October 6, 2015

Labor laws that often trip up employers

By Jim Annis

It's lunch time. Your friend and fellow CEO starts to lament about being fined by the state for Nevada Revised Statutes (NRS) infractions. What do you do? a) Buy him a beer; b) give him the name of a good labor lawyer; or c) drift off to sleep (the NRS topic is a real snoozer) while wondering, "Have I made the same mistake?" NRS may evoke a yawn, but compliance is important. Take a look at the checklist below for the laws that often trip up employers.

Daily overtime. Employers as a rule do not comprehend. We've simplified it. If your employee makes one and one-half times minimum wage or less they get daily overtime. If your employee makes one and one-half times minimum wage or less they get daily overtime. If your employee makes one and one-half times minimum wage or less, they get daily overtime. Did we get through? And remember, Nevada has a two-tiered minimum wage law depending on the offering or non-offering of health insurance. This makes the daily overtime amounts two-tiered also.

Track ALL employees' hours. NRS say "all employed," which means that you must track even salaried employees hours. Employers must track ALL employees hours (said again for impact). For employers with 50 or more employees, 1,250 hours are necessary for an employee to qualify for the Family Medical Leave Act (FMLA). With the Affordable Care Act (ACA), employee hours are needed to perform related calculations to determine when ACA "pay or play" has to be considered.

NO rounding of hourly time. Never. Our labor law attorney advises us to detail down to the minute. If you insist on rounding, round in favor of the employee.

Independent contractors: You can’t just decide if you want to make someone an employee versus an independent contractor.The IRS has a very stringent checklist to qualify as an independent contractor and the labor board will challenge this.

Ban-the-box. Ban-the-box (related to the EEO statement on felonies) laws typically prohibit employers from inquiring about a candidate’s prior criminal convictions on a job application. The law focuses on providing a fair chance to applicants with prior criminal convictions. African-Americans and Hispanics typically are convicted at a rate disproportionately greater than their representation in the population; therefore they may be disparately excluded from employment. On the other end of the spectrum, employers must be proactive in their review of a candidate’s background to avoid claims of negligent hire, reputational harm, and injury to the workplace. An employer can demonstrate business necessity of non-hire by showing it considered three "green factors" in making its decision: 1) The nature and gravity of the criminal offense(s); 2) the time that has passed since the conviction and/or completion of the sentence; and 3) the nature of the job held or sought. Nevada does not have ban-the-box laws, but other states, cities, and counties do.

Payment at termination. NRS say payment at termination must be immediate. You cannot take the cost of tools out of someone's paycheck, no matter how tempting, unless you had a pre-signed arrangement. Once you get someone to go to the labor board and complain, you just opened up the can of worms for all employees — current and former — for infractions. Proactively put a policy in place with expectations and also pursue other means to recover them post-separation.

You are a busy CEO. Save your energy. Instead of figuring out how to not comply with NRS, just know that whatever you think is a good idea has already been thought of and addressed in the law. As HR professionals, we have not come across anyone who has come up with something new. Put your earnest efforts into compliance instead!

Jim Annis is president/CEO of The Applied Companies, which provide HR solutions for today’s workplace. Celeste Johnson, Applied's COO, contributed to this article.

Read article in the Reno Gazette-Journal here.

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