Tag Archives: United States Department of Labor

Labor Secretary Targets Business

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(This post was written by Rick Dacri on September 12, 2012)

Employers are on notice. The new Labor Secretary is honing in on issues of concern to the business community.

New U.S. Labor Secretary Perez has introduced an aggressive agenda. In a speech to organized labor on Tuesday, he targeted four areas of attention:

  1. Aggressively enforcing wage laws
  2. Improving workplace safety
  3. Stopping the misclassification of workers as Independent Contractors—a practice he calls “workplace fraud”
  4. Promoting unionization

While much of this was expected, it should be a wake up call to some employers to make sure their houses are in order. DOL has aggressively pursued wage and hour issues, particularly around violations of overtime and break regulations. DOL, the states and the IRS have been clamping down on Independent Contractors. In fact, the IRS has published a 20-point test that all employers who employ ICs should review. OSHA has been targeting specific industry groups while unions struggle to remain relevant.

While we can expect that the DOL will continue to push these issues, as a matter of good business practice, employers should review all their systems and policies to ensure you are complaint. Penalties are severe. Call me if you need some help.

If you want to know more about how I can help you, click Dacri & Associates.

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Aging Workforce: Few Employers Prepared

We’re Running Out of Time

This article, written by Rick Dacri, was originally published in the York County Coast Star on June 20, 2013

When my wife and I built our house, we had two gas fireplaces installed. Beyond the ambiance, we wanted convenience and warmth for those cold Maine winters. We also added back-up, battery-operated starters in case we lost power. Turns out you need electricity to start a gas fireplace. Well, they work perfectly and they were a Godsend during the last ice storm. While we love to be warm, we also enjoy everything else that requires electricity, so we have since bought a generator that automatically clicks on when the power goes out — an all-too-frequent occurrence where we live. And if the generator fails (it did during the hurricane), I have a service to call that immediately responds.

It is important to take preventative actions to ensure safety and security. I faithfully replace my smoke detector batteries twice a year. But while they may warn me of a fire, I also have my escape route planned if we need it. Prevention and contingency plans are essential.

The Maine Department of Labor recently released a report written by the Center for Workforce Research and Information detailing how the state’s sluggish population growth, combined with an aging workforce, will lead to slow workforce growth. While this is a valuable and well-written study, it offers nothing we don’t already know. Just look around most workplaces and you see a lot of grey hair. Employees are getting older and there are fewer young people available to take their places.

Maine has the oldest workers in the nation. The median age of our workers is 43 years old and within 20 years, at least 40 percent will be over 65. As Boomers retire — and their exit has already begun — we need to replace them with experienced workers. But with an aging population comes low birth rates (you get the picture).

So what are businesses’ contingency plans? Unfortunately, few are ready. As many senior leaders plan to retire over the next three to five years, many organizations are just realizing that succession planning must be put in place. The recession gutted most training and development initiatives, not to mention any “excess” workers, so companies’ bench strength is weak. Employers will now be forced to quickly beef up their recruitment efforts in order to attract badly needed replacement talent — which exposes another problem: the skills shortage. The war on talent that seemed to end in 2008 with the “great recession” will now resume with a vengeance.

While the news is not good, employers do have a little time to right their ships. Training and development must be significantly increased; succession planning for leadership and key staff should be put in place; and recruitment programs must be implemented.

Education and government also have a big role to play toward attracting workers to our state and educating our young people for the world of work. Immigration reform, as I discussed in last month’s column, is also a critical part of the equation.

There are a number of initiatives throughout the state partnering business, education and government, all focused on addressing this problem. More is needed. Employers who take a wait-and-see approach will find themselves at a competitive disadvantage. A focus on the people side of the business, an area many managers find too complicated to handle, must become a top priority. While cooperative efforts are important, where they don’t exist, employers must go it alone. And that means commitment, time and investment. Everything else will fail without skilled talent. This problem is not going away.

Contingency plans and actions must be adopted and implemented now. The lights are flickering. Hoping they’ll stay on is a mistake. It’s not a question of whether they’ll go out or not, it’s when. Remember, we live in Maine. You want that fireplace and generator ready to fire up. We’ll need them.

To learn how Rick Dacri can assist you with planning, click Dacri & Associates.

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Independent Contractors in Labor’s Cross Hairs

imagesThe U.S. Department of Labor is once again putting Independent Contractors in their cross hairs. The issue for Labor is whether employers are properly classifying employees to avoid paying overtime and payroll taxes. As I have noted in several blogs, the regulators, both on the state and federal level, are actively pursuing those they feel are violating the law.

Several industry groups including construction, technology, trucking and home health care are targeted, but no industry group or company is exempt from scrutiny.

To protect your organization, a complete review of all your Independent Contractors is needed. The DOL, IRS and the respective states have published, though very complicated, guidelines. My advice, audit your positions now.

 Call me if you need assistance.

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New FMLA Poster with Changes: Post on March 7

imagesAll covered employers (50 or more employees in a 75 mile radius) are required to display and keep displayed a poster prepared by the U.S. Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

Several of the changes to the FMLA regulations, including military caregiver leave for a veteran, qualifying exigency leave for parental care, and the special leave calculation method for flight crew employees, will be effective on March 8, 2013.

You may start using the new poster now. To download the poster, click here.

To get answers to you human resource/employee questions, contact my HR HelpLine.

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Independent Contractor Standards for Maine

Maine’s new definition of an independent contractor applies to unemployment, wage and hour and worker’s compensation cases according to the State Department of Labor Press Release

 The new independent contractor definition goes into effect Dec. 31, 2012, replacing the current definitions under both the Workers’ Compensation Act and the Maine Department of Labor. Both agencies will operate under the same definition for all cases originating after the effective date.

This new law clarifies the conditions under which a worker should be classified as an employee or as an independent contractor. The independent contractor standard will be applied uniformly in the unemployment, wage and hour and worker’s compensation laws.

Under the new law, both the Maine Workers’ Compensation Board and the Maine Department of Labor will use the new standard to determine whether a person who performs services for payment is an employee or an independent contractor. Independent contractors must be free from the essential direction and control of the employing party and meet several other criteria.

Also included in this new law are clear penalties to deter the intentional misclassification of workers as independent contractors when they are employees per the standard. This practice not only creates a competitive disadvantage for those employers who correctly classify their workers but also increases unemployment tax premiums because fewer employers are paying appropriate taxes. Therefore, the new law includes penalties ranging up to $10,000 to deter this practice.

The criteria of the new law: Continue reading

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Employee Medical Information: Be Careful What You Ask For

(This guest post was written by attorney Glenn Israel from Bernstein Shur)

Earlier this week, the national department store chain Dillard’s agreed to pay $2M to settle a discrimination claim based upon its policy of requiring absent employees to provide a doctor’s note stating the medical reason for the absence. The U.S. Equal Employment Opportunity Commission took the position that once a doctor confirms the employee was absent for medical reasons, the employer is not entitled to ask for any additional information. This is consistent with the approach taken by the U.S. Department of Labor with regard to Family and Medical Leave Act requests. The DOL medical certification form asks the doctor to state whether the employee has a medical condition that prevents the employee from performing one or more essential functions of his or her job and also asks the doctor to “describe other relevant medical facts” which “may include symptoms, diagnosis, or any regimen of continuing treatment.” The DOL form does not, however, require the doctor to provide any of that additional information.

In a recent case that I handled in Maine, an employer and a mid-level supervisor found themselves in front of the Maine Human Rights Commission for asking one too many questions. The supervisor noticed that one of his subordinates was acting strangely and asked the employee if she was “on drugs.” The employee said “No, but I do take medication.” The supervisor innocently asked “For what?” The employee then revealed her mental health diagnosis to the supervisor and filed a claim with the MHRC.

The take away point is don’t ask too many questions. Here are some things you can ask an employee: Continue reading

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Department of Labor Releases Timesheet Smartphone “App” for Employees

The U.S. Department of Labor today announced the launch of its first application for smartphones (http://www.dol.gov/whd) , a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

 Recommendation: The DOL’s new app makes it especially important for employers to ensure the consistency and the accuracy of their time-reporting mechanisms. In particular, employers should make sure that their employees understand that the company’s timekeeping mechanisms are the basis for their pay and the company’s compliance with applicable laws, and those records must be filled out completely and accurately regardless of whether the employees are using any other means for tracking their time. In addition, employers should not in any way discourage their employees from using the application lest they be charged with retaliation against their employees’ exercise of rights under the Fair Labor Standards Act (FLSA).

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