7 Employment Law “Hot Buttons” for Small Business – A Legal Roundup

The landscape of employment laws evolves quickly, and entrepreneurs and small business owners are often left scrambling to understand new rules and implement new procedures. To reduce the stress, read these legal updates on seven employment law “hot buttons” that should be on the radar screen of every small business:

1.Social Media in the Workplace

“… the [National Labor Relations] Board will not hesitate to extend employee rights to a broad range of social media activity. [Its latest] Memorandum … reemphasize[s] that employers are not free to adopt blanket social media policies that could discourage or prohibit protected concerted activity… Most troublingly for employers, the Board’s national and regional staff continue to find many facially neutral, but broadly worded, policies to be unlawful restraints of employees’ rights to engage in protected concerted activities under the Act.” (NLRB Offers Additional Guidance on Social Media Issues, Continues to Expand Employee Rights in Social Media Outlets and to Scrutinize Employer Communication Policies by Franczek Radelet P.C.)

Bonus update: Avoiding Electronic Chaos: Pitfalls of Social Media at Work (Jackson Walker)

2.E-Verify and Immigration:

“In the absence of comprehensive federal immigration reform, and particularly in the face of high levels of unemployment, states and local governments are stepping hard into the employment verification debate. A number of states, counties and municipalities have passed laws that mandate use of the otherwise voluntary E-Verify program. E-Verify laws warrant a close and careful look by all employers to determine when, if and how E-Verify mandates may affect them.” (Five Questions Employers Should Be Asking about E-Verify in 2012 by Pierce Atwood LLP)

Bonus update: 12 Steps To Immigration Compliance in 2012 (Fisher & Phillips LLP)

3.Worker Misclassification:

“On September 19, 2011, the Department of Labor (DOL) agreed with the Internal Revenue Service (IRS) to share information with each other and many state agencies in a coordinated attempt to enforce correct classification. The agencies hope broad compliance will reduce the tax gap between law-abiding employers and those in violation. Also, compliance increases tax revenue for state unemployment trust funds, as well as, unemployment compensation and workers’ compensation protection for re-classified individuals.” (Independent Contractor or Employee? State and Federal Agencies are Asking – Is Your Answer Correct? by Ober|Kaler)

Bonus update: Businesses and Households Employing Independent Contractors: Remain Aware (Duane Morris LLP)

4.Exempt v. Non-exempt Employee

“As an employer, you may assume you know the difference between non-exempt employees who are entitled to overtime, and exempt employees who are not. For example, you may assume that an employee paid a salary and given certain supervisory authority is exempt. But this assumption is wrong. Misclassifying an employee as exempt when s/he is not … will cost you.” (Exempt or Non-Exempt Employee? The Wrong Response Can Cost You by Ford & Harrison LLP)

Bonus update: Working Overtime (Ropers, Majeski, Kohn & Bentley)

5.Class Action Arbitration Waivers

“On January 3, 2012, the NLRB issued a decision on the question of whether employees could lawfully waive their right to pursue class or collective actions in a judicial or arbitral forum. [The Board] held that employees’ ability to join together as a class for purposes of bringing a claim against their employer constitutes ‘concerted activity’ for purposes of ‘mutual aid or protection’ under Section 7 of the NLRA. Accordingly, the Board held that the mandatory arbitration agreement waiving class actions required by the employer was an unlawful restraint on statutorily protected labor rights.” (It’s 2012 And The NLRB Is Off To A Fast – And Controversial – Start by Fisher & Phillips LLP)

Bonus update: Class Action Arbitration Bans – the Obama NLRB Attempts to Trump the Federal Arbitration Act and the Supreme Court (Epstein Becker & Green, P.C.)

6.Right-to-Work Laws

“Right-to-work laws prohibit anyone from forcing a person to join or support a union as a condition of employment. That is to say, they protect an individual’s fundamentally American ‘right to work’ without being forced to join, or pay any of their earnings, to any group. Right-to-work laws do not in any way prevent people from joining or paying dues to a union if they freely choose to do so… Twenty-three states have enacted right-to-work laws, with Indiana being the first to do so in 12 years.” (Indiana Enacts Right-To-Work Legislation: Will The Rest Of The Rust Belt Follow? by Fisher & Phillips LLP)

Bonus update: An Overview of “Right-to-Work” (Pullman & Comley, LLC)

7.Workplace Safety

“Since publishing its regulatory agenda in April 2010, OSHA has declared its intent to mandate through rulemaking that all covered employers create, implement and enforce a workplace injury and illness prevention program. The agency has insisted that the standard it plans to promulgate ‘will simply require employers to develop a program to help them find and fix hazards in their workplaces.’ … [T]he agency has yet to disclose any specifics that are under consideration. That will change soon.” (OSHA Moves Closer to Proposing Rule Requiring All Covered Employers to Create, Implement and Enforce Injury & Illness Prevention Programs by Schnader Harrison Segal & Lewis LLP)

Bonus update: OSHA’s Top Ten Citations (Cole Schotz)


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