What’s in store as we begin 2012? Robust agencies with more aggressive tactics, says attorney Charles Plumb, but you can prepare yourself to fend off the worst of it.
Plumb, a partner with McAfee and Taft in Tulsa, Oklahoma, made his remarks at BLR’s Advanced Employment Issues Symposium in Las Vegas. He was joined by panelists Dinita James, partner with Ford & Harrison in Phoeniz, Arizona and Stacie Caraway, of counsel with Miller & Martin in Chattanooga, Tennessee, in a wide-ranging discussion of the challenges of 2012.
Wage and Hour Litigation
Look for DOL’s Wage and Hour Division to be even more aggressive in 2012, says James. Where you used to get a letter, then a phone call, and then an investigator, now you’ll get more than one approach at the same time.
Caraway noted that one of her clients is getting daily aggressive phone calls.
Where you used to be able to self-audit, DOL will now insist that the investigator make back pay determinations, says James. Where you could typically resolve complaints with full back pay, DOL will now likely want to assess civil penalties—and guess what—those dollars go back to the Wage and Hour Division to fund more investigations.
DOL is also increasingly teaming up with other agencies—state agencies, workers’ compensation, unemployment and tax agencies, all of whom have an interest in failure to pay or underpayment of employees.
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Plumb notes that we may also expect in 2012:
- More aggressive action by agencies
- More sharing of information between agencies
- Aggressive investigators that want to see every piece of paper
- Increased scrutiny of wage and hour settlement agreements
- The adding of state law claims to many federal claims
- Continued emphasis on independent contractors
- Increased activity from an increasingly more sophisticated and knowledgeable workforce.
- No end in sight in wage and hour litigation—the availability of attorneys’ fees make this area a lucrative one.
Wage and hour advice from Caraway: “Don’t try to take these agencies on yourself; you have to have a seasoned attorney with you.”
Looking Ahead to Retention in 2012
There is substantial pent-up demand for employees to change jobs and to move to other companies, says James. Many have stayed with their company longer than they would like to because of the economy, but when the job market picks up, look out. Employers should focus on what you need to do to retain your best employees when this happens, she says.
NLRB Heating Things Up
The NLRB has become a pro-labor agency, says Caraway. One of the things they are doing is trying to shorten the amount of time before an election is held. You may think that this is fair, Caraway says, because both the company and the union would have the shorter time. But the union still gets an advantage; it can start the process months early.
Because of that, Caraway suggests that companies plan for anti-union training with supervisors in first quarter 2012. Teach them what to look for and what to say.
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Beware that the new notice that all employers will have to post as of April 30 is a “roadmap for organizing,” Caraway says.
The second thing all companies should do, she adds, is to update their social media policies to eliminate any global language prohibiting negative talk or prohibiting discussing terms and conditions of employment. Such clauses will be interpreted as violating the employees’ right to engage in concerted activity.
In tomorrow’s Advisor, the panel’s recommendations regarding the ADA, plus an introduction to the all- HR-in-one website, HR.BLR.com.
Happy New Year from Steve, Rafael, Allison, Amanda, and Denise.