The Employee Notice Rule is generally considered to be pro labor. The notice outlines the numerous rights under the National Labor Relations Act (NLRA). Among these rights are the right to organize, join, or form a union; strike or picket; as well as the right to complain directly to the employer. The notice also explains many of the restrictions placed on employers under the NLRA. For example, the notice states that it is illegal for employers to fire employees for threatening to close a workplace if a union is created, question employees about union support, or firing employees because they choose to join a union.

The NLRB agreed to postpone the implementation of the date at the request of a federal judge. The rule is currently the subject of litigation and the NLRB believes that postponing the effective date will help resolve the litigation.

The Internal Revenue Service has recently announced that it will grant partial amnesty to employers who have classified workers as independent contractors when they are really employees (available at http://www.irs.gov/newsroom/article/0,,id=246203,00.html). The amnesty would be limited in scope.

Under this limited amnesty, employers who reclassify independent contractors as employees will pay only a portion of the employment taxes they would otherwise have paid for the year. Additionally, the IRS will waive any interest and penalties. The IRS has also stated that it will not audit participating employers for past years.

Despite this apparent show of good will, it is important to note that the IRS has stated that is may share the information with state and other federal agencies. As a result, it is important that those who may take up the IRS’s amnesty offer consult with an attorney so that they understand their rights, obligations, and potential liabilities.

Although the new law is easier for employers to comply with, it may end up reducing the total number of hours a minor may work. For example, if school was in session for only two days in a particular week (at 7 hours per day), the minor would still only be able to work 24 hours. Under the old law, the student would have been able to work 34 total hours during that week.

Although the rest of the law remains the same, it is important for employers to remember that a minor may not work before 6:00am, even on the weekends. This point is especially important for employers in service and hospitality businesses (such as restaurants and golf courses) whose employees’ shifts often start before 6:00 am.

In order for an oral complaint to be effective under the FLSA, the complaint must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for protection.” While the Court declined to elaborate on the standard further, the impact on employers is that they need to be mindful and responsive to their employee’s complaints. Careful consideration of these complaints is essential.

This decision may also affect the interpretation of other statutes such as the Occupational Safety and Health Act, the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act, which all include similar language in their anti-retaliation provisions.

For more on this decision please check out this article by the New York Times.

This article was written by Mark S. Demorest, President & Managing Member of Demorest Law Firm.

Have you ever stopped to consider what these types of employee time theft are costing you? An employee who robs you of 5 minutes per day 5 days per week is stealing the equivalent of approximately 2.8 days per year assuming an 8 hour work day.

If you pay an employee $15 an hour and that employee is stealing 2.8 days per year, it’s costing you $396 per year considering a factor for payroll taxes and employee fringe benefits.

If your employee steals an hour a day 5 days per week the cost of the theft has just skyrocketed to 33 days per year and $4,680 again considering a factor for payroll taxes and employee fringe benefits.

How can you control expensive employee time theft? Clearly state policies in the personnel guide and have employees sign it to be sure they have read the guide and understand the policies. The guide should include policies on personal phone calls, cell phone use, internet use and working hours as well as policy relating to tardiness.

Let your employees know how much you are willing to tolerate—you can disallow personal phone calls except in the case of an emergency. Talk to “tardiness” offenders—tell them their pay will be docked or worse—remind them that everyone in the office is a professional, and professionals don’t punch a time clock. Make it clear that cell phone use of any sort or “surfing the net” will not be tolerated UNLESS it is business related.

The key is to be aware of the situation, bring it to the employee’s attention, specify the ramifications should they fail to modify their activities, and consistently enforce the penalty you have set. If it’s clearly a matter of policy, you take the emotion out of your reaction and simply make a good business decision.

This article was written by Gary Field, CPA at Numerico, PC. Click here to view Numerico’s website.

The most important provisions in a severance agreement are those regarding payment, non-competition, and the release of claims. In a severance agreement, the employee typically agrees to accept payment in exchange for agreeing to release employer from claims he or she may have against employer. It is also very typical for a severance agreement, like many employment agreements, to include a non-compete provision. An agreement not to compete should be reviewed for reasonableness, which will vary depending on the specifics of the situation.

It is recommended that employers offer the terminated employee a reasonable period of time to consider signing a severance agreement with a release. A release is unenforceable unless the employee voluntarily executes it, i.e., the execution is not the result of duress or coercion.

Employers should make sure to have legal counsel draft or review their severance agreement to ensure that the employer is adequately protected. Employees should consult legal counsel before signing a severance agreement to ensure that the agreement terms are fair and reasonable.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

A recent Michigan Court of Appeals ruling in the case Reicher v SET Enters, Inc (click here to view) decided that a settlement agreement between the representative and principal after the representative was terminated and had filed a lawsuit against the principal can negate the non-waiver rule.  In other words, when Reicher decided to settle his claims against the principal he signed away his rights to protection under the SCRA.  When the principal breached the settlement agreement, the statutory penalties under the SCRA did not apply.  Reicher was limited to the damages for breach of contract.

The non-waiver provision will still apply to a contract or agreement establishing or modifying the business relationship between the principal and the sales representative, but does not apply to post-termination agreements.

Among other arguments, the Plaintiffs contended that the regulation violated the common-law right of an employer to discharge an employee at will and, therefore, was void.  However, the Michigan Supreme Court rejected the argument, citing the well established case, Suchodolski v Michigan Consolidated Gas Co., and holding that an employer is not free to discharge an employee at will when the reason for the discharge contravenes public policy. 412 Mich 692, 695 (1982).

Michigan is an “employment-at-will” state.  This means that private sector employers can hire and fire employees for any reason, unless that reason is illegal.  Likewise, employees can quit for any reason.  Exceptions to this rule include when an employment contract exists or when the reason for discharge is against public policy, as was the case in McNeil v Charlevoix County.

Michigan is not one of the thirty states that has adopted smoker’s rights laws.  Therefore, while most Michigan private sector employers may be permitted to hire or fire an employee based on their smoking habits, a regulation like the one highlighted in this recent Michigan Supreme Court decision provide employees who smoke certain rights even in the at-will employment setting under the public policy exception to the Michigan at-will employment doctrine.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm. Click here to view her professional resume.

Under the Bullard Plawecki Employee Right to Know Act, employees are entitled to review their personnel records, make copies of those records, and file written statements clarifying or protesting any documents contained in their file. An employer’s use and disclosure of employee records are regulated by this Act as well.

The following are some of the important provisions of the Employee Right to Know Act that every employer should be aware of:

(1) Employers must make the personnel records of both current and former employees available to those employees upon written request, but not more than 2 times per year.

(2) Not all records are considered “personnel records” available for review by the employee.  Only records kept and used by an employer in determining an employer’s qualifications for employment, promotions, transfers, additional compensation, or disciplinary action must be available to employee for review.  Records that are not required to be open for review include, but are not limited to:  employee references, employee medical records if available to employee by other means, personal information regarding a third party which could be an invasion of privacy, and documents related to employer staffing plans.

(3) Employers may charge that employee for reasonable copying charges.

(4) If an employee disputes any of the information contained in his or her personnel file, the employee is entitled to submit a written statement explaining his or her position.  If either employer or employee knowingly put false information in the personnel file, legal action may be taken to remove such false information.

(5) An employer is prohibited from using in a judicial proceeding any personnel record information which was intentionally not included in the personnel record, but should have been as required by the Act.

(6) Any violation of the Employee Right to Know Act by an employer is grounds for a civil lawsuit.  A court may order the employer to comply with the statute and award an employee damages, including reasonable attorney’s fees and costs.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm. Click here to view her professional resume.