Top 5 HR Policies Facing Pennsylvania Employers in 2013


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Presentation I made to a local Chamber of Commerce in 2013

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Top 5 HR Policies Facing Pennsylvania Employers in 2013

  2. 2. 2 Top 5 HR issues [Excluding Healthcare Regulations] 1. FLSA Compliance 2. Weapons in Workplace 3. National Labor Relations Board Decisions 4. Right to Work Legislation in PA 5.5. Use Of Arrest And ConvictionUse Of Arrest And Conviction Records In Making EmploymentRecords In Making Employment DecisionsDecisions
  3. 3. 3 HR QUIZ 1. FLSA applies to enterprises with at least $5,000,000 annual gross revenues or those engaged in interstate commerce True / False 2. The Fair Labor Standards Act allows employees to recover pay up to __ year(s) of back pay ¦ 1 ¦ 2 ¦ 3 ¦ 4 ¦ Only $500,000
  4. 4. 4 4. For first criminal conviction under FLSA, violators are subject to a fine of up to $10,000. –True / False 5. For subsequent convictions under the FLSA, violators are subject to a fine of up to $10,000 or imprisonment for up to six (6) years, or both. –True / False 6. Falsification of records by an employer during a DOL investigation subjects the employer to criminal prosecution. –True / False 8. 7. An employer is deemed to have showed reckless disregard for the FLSA if it is proved that the employer should have inquired further into whether its conduct was in compliance with the FLSA but failed to do so. –True / False HR QUIZ - II Imprisonment is only for up to 6 months
  5. 5. 5 FLSA Compliance Enforcement  EEOC Approves Strategic Plan Focusing on SystemicEEOC Approves Strategic Plan Focusing on Systemic Discrimination andDiscrimination and ““Enforcing Equal Pay Laws”  EEOC proposes to collect data on whether employees understand their classification (employee vs. independent contractor) and whether they understand what that classification means for pay and benefits.  Lilly Ledbetter Fair Pay Act passed ¦ January 2009  Stay Tuned for The Fair Pay Act [introduced] if passed, would require employers to provide equal pay for jobs comparable in skill, effort, responsibility and working conditions, and require employers to disclose pay scales and rates for all job categories at a given company.
  6. 6. 6 RECENT ENFORCEMENT TRENDS 1. Misclassifications…  Computer Professionals; Field Service Reps; Inside Sales /Customer Service Reps; Secretaries; Accounting Positions….AND MORE 1. Off-The-Clock Activities  App now available from DOL-WHD  Working during Meal Break  Pre-work/post work preparation activities 1. Independent Contractors  PA Construction Worker Misclassification Act  Day-Laborers paid as contractors  Retired employees returning as consultant and only have one client [the past employer]  IRS Red Flag Filing: receiving both form1099-misc and W-2 for same worker will likely cause such an audit.
  7. 7. 7 Weapons in Vehicles In Pennsylvania: Are employees allowed to have firearms or weapons in or on vehicle on Employer’s Property property? NO YET!
  8. 8. 8 EMPLOYER SAFETY OBLIGATION OSHA REQUIREMENT Each employer must provide every employee a workplace that is free from "recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." – Known as “general duty clause” because it requires employers to do whatever they can to ward off unanticipated hazards. – Employers that fail to do so can be cited by the U.S. Department of Labor
  9. 9. 9 Develop Policy… Prohibiting Weapons-In-Workplace!!! Communicate & Post Policy Define Weapons Deadly and offensive weapons may include, but are not limited to:  Firearms, loaded or unloaded  Pellet, flare, tranquilizer, stun, spear, or dart guns  Knives with blades larger than a small folding knife  Any cutting instrument where the blade is exposed in an automatic way  Daggers or swords  Striking instruments, including clubs, truncheons, and blackjacks  Martial arts weapons  Bow and arrow combinations  Explosive devices  Ammunition or components to manufacture ammunition Post Signs
  10. 10. 10 National Labor Relations Board Decisions NLRB has been pursuing aggressive pro- union agenda through rulemakings, case decisions, and enforcement. Concerns for employers include:• Disclosure of Employee Information • Mini-Unions • Concerted Activity • Social Media • Confidentiality of Workplace Investigations • Employment At-Will Language • Non-Solicitation Rules
  11. 11. 11 At-Will Disclaimers in Employee Handbooks and Offer Letters American Red Cross Arizona, Case 28-CA-234334 (February 1, 2012). The following at-will language in a handbook was found unlawful by an Administrative Law Judge of the NLRB: “I agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” “I understand my employment is ‘at will’” and “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me” and executives. Invalid: NLRB reasoned that it could be seen to prohibit rights of employees to engage in concerted activity.
  12. 12. 12 Right to Work Legislation in PA ??? Where union is in place, the right to refrain from union membership or to to refrain from paying union dues Twenty-two (22) states were right to work states Before 2012. Two more right to work states added since –Indiana –Michigan. Proposed legislation in Ohio, WISC., & PA
  13. 13. 13 New Guidance On Use Of Arrest AndNew Guidance On Use Of Arrest And Conviction Records In Making EmploymentConviction Records In Making Employment DecisionsDecisions Pennsylvania Criminal History Record Information Law (CHRI)  Felony and misdemeanor convictions may be considered by Employer only to extent related to applicants suitability for employment in position for which he/she applied.  If decision to not hire is based in whole or in part on CHRI, must notify applicant in writing.  Pennsylvania Human Relations Commission Employee Selection Guidelines  Prohibits consideration of misdemeanor convictions  Business risk decision as to what to consider
  14. 14. 14 EEOC GuidanceEEOC Guidance Issued April 25, 2012 Provide Applicant Opportunity to ExplainProvide Applicant Opportunity to Explain  Accuracy of Criminal Record  Facts & circumstances surrounding offense  Number of offenses for which individual was convicted  Age at time of conviction or release from prison  Evidence that individual performed same type of work, post-conviction, with same or a different employer, without incidents of criminal conduct
  15. 15. 15  Length & consistency of employment history before and after offense  Rehabilitation  Employment or character references and other information regarding the individual’s fitness for the particular position; and  Whether individual is bonded.  If individual does not respond to employer’s inquiries, employer may make its decision without the information. EEOC GuidanceEEOC Guidance Issued April 25, 2012 Provide Applicant Opportunity to ExplainProvide Applicant Opportunity to Explain