HR 201: Beyond HR Boot Camp

1. HR 201: Beyond HR Boot Camp

2. Denise Blommel Attorney Denise M. Blommel, PLLC 7272 E. Indian School Road, Suite 206 Scottsdale, AZ 85251 480-425-7272 denise@azlaborlaw.com www.azlaborlaw.com

3. HR 101 Document Document Document

4. HR 101 Accurate and Up-to-Date Employee Posters and Forms

5. HR 101 Accurate and Up-to-Date Employee Policies

6. Employment Law Update What’s new for 2013?

7. Patient Protection and Affordable Care Act “Obamacare” Employer Reprieve

8. Play or Pay ON HOLD UNTIL 2015

9. PPACA Elements Still in effect Notices due by 10/1/2013 by ALL FLSA employers Changes in W-2 and other taxes before 2014 Postponed to 2015 Count your employees – how many do you have? Do you offer group health insurance? If so, when and to whom do you offer it? If so, does it have minimum essential coverage? If so, what % premium do you cover? Are you aware of penalties?

10. Aggressive Federal Agencies

11. Section 7 Protected Concerted Activities National Labor Relations Act Wages Hours Working Conditions Concerted =More than One Nonsupervisory Employees

12. Protected Concerted Activities Employee Handbooks Employment at will language Social media Confidentiality Investigations

13. Employment at Will Can it be changed? Confidential Information What is a secret?

14. Investigators Beware!

15. Social Media Everybody’s a Publisher!

16. Protected Concerted Activities NLRB and Social Media

17. Who is Reading Your Page? What if you say a customer frustrates you and that customer is a “friend” or has a “friend” who tells the customer about your posting? What if you “friend” your boss’s boss and you say that your boss is a jerk? What if you say that you work for the Company and it is the best [fill in the blank] in the USA? What about supervisors who give references for former employees that you fired? What about “checking out” job applicants on social media?

18. Technology Policy Written Consistently enforced Covers all data and devices, including BYOD Incidental use of Company equipment Social media usage at work and at home Updated with the law and changing technology Security of Company technology

19. Social Media – Policy Must HavesSee also General Session Class • Social media use must not interfere with work duties/performance • Do not use social media to harass or discriminate • Do not share trade secrets, proprietary or confidential information • Ethical standards - remind employees of your Code of Conduct • The Company owns the computer, monitors use, monitors emails, no right or expectation of privacy. • Non-disparagement? You cannot prevent employees from talking about their work conditions. • Enforce consistently (justify exceptions) • May be disciplined up to and including termination for violation • CANNOT VIOLATE THE NATIONAL LABOR RELATIONS ACT!

20. US Department of LaborArizona Initiative Independent contractor vs. employee Exempt vs. non-exempt Working off the clock Three year minimum wage records on audits Emphasis on certain industries

21. Independent ContractorRight to Control or Common Law Test • Control over process; not just outcome • Distinct occupation or business • Need for supervision • Level of skill • Provision of tools, supplies and place of work • Duration of service • Method of payment • Regular business of employer • Intent of the parties • Is hiring entity in business?

22. Independent ContractorEconomic Realities • Totality of circumstances • Is worker dependent on employer? • Worker’s services integral part of business? • Permanency of relationship • Amount of worker’s investment • Right to control • Opportunities for profit and loss • Level of worker’s skill

23. Independent ContractorAZ Worker Compensation - Hybrid ARS 23-902D • Written, signed, dated, no duress agreement • No authority to supervise or control • Disclosure that no worker comp benefits • No requirement of exclusive work; no combination of business operations • No provision of required licenses • Fixed amount by contract; not wage/salary – paid to name on contract • Termination restrictions • No tools or time of performance dictated

24. Arizona and Federal Wage and Hour Law

25. FLSA Overtime 40 hour workweek Definition of working time Compensatory time only in public sector Wages and salaries Why not pay salaries to non-exempts? How to pay overtime in 29 CFR 778 White Collar Exceptions in 29 CFR 541

26. Arizona Wage and Hour Laws Wage definition – whatever is expected Minimum Wage – now at $7.80 per hour Timing of pay – at least twice monthly Type of pay – cash or check Paycheck deductions – need employee signature Payment upon termination – 7 working days if fired; next regular payday if quit Wage claims – election of remedies Recordkeeping – all employees must do

27. Typical Wage and Hour Problems Assumption that business is exempt Assumption that employee is exempt No pay for unauthorized overtime No overtime pay for salaried non-exempts Illegal deductions from pay Inaccurate recordkeeping Not paying for all hours worked

28. Nursing Mothers Break PPACA amendment to FLSA Only applies to non-exempts First year after baby arrives Unpaid 30 minute break to express milk Can be combined with paid breaks Private place to have the break More protection if 50+ employees

29. Family Medical Leave Act Family Medical Military FAMILY MEMBERS New poster New coverage Strict liability if make any mistakes

30. EEOC 2013 Priorities Eliminating barriers in recruitment & hiring Protecting immigrant, migrant & vulnerable workers Addressing emerging issues (e.g. LGBT) Enforcing equal pay laws Preserving access to the legal system Prevention of harassment through systemic enforcement and targeted outreach AND Publicly collecting money from employers!

31. EEOC ChargesFY 2012 in Arizona Retaliation – all 40.4% Retaliation – Title VII 30.8% Disability 30.3% Sex 29.4% Age 25.3% Race 21.1% National Origin 15.3%

32. GINA InadvertentDisclosuresGINA Safe Harbor • Request for medical information • FMLA, Fitness for Duty, worker comp, examinations • Go through HR • Use Safe Harbor Disclaimer • Overhearing conversation • Casual conversation – do not pry! • Unsolicited email or letter • Voluntary wellness program • Internet and other media • Cannot troll for genetic data on social media or Internet • Cases are now being litigated by EEOC

33. Sexual Orientation • Title VII does not protect, but stereotyping/gender nonconformity may offer protection • 21 states and the District of Columbia have laws that prohibit sexual orientation discrimination • City of Phoenix ordinance – new in 2013

34. 2013 Supreme Court Cases Vance v. Ball State University Fisher v. University of Texas DOMA and Proposition 8 cases

35. U.S. Supreme CourtRetaliationCases • University of Texas Southwest Medical Center v. Nassar (2013) • Staub v. Proctor Hospital (2011) • Thompson v. North American Stainless (2011) • Burlington Northern v. White (2006)

36. OSHA www.whistleblowers.gov 21 Federal Laws Transportation Consumer/investor Nuclear/environmental

37. Unemployment Insurance Employee’s Burden of Proof

38. Medical Marijuana • No tolerance? • Medical Marijuana and HB 2541 • Testing • Arizona Drug Testing of Employees Act • Results of testing • Cardholder? Safety Sensitive? Impaired? • Disciplinary process

39. Proposition 203Arizona Medical Marijuana Act No smoking in public place DHS rules on public place What about food ingestion? No operation of vehicles No negligence or malpractice No discrimination Unless lose federal license or benefit Can prohibit ingestion at work Positive test insufficient to prove impairment

40. HB 2541Effective April 12, 2011 Extends Drug Testing of Employees Act to public employees Defines impairment Defines safety sensitive positions Member interface covered Employer can exclude medical marijuana user Defines good faith Permits employers to take action based on good faith and receive Act’s protection from litigation Permits employers to check DHS verification system

41. Resources www.azlaborlaw.com www.dol.gov/whd www.healthcare.gov/law www.eeoc.gov www.nlrb.gov www.osha.gov http://www.irs.gov/uac/Affordable-Care-Act-Tax- Provisions Arizona Employment Law Handbook State Bar of Arizona at www.azbar.org www.ica.state.az.us

42. Questions?