Maryland Business Law Blog

Small Businesses Struggle With Pending Changes to Overtime Law

Posted by Edward Sharkey on Wed, 10/05/2016 - 04:00

Small businesses are running out of time to become compliant with the new overtime rule announced by the Obama administration last summer. The Department of Labor has confirmed the rule, making it final, and it will go into effect on December 1. The National Federation of Independent Business (NFIB) is pushing for a delay, contending that many small businesses are not ready.

Despite NFIB's contentions , the Department of Labor believes six months is enough time to prepare. Twenty one states disagree.

The new rule raises the salary ceiling for eligibility to receive overtime pay from $23,660 per year to $47,476 per year. It is expected to expand coverage to 4.2 million new workers. This leaves small business to figure out how to become compliant.

NFIB has identified several ways small businesses are choosing to respond to the requirements:

• Convert salaried workers to hourly, track their hours, and then absorb the overtime costs;

• Limit workers' hours to 40 hours per week and bring in part-time employees to make up for the lost productivity;

• Cut workers' base pay to offset overtime expenses;

• Raise employees' salaries to avoid the overtime costs.

Small businesses are going to have to figure out their preferred solution quickly. The Department of Labor shows no signs of slowing down the implementation.

The Most Common Way Employers Get in Trouble with the EEOC

Posted by Edward Sharkey on Mon, 03/28/2016 - 04:00

The EEOC recently released its annual report detailing enforcement and litigation data for 2015. Employer retaliation topped the list of most common charges, representing 44.5% of all charges filed. The EEOC is currently working on new guidance for employers on the topic of retaliation.

It is a little odd that discrimination is not the greatest alleged problem. Rather, it is the punishment of employees who complain about discrimination. Retaliation occurs when an employer takes an adverse employment action against a covered individual because the employee engaged in a protected activity. Protected activities can include opposing a discriminatory practice, complaining of discrimination, or requesting a reasonable employment accommodation.

Adverse employment actions include termination, negative evaluations, refusal to hire, denial of an earned promotion, unjustified negative references, threats, and increased workplace surveillance. Mere negative comments or a justified negative evaluation do not rise to the level of an adverse employment action. But a “justified” negative evaluation is in the eye of the beholder.

Individuals covered by the law include those participating in any of the protected activities described above as a result of alleged discrimination based on race, color, sex, religion, national origin, age, or disability. Coverage also extends to anyone who has a close relationship with an individual who engages in one of the protected activities referenced above. Individuals calling attention to violations outside of the scope of employment discrimination are not covered by anti-retaliation laws. For example, an individual who raises ethical concerns regarding his employer is not covered by these protections.

Like other employment regulation, the law on retaliation makes it very hard to make certain decisions without specialized advice. Do you have a terrible employee who, among other things, made an unjustified complaint of discrimination? Your government wishes you “good luck” terminating them without getting sued.

Whatever You Say Can, And Will, Be Used Against You

Posted by Edward Sharkey on Fri, 03/04/2016 - 05:00

What tops my list of most useful legal advice for business owners? Other people record you a lot more than you know. This includes customers, employees, and counter-parties. And a recent verdict from Fairfax County, VA illustrates the potential cost. A patient who was ridiculed by his doctors while under anesthesia was awarded $500,000 by a jury.

One EEOC office in Houston disclosed that one-third of employees who filed discrimination charges had secret tape recordings of discussions with their boss or human resources.

Is all of this secret recording good for society? Sometimes. A tape can be the smoking-gun evidence of bad conduct or intent that we want to penalize. On the other hand, a recording may shock us into punishing something that is not really harmful at all.

The insults about the aggrieved patient were very callous. But they were private comments between professionals who practice under enormous stress. They "hurt" the patient only because he liked to eavesdrop. That's an anti-social habit, and his story shows he knows that. He told the jury he turned the hidden recorder on, before the procedure, because he wanted to remember the doctor's post-op instructions. It seems like a lot of extraneous recording.

You don't have to agree about the societal benefit. Just don't doubt that the chance someone secretly records you is probably ten times greater than you believe. Imagine everything you say, and whether you would like your peers to judge you for it. This advice might help a bad person avoid liability for bad conduct. But I think it will serve a lot of careless but good people much more.

Call Today (301) 657-8184

 Google+  View Edward Sharkey's profile on LinkedIn