law

10 Employment Laws You May Be Breaking

Kate Lister — Sun, 06 Nov 2011 21:05:30 +0000

Link:

http://www.openforum.com/articles/10-employment-laws-you-may-be-breaking

The U.S. Department of Labor administers and enforces more than 180 federal employment laws. State and local governments heap their own regulations on top. With all those rules, laws, mandates and reporting requirements to keep track of, it’s easy to violate an employee’s rights without even knowing it.

I asked Jonathan Yarbrough, a North Carolina-based partner with Constangy Brooks & Smith LLP— a nationwide firm that concentrates solely on employment law—for some of the inadvertent violations he’s seen. Here are his top picks.

1. Want to fire that employee who has been complaining about her job, your customers and you? Doing so may be deemed an unfair labor practice under the National Labor Relations Act (NLRA) even if the employee does not have a union.

2. An employee fails to complete a mandatory drug test because they have a shy bladder and simply could not urinate with someone nearby. Can you fire them? The Equal Employment Opportunity Commission has recently opined that someone with a shy bladder could have a disability under the Americans with Disabilities Act (ADA). As a result of numerous amendments to the Americans with Disabilities Act, more impairments are considered disabilities than ever before.

3. With the increased focus on the cost of wellness, you might be inclined to refuse to hire or even terminate those with bad health habits, but doing so may violate their rights. Some states, such as North Carolina, have statutes protecting the off duty use of lawful products. So, if your employee wants to smoke a pack of unfiltered Camels, pound some cupcakes, and drink a fifth of Jack on his or her own time, you have no right to stop them unless they show up intoxicated or otherwise violate company policies.

4. "Oooh that smell. Can't you smell that smell?" Lynryd Skynryd probably wasn’t referring to an ADA violation in those lyrics but whether you smell it or not, doesn’t matter. An employee’s complaint about a co-worker’s lavish application of musk oil may be deemed a chemical sensitivity and considered an ADA disability.

5. Can you fire an employee who said they could work all shifts when they applied for the job but now says they can’t work after sundown Friday? No. You must first determine if you can reasonably accommodate the employee under Title VII of the Civil Rights Act of 1964.

6. Does your time keeping system automatically deduct meal breaks? What if an employee doesn’t take one? Under the Fair Labor Standards Act, if an employee tells their supervisor they did not get the meal break because they were working, the time must be paid. In general, the practice of automatically deducting break time is an invitation to a lawsuit.

7. Is a non-exempt employee who answers email at night or on a weekend entitled to pay for that time? If it’s more than trivial time and the employer knew or should have known the employee was working—as evidenced, for example by an email—FLSA says they have to be paid. Fact is, an employer has to pay non-exempt employees for all time worked.

8. Employers need to be especially careful about disciplining or terminating an employee who has complained to government agencies (or even internally) about such things as wages and hours, unsafe working conditions, financial wrongdoings, harassment, or other problems. There are dozens of whistleblower laws that protect employees from being penalized for raising a red flag.

9. Asking an employee about family medical history can be a violation of Genetic Information Non-Discrimination Act (GINA). While there are certain exceptions for casual "water cooler" discussions, it’s best to let all your employees know they simply cannot ask co-workers or subordinates about their medical history, or for that matter, details about their marital status, sexual preference, or family.

10. Your employee has exhausted the Family and Medical Leave Act allowance and is not back after 12 weeks. Can you fire them? Not necessarily. Additional leave can be a reasonable accommodation under the ADA although it cannot be open-ended—one essential function of every job is attendance.

How to Avoid Breaking the Law

Short of hiring a full time compliance person, how can you protect yourself from what you don’t know? Yarbrough offers some advice.

1. Make sure you have legal counsel with experience in employment law on call—not real estate lawyers acting as employment lawyers.

2. If you can’t afford an experienced HR professional, at the very least designate someone in your organization to handle HR issues and help them keep up to date by attending seminars and participating in HR organizations such as the Society for Human Resources Management (SHRM) to gain a body of knowledge.

3. Don't reuse employment documents from the Internet but if you do, have counsel review what you’ve pilfered. Your free find may cost you a bundle in the long run.

4. Make sure you have a harassment policy and provide training for all employees. They should know what you expect from them and what they can expect from you. Be sure managers, supervisors, and your information technology staff know how to respond to harassment claims.

5. Document, Document, Document. Or, more to the point, document properly. Juries, judges, the employment security commission, and anyone in the legal food chain expects a paper trail. “He said, she said” infuriates a jury.

6. Hire a professional to audit your employment practices, policies, postings, etc.

7. Treat employees with respect and dignity, even when you have to discipline or terminate them.

In employment, as in most fields, ignorance is not a valid defense. Employee lawsuits cost employers billions. Much of that cost could be avoided with an ounce of prevention.

This article is from Kate Lister of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

How will the federal minimum wage increase affect you?

Xin Lu — Wed, 08 Jul 2009 22:00:04 +0000

On July 24th, 2009 the federal minimum wage will increase from $6.55 an hour to $7.25 an hour. This amounts to an increase of 10.7%. How will this change affect you?

This change will raise hourly wages for millions of workers in 29 states that have minimum wages lower than $7.25 an hour. In some cases workers who already make more than the minimum wage will also get a pay bump because their coworkers who are making the current minimum wage are getting a federally mandated raise. However, this does not mean that every worker will end up with more money because businesses may be forced to cut hours to adjust to the change. For example, if a worker's hours are reduced by 15% then a 10.7% wage increase would not cover the shortfall.

Some are arguing that this is probably the worst time to increase the minimum wage since almost all businesses are dealing with decreased revenues in the current recession. Considering that this is not the first minimum wage hike since the beginning of the recession in December 2007 it is possible that this hike will make businesses such as retail stores and restaurants cut down on hiring or simply lay people off.

It is unlikely that businesses will be raising prices for their products in the current economy, but if hours are cut on minimum wage workers to reduce labor costs then consumers may be getting less customer service from certain businesses. This could cause some frustrations in the short term.

On the upside, this change will help families who are paid based on the minimum wage and will not get a reduction in work. A 10.7% pay raise is definitely very rare and valuable in the current recession. Additionally, a good amount of minimum wage earners are teenagers and young adults who will spend the extra money they earn. It is still unclear how much the larger economy will be boosted by this change because the extra pay has to come from somewhere. The extra economic activity generated by those who are getting pay hikes may just be balanced out by the decrease of spending by those who will be losing work.

What do you think? Will this hike in minimum wage affect your pocketbook? Is your company cutting hours or laying people off in response to the change?

This article is from Xin Lu of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

"Cash for clunkers" bill passed by Congress - what does it mean for consumers?

Xin Lu — Fri, 19 Jun 2009 07:09:50 +0000

A few months ago I wrote about several car buying incentives that were floating around. This was before the bankruptcy of Chrysler and GM and there was a rumor going around that the government would push consumers into buying new cars with a trade in program. Now it is official that a "cash for clunkers" bill has passed by both the Senate and the House. This $1 billion program was attached to the $106 billion war spending bill and offers vouchers to consumers who trade in their gas guzzlers. Here are some details on the program.

First, the cars eligible for trade in must be built in 1984 or later and get no more than 18 miles per gallon according to the Environmental Protection Agency's combined city-highway rating of a given model. You can find out the mileage per gallon of your car at http://www.fueleconomy.gov. The cars also have to be have been owned and insured by the purchaser for at least a year. I guess this is to avoid potential abuse where someone could purchase a piece of junk for a few hundred bucks and trade it in for much more money.

A consumer who trade in a car would receive at least a $3,500 voucher towards a car that gets at least 22 miles per gallon, and if the new vehicle gets more than 10 miles per gallon than the old car the voucher value would increase to $4,500. For small trucks and minivans that get at least 18 miles per gallon a consumer would receive a $3,500 voucher for a trade in that gets two more miles per gallon, and a $4,500 voucher for a trade in that gets five more miles per gallon. For a large truck that gets at least 15 miles per gallon a $3500 voucher would be issued for a trade in that gets at least one mile more per gallon, and a $4500 voucher would be awarded for a trade in that gets at least two miles more per gallon. The new cars must be priced at $45,000 or less, and both domestic and import brands are eligible.

The "clunkers" that are turned in by the consumers would be scrapped, so there is no trade in value other than the voucher itself. Therefore it would not make sense to turn in cars that are worth more than the voucher under this program. The $1 billion currently legislated is projected to last until September and the program is supposed to start sometime around August after the president gives final approval. The program is designed to last an entire year from the date of its enactment, but more funds for the program are yet to be found. It is possible that consumers may not have a very long time to take advantage of the program.

Obviously, car dealers have a reason to celebrate this new development because it is expected that it will lead to a lot of new car sales, but some are skeptical about the wisdom of this decision since it is another taxpayer funded program that seems to be bailing out a particular industry. Critics also say that the small amount of mileage increases required would not help the environment very much. What do you think? Do you have a clunker that you could trade in?

This article is from Xin Lu of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

How will the new credit card rules affect consumers?

Xin Lu — Wed, 20 May 2009 02:17:55 +0000

Today a new bill was passed by the U.S. Senate with the intent of restricting abusive practices in the credit card industry. A House bill was passed on May 12th and will be reconciled with the Senate version and President Obama hopes to sign it before Memorial Day. So what does this bill contain and what does it mean for consumers?

First of all here is a summary of the new rules:

Credit card companies will be required to mail a bill 21 days before it is due.
Universal default will no longer be allowed. This means that borrowers who are late or default on one card would not have their rates raised by another lender as long as the second lender is being paid on time.
Rates may not be raised on borrowers until they are 60 days past due. As long as the borrower becomes current and pays on time for 6 months after they were delinquent the rates have to be lowered to its original amount.
Extra fees for paying over the phone or online will be disallowed.
If you have more than one card with a company, your payments must be applied to the card with the highest interest rate first.
Issuers have to notify customers of rate changes 45 days before the change.
Late fees cannot be assessed if the issuer delayed crediting the payment.
Rates cannot be increased in the first year and promotional rates have to last at least six months.
Penalty fees for going over the credit limit is disallowed unless the cardholder agrees to it. If the cardholder does not agree to transactions over the limit then the transaction would be rejected.
Issuers must disclose the time and total interest costs it would take for consumers to pay off a balance if only minimum payments are made.
Gift cards must keep their full balance for at least five years.
Consumers under the age of 21 must have a co-signer who is willing to take on the responsibility of the debt unless they can prove they have the ability to pay. Most likely a parent has to co-sign. Additionally limit increases must be approved by the parent.

Finally, a completely unrelated amendment that is going into this bill is that you are now allowed to carry guns in national parks and wildlife refuges again. I am not quite sure that is in a credit card bill.

I think most of these changes are good since they are designed to stop consumers from falling into costly traps such as a $35 charge for being $2 over limit. Additionally, notifying a consumer how long it would take to pay off his or her debt is a good reminder as to how expensive credit can be and that notice with every statement may encourage people to pay more than the minimum. I think the item that allows a delinquent borrower to keep the same rate as before is a bit questionable because it could give people the impression that there is no consequences if they skip a payment or two. If a borrower becomes deliquent there is a higher chance that he or she would default, and so it makes sense to raise the rates to offset the risk. Another rule that I find somewhat detrimental and restrictive is that young people up to the age of 21 have to get a cosigner. This may prevent many responsible young adults from building up a credit history if they do not have a person who is willing to cosign.

Credit card companies generally do not make much money off borrowers who default completely, and the best customers for them are those who pay the minimum balance on time. Those who pay the entire balance on time and incur no interest or penalties are ironically known as "deadbeats" in the credit card industry. I think the changes will definitely prompt credit card companies to be more strict in who they hand cards to. This could mean that people with little credit history or low credit scores will have a harder time getting a card and the interest rates may be higher than now, but that may encourage more people to save their cash to buy things.

One potentially negative effect that has been discussed in many media outlets is that credit card issuers may want to recoup their "losses" on deceptive practices from the card payers who pay their balances in full every month. Reward programs may be cut, and the annual fee may return. However, I think consumers with great credit and the discipline to pay in full every month will just abandon the cards that try to squeeze more out of them. After all, issuers still make money off these customers through transaction fees. Even though the margin is smaller, these customers are better than those who default completely. I do believe that reward programs may be less rewarding in the future, so it might be worthwhile to cash in those points while the rewards are still good.

These changes will not go in effect until early next year, and the credit industry is not too happy with them. Do you think that these rules are reasonable? Have you dealt with any abuse from credit card companies?

This article is from Xin Lu of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

Would you get rid of credit cards if stores give more discounts to customers who pay cash ?

Xin Lu — Sat, 16 May 2009 20:23:51 +0000

I am sure you have encountered a store or gas station that has a set of prices for cash customers and a different set of prices for credit card customers. Usually the credit card customer has to pay a small surcharge. Under a new measure being considered in the U.S. Senate, retailers may be given the go ahead to give more discounts to cash paying customers. Would this encourage consumers to ditch the plastic?

Currently, credit card networks levy a small fee on merchants for every transaction. Usually the fee is around 1.5% to 2% of the transaction. Some smaller retailers may have to pay more and each card network has its own rules. The credit card industry has always tried to get retailers to charge the same price to cash customers and credit card users. When everyone is charged the same, merchants earn a little more profit on cash payers. Also, unscrupulous merchants who do not report all of their cash receipts to the IRS earn even more due to skipping taxes. So there is definitely an incentive for merchants to want more cash sales.

I have found that I tend to go to merchants who accept credit cards without a surcharge for the convenience and also the rewards. For example, there are two gas stations next to my house that are a block apart. One of them always has a cash price that is about 2 to 5 cents cheaper per gallon than the other station. However, if you pay by credit card the two stations give approximately the same price. I always go to the one that does not have a cash price because I get 5% back on gasoline purchases on my credit card, so it is not worthwhile to drive an extra block to the station with the cash price and pay cash. Another reason that I prefer merchants that take credit cards is that I just do not like to carry too much cash around. If I lose my cash I simply lose it without recourse, but losing a credit card is not as bad since the card can be cancelled.

If this measure does pass, I do not think merchants will be giving discounts that are extremely spectacular to cash payers since their cost for credit card transactions are fairly small. However, if the transaction amount is large enough it may be worthwhile for the consumer to pull out cash instead of plastic. For example, if you are buying something that costs $2000 and the merchant is giving a 5% discount to cash payers and your rewards credit card only gives 1% cash back, then it might be worthwhile to pull out the cash to save $80.

What do you think? Do you avoid stores that have different sets of prices for cash and card customers? If you always pay cash do you think it is unfair that credit card accepting merchants are making a little more profit off of you?

This article is from Xin Lu of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

What you can do to aid the conversion to digital TV

Xin Lu — Wed, 14 Jan 2009 09:06:04 +0000

The conversion from analog TV to digital TV was scheduled to happen on February 17th, but now it seems like it will be delayed due to various issues with the coupon program and general consumer education. Broadcasters are quite displeased with this delay because they have been looking forward to the savings they would reap from getting rid of analog transmitters and many consumers are simply confused as to what they are supposed to do. Here are a few things you can do to help with this transition.

1. Give your extra coupons away - Right now consumers are being put on waiting lists because the government's coupon program is tapped out. In case you only used one of your coupons for a converter, you could give the other one away to someone who needs it. You can organize a collection at your local church or school and give the coupons to the people that really need them.

2. Educate those you know with old TVs - Tell them that they do not need to buy a new TV and tell them about the digital converter boxes. It seems that a lot of people are abandoning their working TVs for new sets. This is good for the retail stores, but not everyone can afford a new TV right now.

3. Help someone purchase a digital converter - Rather than giving out your coupons, you could just go out there and buy a converter box that is free after the rebate and give the box to someone who needs it. People who are not up to date with all the latest gadgetry may find electronics stores very intimidating and could be suckered into buying more expensive things. It may be more helpful if you could save them the hassle.

4. Help people physically with setup - There may be someone you know who does not understand this new technological mumbo jumbo even if he or she had the converter box in hand. In that case you could help them out by setting it up for them. It does not take long to plug in a few cords and you will feel warm and fuzzy inside for saving someone's TV.

Many of us probably have no issues with this transition because we have relatively new TVs, but many elderly people depend on their old analog TVs for their entertainment and information. So before they are met with a blank screen, go out and help someone amidst this technological leap forward.

This article is from Xin Lu of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

The most important FREE piece of paper you'll ever receive.

Paul Michael — Mon, 22 Sep 2008 17:00:29 +0000

It is the foundation for the way the United States Government is organized. It is the supreme law of the U.S. And It was adopted on September 17th, 1787 in Philadelphia, Pennsylvania. It’s the United States Constitution, and you can get your hands on a free copy with free shipping .

I don’t need to tell you why this document is so important. The Constitution has held up for over two centuries and is the defining document of the U.S. Government. Right now, as both the Democrats and Republicans spar over the Presidency, one thing should never change…and that is the President’s duty to uphold the Constitution.

In recent times, many people have become concerned about the violation of the Constitution. Usually, the arguments surround The Patriot Act. But you cannot defend the Constitution unless you know what is in it. And it’s up to us to arm ourselves with that knowledge. I’m ashamed to say that I have been living in the United States for almost eight years and have never read the Constitution. Well, I’m changing that right now.

I have just ordered a copy of the Constitution of the United States, combined with The Declaration of Independence, FREE from The Heritage Foundation . You don’t pay shipping either. So, you really have no excuse not to pick up a copy. The Heritage Foundation will send you multiple copies if you need them, which is especially useful for teachers and scout leaders. If you’re ordering just one, simply put your name in the Organization/Group box.

Grab a copy, keep it handy. Whatever happens in the upcoming election, we cannot allow any administration to find ways around the document that makes the United States a bastion of freedom.

This article is from Paul Michael of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

My Purchase Rang Up Wrong! Could the Law Be on My Side?

Linsey Knerl — Wed, 27 Aug 2008 13:36:53 +0000

Whether you coupon, frequent the sales, or just like to keep your eye out for everyday low pricing, most of us are very aware of what we pay for our purchases. As the economy continues to worry shoppers, we will become increasingly more conscious of the prices we pay for everyday items (toiletries, food, and medicines) as well as the big-ticket ones.

Despite our best intentions, however, pricing errors do occur. Whether you get overcharged for an item, pay for more than one of something, or simply find a discrepancy between the shelf price and the scanned price, there are some very important tips you need to know about.

Federal law protects consumers. While it has been awhile since the last Price Check report conducted by the Staff of the Federal Trade Commission and the U.S. Department of Commerce's National Institute of Standards and Technology, it shows that the federal government has improper pricing and scanning on their radar. Weight and Measures officials tracked the accuracy of price scanners and register pricing in over 35 states to get the results revealed in the report. Pricing errors occurred more often in sale-priced items, and overcharges were slightly less common than instances of not charging enough. (Surprising, isn’t it?) The consequences for pricing errors can be a burden; In addition to lost revenue by not charging a customer enough (which is usually remedied less often than when a customer is overcharged), stores who display high numbers of pricing errors are subject to substantial fines or administrative and judicial orders.

State and local ordinances can remedy the problem. Once you have realized that you were incorrectly charged for your purchase, there are actions you can take to get your money back. At the time the study was released, not all states participated in the NCWM Procedure (which sets forth a method of sampling and verification for proper pricing and register scans.) States like Michigan, however, take the role of consumer advocate one step further. Their remedy (the Scanner Law) offers the following to overcharged customers:

If a customer is charged more at the register than the item is marked, they may get back the difference plus 10 times the difference (up to $5) as a bonus. The bonus is only available if the purchase is completed; pricing errors that get corrected at the register and don’t result in overpayment are not eligible.

Customers do not have to try to remedy the charges in store during their visit. Consumers have up to 30 days to ask for their money and bonus, and can do so with proper documentation via mail. The seller has two days to give your money back, and must do so in legal tender (cash), not gift certificates or store credit.

If the seller refuses to pay the difference and the bonus, actual damages or $250 may be sought (whichever is greater) plus attorney’s fees up to $300.

Multiple pricing errors on the same order will be honored by payment of the difference on all items, but only one bonus per order will be given.

Certain items do not have to be marked. These can include vending machine products, items sold by weight that are not prepackaged, live animals, packages of 20 or fewer cigarettes, and greeting cards that have a readable coded price on the back of the card.

(Note: This is an example of the Scanner Law in the state of Michigan. To get the full details of your own state or local jurisdiction, please contact your local attorney general.)

This article from the Cleveland Plain Dealer explains a recent audit for Ohio retailers and their rate of accuracy in pricing (a very interesting read.) While it reports that pricing errors are fairly uncommon, I may have to take issue. (For those of us who regularly watch sale pricing, request ad matches, and coupon, the rate of error increases dramatically. Plus, I think that we are more inclined to watch for pricing errors and would be more likely to catch one if it did occur.)

Do you know the pricing law in your state? How have pricing errors affected you in terms of time and money? Has recent pricing errors caused you to change your shopping habits (i.e. choose the self-scanning register, shop online, etc.)?

This article is from Linsey Knerl of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread:

Avoid speed-trap tickets with a radar & laser detector - Under $30

Paul Michael — Fri, 18 Jan 2008 20:02:59 +0000

I know I am going to get a bunch of negative feedback on this one so let me put those issues on the table immediately. This article is NOT intended to help people speed. In fact, I'm absolutely against speeding, being the father of two young children and a very careful driver. Radar detectors are a constant reminder to keep your speed down, and if you do happen to enter a dreaded speed-trap, this little device from Buy.com will save you the cost of a ticket and those inevitable insurance hikes.

Speed-traps are exactly that. They're places where high numbers of tickets are issued by police due to several factors, including poor signage, quickly changing speed limits and the demand for increased ticket revenue.

When my state (Colorado) had budget problems a few years ago, the number of tickets issued spiked significantly. My wife and I both got a ticket within 7 days of each other, on a stretch of road that goes from 55mph to 45mph to 35mph in the space of around 1-2 miles. The resulting tickets issued, and insurance raises, cost us well over $400 that year. And those costs continued until the tickets came off last year.

My best friend alsogot a ticket recently. He wasn't going above the speed limit, he was accelerating quickly from 10 to 30. The radar gun flagged him as doing over 50mph in a 30mph zone, but he had never even reached 30mph. THis is something that could probably have been successfully argued in court, but he did what most of us do...he just paid the ticket and took the point and insurance raises.

Enter the radar detector from Buy.com . It's less than $30 ($28.99, down from $99.95), comes with FREE shipping, windshield mount and power cord, and should help to make your driving both safer and less costly. Like I said earlier and I will restate, this is not a license to speed. Quite the opposite, it's something that you should use to stay legal, kill your speed and monitor your driving habits. I know plenty of people will have opposing opinions, and sure, there are boy-racers out there who are clearly using them for the wrong reasons. But my intent is to ensure you aren't caught in those speed traps that can take any of us by surprise, and end up costing us a fortune.

Is it legal? This should explain it all:

The FCC passed the Communications Act in 1934 to give all citizens the right to receive all types of radio transmissions. The same radio frequencies used by police radar are also used by other devices, such as automatic door openers, burglar alarms, and some amateur radio equipment. Since the RMR-D240 is just a radio receiver tuned to a specific portion of the public radio spectrum, it is protected under this act.

and this:

The use of a radar detector in a passenger vehicle is legal in all states with the exception of Virginia, Washington DC. and on military bases.

Radar detectors are illegal in all commercial vehicles weighing over 10,000 pounds

In Canada, the only three provinces that allow their use are Alberta, British Columbia and Saskatchewan.

Many overseas countries also ban their use, such as Portugal, Finland and Spain.

In areas that radar detectors are illegal, law enforcement use a device called the Spectre that is able to detect the use of radar detector in your car or truck.

Remember, stay safe and legal folks. Happy driving.

Note: $28.99 + free shipping deal correct at time of publication.

This article is from Paul Michael of Wise Bread, an award-winning personal finance and credit card comparison website. Read more great articles from Wise Bread: