause more upheaval and administrative costs. If upon the final judgment or other resolution the Final Rule is not implemented, employers who change salaries or statuses can move employees back into their original positions under the 2004 legislation with the comfort of knowing that they have the final answer.

If you have not made changes to an employee's salary or exempt status yet but do have employees who would be affected by the Final Rule, you don't have to make any changes now. Instead continue planning and be ready to make any necessary modification to comply should the preliminary injunction be lifted or a final resolution implement the Rules.

All employers should continue to plan and look for updates on the matter. The preliminary injunction is just that - preliminary. The litigation will continue, the DOL will challenge the preliminary injunction and there must be a final judgment or other resolution amongst the parties. In the meantime, the preliminary injunction will stand and the current salary threshold of $23,660 will be in effect. If the States Plaintiffs prevail it is possible that the preliminary injunction could become permanent, that is the Final Rule will never be implemented and the current threshold will remain. However, if the States Plaintiffs fail to prove their case, the Final Rule could be implemented swiftly. The parties could also reach another resolution or the new presidential administration could intervene and propose a modified Final Rule. If such intervention occurs, resolution is unlikely in 2017.

This is a good time for all employers to evaluate all workers and their statuses. Employers can be investigated, fined and can incur civil costs for inadvertent overtime violations as well as misclassification of employees and independent contractors. If you have questions regarding the Final Rule or other employment matter please contact Kisner Law Firm

Federal Judge Prevents Implementation of DOL Final Overtime Rule

On November 22, 2016, a Texas federal judge issued a nationwide preliminary injunction which prevents the Department of Labor's new overtime rules, known as the Final Rule, from taking effect on December 1, 2016.

The Department of Labor's (DOL) Final Rule would have doubled the exemption threshold for overtime pay from $23,660 a year to $47,476 for most salaried workers. The change would have required most businesses and many nonprofit organizations to pay time-and-a-half for more than 40 hours per week by those employees making less than $47,476 per year.

However, U.S. District Judge Amos Mazzant found that the State Plaintiffs, a group of states that did not include Pennsylvania, met their burden for a preliminary injunction to stop the Final Rule from going into effect next week.

The Court held that the statute under which the "white collar" salary exemption comes, is plain and unambiguous, and that it is Congress, not the DOL, who has the ability to make the changes laid out in the Final Rule. The Court also held that the Final Rule made a "de facto salary test" that is at odds with Congress' intention and exceeds the DOL's authority.

One of the questions that must be answered in issuing a preliminary injunction is if the injunction is in the public's best interest. Judge Mazzant held that if the State Plaintiffs proved their case, the implementation of the Rule, and the subsequent need to undo it, would greatly harm the public- particularly by costing the public, including the States, millions. Whereas, if the Defendants show the Final Rule is lawful and it is eventually implemented then there would be no harm caused by the injunction, only a delay, during which the current rules would apply. The Court also found that because the Final Rule would affect employers and employees in all states a nationwide enjoinment was necessary.

For assistance with overtime or other employment issues contact Kisner Law Firm.

What actions are considered race discrimination in the workplace?

Employers should do what they can to ensure their employees are happy and look forward to coming into work every day. For some, having a pleasant work environment and friendly coworkers is pretty much all the motivation they need to come into work, so when they feel as though something is amiss, they may be reluctant to show up and do a good job. This may be how employees feel when they have been victims of racial discrimination, and employers should pay close attention to what could have happened to make them feel this way.

The following actions would be considered race discrimination in the workplace:

  • Paying an employee a low wage or salary due to their race.
  • Not providing or offering employee benefits due to their race.
  • Terminating or suspending an employee due to their race.
  • Segregating or keeping employees apart due to their race.

As an employer, it is important that you treat all employees equally. Sometimes, employees may feel as though they have discriminated against, but the employer doesn't agree with their opinion. Regardless, any claims of race discrimination should be taken seriously, and employers should do what they can to make the work environment one that is comfortable for all employees.

When an employee comes to you with a problem, it is necessary for you to listen and work to rectify any wrongs that have been done. You may not agree with the employee's thoughts and opinions, but if you want to avoid going to court, it is best not to ignore them. Should an employee decide to file an official claim and seek compensation, an attorney can assist you with handling this matter.

Employers should take harassment claims seriously

Employers are expected to do everything they can to provide their employees with a comfortable, safe work environment. For all employers, a safe work environment should be one that is free of harassment. Although many employees may feel as though they are treated fairly, and their employer is doing what they are supposed to, there may be others who would disagree.

When employees feel as though they have been harassed in the workplace, they may decide to take action. They will likely first inform their employer of this specific behavior in hopes of them doing something to correct things. But if nothing changes, they may hire an attorney and file a claim. At this point, they may seek compensation.

Harassment is something that can take many forms. There have been many who have claimed that their employer or someone in the workplace has harassed them due to their age, sex, religion and much more. It may be tempting for an employer to ignore a claim of harassment and hope that it will go away, but if you want to avoid being taken to court and possibly having to pay your employee for their troubles, harassment claims should be taken seriously.

There are many things that employers can do to avoid a harassment claim, but that doesn't mean that an employee won't feel as though they have been harassed or treated unfairly in the workplace. When someone comes forth and wants to speak to you about harassment in the workplace, do not ignore the claim. Should your employee decide to take you to court, an attorney from Kisner Law Firm can assist you with your case.

How employers should handle employees who are pregnant

As an employer, it is always important to treat all of your employees with respect. Failure to do so may cause issues and even lead to an employee filing a discrimination claim. This legal battle where it is your word against theirs can be exhausting, stressful and overwhelming. When dealing with a pregnant employee, employers need to be aware of the laws in place regarding employment.

When an employee is pregnant, employers should be sure of the following:

  • They don't terminate an employee due to their pregnancy.
  • They hold the employee's job when the absence is pregnancy-related.
  • They don't refuse to promote an employee due to their pregnancy.
  • They provide similar benefits for those who are single and pregnant as those who are married.

Sometimes, certain decisions or behaviors can be mistaken for discrimination. That being the case, what an employee may view as discrimination may not be similar to what their employer views as discrimination. However, when an employee feels as though they have been treated differently than others, employers should take a close look at what they may or may not have done because it is possible that they have discriminated against this pregnant employee.

Discrimination claims should be taken seriously by all employers. If someone feels as though you have discriminated against them because of their pregnancy, you should not hesitate to hire an attorney who can help you with the case. Filing a claim doesn't make the accusation true, but employers should ensure they do what they can to keep all their employees happy and avoid other accusations of discrimination.

Why an employee may not sue for violation of privacy

Just as employers expect certain things of their employees, employees expect things from their employer. In addition to offering a safe work environment, employees often expect that their privacy will be respected while at work. Many employers have no problem doing so, but sometimes what an employee expects to be private isn't treated as such. This confusion has lead to many employees to sue because they felt as though their privacy was violated.

An employee may not sue their employer for violating their privacy if the following has occurred:

  • The employee sent an email using employer's computer.
  • The employer keeps track of websites visited on an office computer.
  • The employer has blocked the employee from visiting certain sites.
  • Employer places a limit of how much time an employee can spend on certain sites.

Although there are some instances where an employer can check up on an employee, there are some that would violate an employee's privacy, such as if an employer monitors a personal call without the employee's consent. Employers may think that this isn't a violation of the employee's privacy because they made the call on a work phone, but they have to be careful because many courts would disagree with this assertion.

Even though both employers and employees have rights, employers should be clear on what is and isn't considered in violation of their employees' privacy. People want to feel safe and comfortable at work, and if they do not feel this way, they may consider suing their employer for violating their rights, especially if they are terminated due to information that was discovered because of their privacy being violated. Regardless of what has happened, an attorney can advise you on your best course of action.

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