Employment and Immigration Law Updates at the 2019 SE Lumber Manufacturers Spring Meeting and Expo

1. The 2019 Southeastern Lumber Manufacturers Assoc., Inc. Spring Meeting and Expo March 8, 2019 EMPLOYMENT ISSUES JAMES W. WIMBERLY, JR. Wimberly, Lawson, Steckel, Schneider & Stine, P.C.

2. WAGE-HOUR ISSUES • Know distinction between non-exempt and exempt employees. • White collar exemption – currently $455.00 per week or $23,600.00 per year, proposal under Obama Administration to raise to $47,476.00 – new rule expected to be published this month around $33,000.00. • On-call time - whether compensable depends upon whether time spent waiting for work is primarily for the benefit of the employer or not – important to offer reasonable amount of time to report to work, among other things. • Pay must be converted to regular rate on which OT is computed. • Later in the year, DOL plans to update its “Regular Rate” requirements, dealing with types of compensation that must be considered in determining OT pay.

3. ISSUES INVOLVING INDEPENDENT CONTRACTOR AGREEMENTS AND JOINT EMPLOYMENT • Critically important because true independent contractor is not entitled to benefits or employment laws. • Prior administration considered “most workers are employees” and applied the Economic Realities Test. • Current administration has attempted to rescind these opinions and to follow the Common Law Test, such as the IRS 20-Factor Test. • Prior NLRB found Violation of Labor Act from misclassification as independent contractors, with the current NLRB attempting to reverse that concept. • Poster child for cases is Federal Express. • A good start is to have a written agreement with contractor and properly file 1099 forms, which may improve good faith defense (Section 530 of IRC). • Joint employment issues are similar and current definitions are in flux.

4. IMMIGRATION LAW OUTLOOK • Status of 700,000 DACA recipients. • Status of those on TPS. • Expect more aggressive worksite enforcement. • Know state and federal E-Verify rules. • Avoid constructive knowledge of illegal employment. • Paperwork violations range from $224.00 to $2,236.00 per employee or $4,473.00 for the first violation of each illegal employee employed. • Keep Form I-9 separate from employee personnel files. • Routinely destroy Form I-9’s after conclusion of recordkeeping rules. • Use tickler system to reverify. • Audit records to look for missing Form I-9s and complete existing forms. • Issue arises as to independent contractors – use protective subcontracting language.

5. PROLIFERATION OF RETALIATION CLAIMS • Retaliation is the most common discrimination-related claim and most dangerous. • Understand elements of retaliation claim. • Protected activity by the employee • Adverse action by the employer against the employee • A causal connection between a protected activity and the adverse action • Protected activity consists of invoking a statutory right or complaining about employer’s violation of a statutory right or duty. • Importance of certain policies, including EEO policy, harassment policy, and non-retaliation policy. • Strategies to avoid retaliation claims. • Possibly isolate the decision-maker from the complaint. • See what type of action taken for previous infractions. • Giving employees appropriate explanation

6. Proliferation of Retaliation Claims Cont’d. • OSHA announces favorable new attitude toward worker incentive and drug testing programs. • Prior administration OSHA took the position that it didn’t like these programs because they discouraged reporting of accidents or injuries. • Current administration reversed this, as long as certain steps are taken, including good reporting procedure and policy against retaliation for reporting and other positive steps to create a workplace culture that emphasizes safety. • New guidance does not solve all concerns because it is vague, but it is step in the right direction

7. AVOIDING HARASSMENT CLAIMS • Have a good and well-publicized harassment policy, provide training, and investigate and take appropriate remedial action when complaints arise. • Focus on whether the harassment tends to make someone uncomfortable, and refer to it as inappropriate conduct. • Improvements can be made in methods to report harassment and corporate culture. • More companies extend training to hourly employees, and conduct by-stander training. • Use proportional remedial action. • Be sensitive to inappropriate language and not just more serious harassment. • Respect for the individual might be a good theme.

8. HOW TO KEEP CASES OUT OF COURT AND AVOID CLASS/COLLECTIVE ACTIONS • Arbitration is quicker, cheaper, more private and avoids runaway juries. • A majority of non-union private sector employees are subject to mandatory individual arbitration. • Setting up arbitration policies and negating class/collective actions is complicated, and be aware of problems. • It is not for everybody, and there is no “one size fits all” policy.

9. HIRING AND RETENTION OF EMPLOYEES IN TODAY’S COMPETITIVE JOB MARKET