Ban the Box, Binding Arbitration Agreements, FLSA Requirements

New Year’s Resolutions to Stay Out of Trouble at Work in 2016

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With the New Year upon us, this is the perfect time to consider whether your employment policies and
practices need updating or fine-tuning.  Based on recent developments in the law and our experience advising hundreds of employers and employees in 2015, here are five recommended New Year’s Resolutions to stay out of trouble at work:

  1. Consider implementing mandatory and binding arbitration agreements for your workforce, including express waivers of the right to a jury trial and the right to participate in collective or class actions. Per our previous Updates, these agreements must be properly drafted to be enforced, but, if that is done, then they can help an employer avoid thousands and even millions of dollars in legal fees, liabilities and management headaches.
  2. Prepare for Overtime-ageddon. President Obama and the U.S. Department of Labor have proposed new regulations under the Fair Labor Standards Act that would more than double the minimum base salary required for the most common exemptions to overtime pay.  Although recent reports indicate the regulations will not be finalized and take effect until late this year or early 2017, now is the perfect time to audit your company’s wage and hour compliance and take steps to make any cost-saving changes and workforce adjustments before the new, tougher regulations take effect. Updating job descriptions is one powerful step that can support appropriate wage and hour classifications.
  3. Be nicer to job applicants. Numerous states and cities recently have adopted strict measures limiting what and when employers can ask job applicants about their criminal records.  Be sure your company complies with these various “ban the box” laws.  Also check your company’s compliance with the federal Fair Credit Reporting Act, which requires mandatory disclosures and notices to employees whenever an employer seeks background checks by a third party on employees or applicants, or uses the results to make employment decisions.
  4. Keep up with the electronic age. Yes, Virginia, there is an Internet. Most workers are using electronics and mobile devices throughout the day, yet their employee handbooks are often still stuck in the horse-and-buggy days.   Do you have a “don’t text and drive” policy, as recommended by OSHA?  Are there written measures that protect your company’s electronic systems and data from internal misappropriation or external cyber-attacks?  What does your company do with the electronic data on an employee’s personal phone, tablet or computer when he or she resigns or is fired?  Are you limiting non-exempt employees’ after-hours access to work email to avoid potential wage and hour violations?  If you don’t know the answer to one or more of these questions, your company could be facing an expensive wake-up call.  Get help.
  5. Get more organized – find those employment agreements. Often when we are called on to help a client involved in non-compete litigation, we find that key employment agreements are missing or not signed.  This can be avoided by conducting regular reviews of personnel files to ensure all necessary documents and agreements are signed and preserved.  Not having the signed documents can severely hamper an employer’s ability to enforce its rights and protect itself from unfair competition and stolen trade secrets.  This simple annual review can be conducted by a clerical employee and do not require legal fees or expenses.  Do it now, and avoid that painful “D’oh!” moment in the future.

Bonus resolution, free to subscribers:

  • Do not procrastinate. The Update staff needs to work on this one, as this article was supposed to go out in December!

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.



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