Quality v. Quantity: What Should Be Included in an Employment Contract?


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“Is it usual for my contract to be this short?” “Are employment agreements normally this long?” I receive these types of questions often from employees and business owners who are either presented with or preparing an employment agreement. My answer, “It is the quality, not the quantity, of the information in the agreement that matters.” Sometimes a short and sweet agreement is all that is needed. Generally, a short agreement reflects an at-will employment situation, where the employer or the employee can terminate the agreement at any time, for any reason. The agreement may go on to set out expected compensation (with a caveat that it is subject to discretionary change on the part of the employer), and set forth notice requirements that an employee must satisfy in order to be paid accrued (but unused) vacation time when the employment relationship ends. In other words, shorter agreements tend to resemble […]

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Defense Against Wage & Hour Claims: The Return of the DOL Opinion Letter


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An affirmative defense to a wage and hour claim under the Fair Labor Standards Act is like a warm blanket on a cold day. Good news – it is January and you, employers, are in luck – warm blanket style. On June 27, 2017, the U.S. Department of Labor announced that it would reinstate the issuance of Opinion Letters by its Wage and Hour Division. Back in 2010, the DOL replaced Opinion Letters with “Administrator Interpretations.” A short explanation of the difference: an Opinion Letter is the DOL’s official written opinion of the law applied to specific workplace circumstances, while an Administrator Interpretation is more of a general guidance on how the law relates to a particular industry. Opinion Letters are excellent for employers. Why? The specific facts analyzed in an Opinion Letter can be invaluable to helping an employer determine how to pay its employees in a manner that […]

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DOL Overtime Rule – What We Learned in 2017


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2017 – we were all prepped and ready for a huge change to employee overtime compensation. To refresh your memory, in May of 2016, the DOL published new regulations that raised the minimum salary level needed to qualify for a white collar exemption from the overtime compensation requirements of the Fair Labor Standards Act (“FLSA”) from $455 per week ($23,660 annually) to $913 per week ($47,476 annually).  Over the summer of 2016 and with an uncertain political climate, many business owners took steps to analyze the effects of the change on their business and put execution plans in place. Then, in September of 2016, two lawsuits were filed, challenging the change. Many, myself included, doubted whether the lawsuits, which were consolidated and assigned to Judge Amos Mazzant, a President Obama appointee, would have an impact. And, yet,  just two days after the Nov. 22, 2016, Presidential election, and only a few […]

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Interactive Process under the Americans with Disabilities Act: What You Don’t Do Can Hurt You


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For the most part, employers are familiar with and make every effort to comply with the Americans with Disabilities Act, as amended (“ADAAA”).  These compliant employers understand that the ADA prohibits discrimination against qualified applicants and employees because of a disability. These employers also understand that they must provide a reasonable accommodation to such individuals with a disability, absent an undue hardship. To determine if a reasonable accommodation exists, employers must engage in the “interactive process.” What I find to be an area of frequent misunderstanding . . . how does the interactive process – a mandatory requirement – work? Often employers take a solo approach to evaluating whether an accommodation can be made. This action, while well-intentioned, fails to satisfy the requirements of the ADA. The ADA requires covered employers to engage in an interactive process to determine the limitations created by the applicant’s or employee’s disability and how […]

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Internal Investigations in the Workplace


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Do you have clear policies in place that enable supervisory personnel to respond promptly to complaints of harassment and discrimination in the workplace? Are you training your employees to handle subsequent investigations? My thoughts: All employers should have a grievance procedure clearly outlining the steps an employee should take to make such a complaint. The policy should outline who the employee should contact and offer the employee the ability to bypass their direct supervisor should that person be the harassing party. A good grievance policy emphasizes that confidentiality will be maintained to the greatest extent possible, but, makes it clear that an investigation will require interviewing the alleged harasser, as well as relevant witnesses. Although confidentiality cannot be guaranteed, investigators should only disclose appropriate information on a need-to-know basis. Investigations should involve an interview with the complainant, as well as other involved parties and/or witnesses. Open-ended questions offer both parties […]

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