Polsinelli at Work |  Labor & Employment Blog

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Six Steps Employers Can Take In Advance of a DOL Audit

By: Carol Barnett

If an employer is being audited by the US Department of Labor (DOL), there are several steps the employer can take to proactively prepare for and ultimately defend its practices: 

1. Review immediately and react to the audit request. Carefully review the DOL’s audit request and promptly advise management and legal counsel. In certain circumstances, the employer may work with the auditor regarding scheduling the date(s) of the audit.  

2. Provide responsive existing documents; check your employee rights posters.  Work with legal counsel to provide documents responsive to the auditor’s request for information.  Note employers are not required to specially create new documents for an audit.   Prior to the visit by the DOL, ensure applicable employee rights posters are displayed, including Family and Medical Leave Act (“FMLA”) rights (if the FMLA applies to your business).

3.  Expect employees to be interviewed.  Determine whether the auditor will request employee interviews.  Auditors may interview employees regarding a host of issues, including, but not limited to, exempt/non-exempt status, overtime pay, payroll scheduling, child labor, travel time, on-call time, PTO, training time, volunteer time, wage deductions, and FMLA practices (where applicable). During interviews, employees are often asked to describe their regular daily duties. Note an employee’s own description of his/her work duties is generally determinative regarding any Fair Labor Standards Act (“FLSA”) exemptions.

4.  Beware Protected Health Information. Ensure any protected health information (“PHI”), including medical records, remains separate from employees’ general personnel files.  Note employers must retain certain FMLA documentation including, but not limited to, any records of disputes between the employer and employee about FMLA-related issues.

5.  Protection of Commercial and/or Proprietary Information. Trade secret information may need to be protected or redacted (and marked as redacted).  In other situations, it may be possible to mark documents as “Business Confidential” or “Proprietary/Privileged.”

6. Expect DOL Follow-up.  Often, an auditor will conduct follow-up interviews or request additional information from the employer.  The DOL may also conduct a debriefing discussion with the employer regarding any legal issues that may exist and whether any penalties or back wages may be due. 

The Devil is in the Details: Arbitration Agreements Ruled Invalid Over Signatures

The Devil is in the Details: Arbitration Agreements Ruled Invalid Over Signatures

By: Michael J. Lorden

Employers, dust-off your arbitration agreements and take a second look at the signature line. Is it signed by both parties? Did the employer representative sign on behalf of the correct corporate entity? If the answer to either of these questions is “no,” then the arbitration agreement may be unenforceable.

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Coming Soon: NLRB Promises Rulemaking on Joint-Employer Standard by End of Summer

Coming Soon: NLRB Promises Rulemaking on Joint-Employer Standard by End of Summer

By: Sara Robertson

By letter dated June 5, 2018, National Labor Relations Board Chairman John Ring announced that the Board will issue a proposed regulation to determine when employers may be considered joint employers under the National Labor Relations Act “as soon as possible, but certainly by this summer.”

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Summertime: Four Tips for Keeping Workplaces Cool as the Temperatures Rise

Summertime: Four Tips for Keeping Workplaces Cool as the Temperatures Rise

By: Jay M. Dade

Summertime, and the livin’ is easy . . .

Ella Fitzgerald’s voice brings images of crackling heat, warm breezes and long, languid days. But, when the temperatures rise outside, human resource managers can find their workforce temperatures rising as well. As summer progresses, the season presents unique workforce management issues. Here are four tips for keeping your workforce temperatures cool, calm and productive during the long, hot summer.

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#MeThree: Recommendations for Employers to Avoid Liability for Third Party Harassment

#MeThree: Recommendations for Employers to Avoid Liability for Third Party Harassment

By: Karen R. Glickstein

The #MeToo movement has sparked an increase in sexual harassment investigations and focused attention on the potential liability of employers for the actions of third parties with whom their employees interact for business purposes.  We previously noted the importance of employers maintaining policies and providing training on proper responses to complaints about third party harassment in the hostile environment context.[1]  Two recent decisions underscore the importance of awareness of potential liability from third party harassment claims outside the area of sexual harassment and in potential quid pro quo situations.

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