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The Modern Workplace

  • Posts by Dorraine A. Larison
    Partner

    Dorraine Larison concentrates her practice in the areas of bankruptcy law, debtor/creditor law, and employment law. She has extensive experience in the areas of commercial financing, creditors’ rights, and creditor ...

On January 7, 2021, the U.S. Department of Labor (DOL) published its final rule (Final Rule) setting new standards for determining when a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule takes effect sixty days from its publication in the Federal Register and is, therefore, scheduled to take effect on March 8, 2021. The DOL notes that the Final Rule reaffirms the economic reality test; however, the new test changes the analysis to be used when applying the test.

New Test
The Final Rule implements a five-factor economic reality ...
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Posted in Wage & Hour
A basic tenant of the Fair Labor Standards Act (FLSA) is that employers are required to pay their non-exempt employees for all hours worked. While this seems simple enough, sometimes employees do not record all of their work time. Under the FLSA, employers must pay for time worked if they know or have reason to believe that the work was performed. In other words, employers have a duty to make sure that work is not performed when they do not want it to be performed. Recently, in light of the pandemic, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) highlighting the ...
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We know that we are all feeling a bit overwhelmed by the fast-pace of information being circulated about employment related COVID-19 issues and laws. In an effort to help you organize and retain COVID-19 information in a concise way, you will find links below to each of the Employment Alerts, Blog Posts, and Webinars by Lathrop GPM on COVID-19 employment issues. We will continue to keep you up to date with Alerts and blog posts as the various federal and state agencies issues new laws, regulations, and answers to the questions posed by employers. Please check here on the Modern Workplace ...
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Posted in Wage & Hour

Employers should be aware that the start of the New Year ushered in changes to federal, state and local government wage and hour laws. Some of those changes include the following:

  • The minimum salary for executive, administrative and professional employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) has increased from $455 to $684 per week ($35,568 per year). 
  • The annual compensation now required to meet the exemption under the FLSA for highly compensated employees has been raised to $107,432.
  • Several states increased the state ...
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The Occupational Safety and Health Administration (OSHA) recenty rolled out programs and publications aimed at encouraging employers to focus on programs related to safety on the roadways.


In its Guidelines for Employers to ReduceMotor Vehicle Crashes publication (Guidelines), OSHA states that every 12 minutes someone dies in a motor vehicle crash, every 10 seconds an injury occurs, and every five seconds a crash occurs. The Guidelines point out that many of these incidents occur during the workday or commute to and from work.


Employers feel the impact of employee motor vehicle ...
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Posted in Wage & Hour

As part of its ongoing efforts to assist employers in understanding their responsibilities under federal employment law, the Wage and Hour Division of the U.S. Department of Labor recently added publically available presentations to its website.  The presentationscover topics under the Fair Labor Standards Act, such as wage and hour requirements, child labor requirements, and an employers responsibilities to provide rest breaks and proper facilities for nursing mothers.


During the past year the Department of Labor has added other content to its online materials including the ...
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Two recent developments have occurred in the seemingly constant struggle regarding the classification of independent contractors versus employees. The developments are examples of two very divergent paths that are being taken by various governmental entities and administrations. Some are tightening the requirements for independent contractor status. Others, however, are creating a more business-friendly loosened standard.


On Monday, April 29, 2019, the Wage and Hour Division of the United States Department of Labor (DOL) issued an opinion letter (Opinion Letter ...
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Posted in Wage & Hour
On March 7, 2019, the U.S. Department of Labor issued its new proposed rule on the white-collar exemptions under the federal Fair Labor Standards Act. The proposed rule (New Rule) sets new proposed parameters for the white-collar exemption salary requirements and would replace the final rule issued in 2016, which was blocked after a Texas court issued a permanent injunction. The New Rule would set the minimum white-collar salary at $679 per week ($35,308 annually) and is expected to become effective in January of 2020. For more information about the proposed New Rule, read our client ...
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Posted in Wage & Hour

If you have been following the attempts to change the exempt employee salary rule under the Fair Labor Standards Act (FLSA), you know that it has been a long, involved story that includes a series of court decisions and moves that have changed the trajectory of the story. In other words: a saga. We now have word that the saga is continuing.


The final ruleadopted by the U.S. Department of Labor (DOL) in 2016 would have increased the minimum salary level required for employees to qualify for the executive, administrative, and professional exemptions under the FLSA from $455 per week ($23,660 ...
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Posted in Leave, Wage & Hour

I have been watching the weather carefully, because my family will be doing some tree trimming this weekend. As you can imagine, I was a bit concerned when I heard about potential snowfall. The threat of snow reminded me that inclement weather often results in questions from employers about how to address the related wage and hour issues that arise when they shut down their business for weather or employees are unable to get to work. In preparation for the upcoming winter snowstorm season, I offer the following guidelines:
  • What to Do When You Shut Down Your Business Due to Inclement ...
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In the past week, I have been involved in two situations in which an employer received a cease and desist letter from a potential competitor. The employers had hired employees away from the potential competitors and were then notified by the potential competitors that the employees were subject to various restrictive covenant obligations. The potential competitors letters made various demands regarding the restrictive covenants and restrictions to be placed on the employees activities.

As many of you know, restrictive covenants prevent employees from engaging in various types ...
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Posted in Discrimination

As our readers know, the Americans with Disabilities Act (ADA) addresses both physical and mental health disabilities of employees. Under the ADA, employers with 15 or more employees may not discriminate against an employee or applicant on the basis of a qualifying disability. In addition, in certain circumstances, the ADA requires employers to provide a reasonable accommodation to enable the employee or applicant to do the essential functions of the job.


Recently, the Equal Opportunity Commission (EEOC) issued two new publications relating to mental health conditions under ...
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On March 6, 2018, the U.S. Department of Labor (DOL) announced a new pilot program, the Payroll Audit Independent Determination (PAID) program. The PAID program encourages employers to self-report inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the DOL, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owedfaster.


The estimated ...
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Posted in Discrimination
On the 20th of this month several well-known companies, including T-Mobile, Amazon, and Cox Media Group, were named parties in a class action lawsuit filed in California related to their online hiring practices. The plaintiffs in the lawsuit are seeking class-action status to represent Facebook users age 40 or older who may have been denied the chance to learn about job openings. The action alleges that advertisements were placed on Facebook that restricted who could see the advertisements by age. This new area of attack by the plaintiffs bar targets advertisements on all social ...
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Posted in Wage & Hour
 

The last quarter of the calendar year is often a time when companies are busy with planning and budgeting for the following year. Minnesota employers doing budget planning for 2018 need to keep in mind that the state minimum wage rates will be adjusted as of January 1, 2018.

 
Under Minnesota law, the commissioner of the Department of Labor and Industry is required to determine and announce the inflation-adjusted minimum-wage rate each year by August 31. This year, the change in the price deflator is an increase of 1.56 percent.
 

The new state law rates as of January 1, 2018 will be as follows:
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    On June 30, 2017, the U.S. Department of Labor (DOL) filed a brief with the federal Fifth Circuit Court of Appeals in support of its appeal of a lower court ruling that enjoined implementation of its 2016 overtime rule under the Fair Labor Standards Act (FLSA). Had the rule gone into effect when scheduled on December 1, 2016, it would have raised the minimum salary threshold for white collar exempt employees from $455 per week to $913 per week. Under the new Trump administration, the DOL informed the appellate court that it plans to revise the overtime rule that was issued during the Obama ...
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    Posted in Wage & Hour

    As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.

    After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOLs request, but ...

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    Posted in Wage & Hour

    Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.

    The FLSA requires that employers pay their workers ...

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    As we let you know last week, legal challenges to the new federal overtime pay rules scheduled to go into effect on December 1, 2016, are pending in federal district court in Texas. On November 22, 2016, the Judge hearing the Texas cases issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new rules. As such, employers who were busily preparing to comply with those rules have a reprieve at least for now- from having to comply.

    In his decision, Texas Judge Mazzant concluded that the plaintiffs established a prima facie ...

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    In our January 29, 2016 post, we informed you that the U.S. Equal Employment Opportunity Commission (EEOC) had published a proposed enforcement guidance on Retaliation and Related Issues for public comment. On August 25, 2016, the EEOC issued the final enforcement guidance, which is available here: 
    The new enforcement guidance replaces the retaliation section of the EEOCs 1998 Compliance Manual and addresses the issue of retaliation under various federal anti-discrimination statutes, including the ...
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    Posted in Wage & Hour
    As we reported last month, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions to the Fair Labor Standards Act (FLSA), which will go into effect on December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for the white collar exemptions. Many nonprofit employers are concerned about the impact the salary changes will have on their organizations.
    Neither the FLSA nor the regulations provide an exemption from the overtime requirements for nonprofit organizations. However, some nonprofit ...
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    The highly anticipated final white collar salary exemption rule (Final Rule) is one step closer to becoming reality. The proposed rule would raise the minimum weekly salary requirement for the FLSA white collar exemption from the current $455 per week amount ($23,660 annually) to $970 per week ($50,440 annually). You can read our earlier post about the proposed rule here.
    On Tuesday, March 15, the U.S. Department of Labor sent the Final Rule to the White House Office of Management and Budget (OMB) for review, ahead of the expected review and release schedule. The specific provisions of ...
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    The National Labor Relations Board (NLRB) has once again entered the confusing and inconsistent intersection between our technological ability to record almost anything and the rights of employers to restrict recordings in the workplace (the Gray Zone). (See our prior discussion about this topic in 2013). In a recent decision, the NLRB struck down a Whole Foods workplace policy banning employees from recording conversations or taking photographs in the workplace without approval.

    In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by ...

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    Posted in Wage & Hour
    In the midst of busy work days, it can be helpful to revisit important fundamentals. As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.
    An employees regular rate is, however, not necessarily the employees set hourly rate of pay. Instead, the regular rate of pay is the hourly rate that the employee has, in fact, received for each weeks work. Because overtime pay is normally ...
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    The EEOCs current strategic plan includes, as an enforcement priority, a focus on the employment rights of lesbian, gay, bisexual and transgender (LGBT) individuals. On the heels of prior EEOC rulings and lawsuits aimed at expanding LGBT workplace protections, the EEOC recently issued a lengthy opinion on July 16, 2015, in which it concluded that Title VII prohibits sexual orientation discrimination. While the decision involved a federal government employer, the ruling has practical implications for private employers that are required to comply with Title VII. The decision is ...
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    A recent court order in a case in Iowa reminded me of how easy it is for employers to waive the attorney-client privilege by disclosing (deliberately or inadvertently) the advice they receive from their attorneys. The order shows that a careless reference indicating that a decision was based on the advice of counsel opened the door and required the disclosure of conversations between the attorney and the client. Whitney v. Franklin General Hospital (U.S. District Court for the Northern District of Iowa, Ruling on Motion to Quash, April 23, 2015).
    One of the oldest recognized ...
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    On February 23, 2015, the Department of Labor (DOL) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.

    The changes to the rules are the result of last years U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (DOMA) which defined marriage for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined marriage for FMLA purposes as ...

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    Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labors regulatory agenda that you will want to track:


    We've been on the look-out for proposed revisions to the Fair Labor Standard Acts (FLSA) white collar exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to modernize and streamline the existing regulations and increase the minimum salary for the white collar exemptions. The Department of ...

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    I was sitting by a campfire last night and, although it was a beautiful night, I could not help but notice that there are signs of fall everywhere. The leaves are beginning to change, the evening air had a slight nip, and darkness arrived much earlier in the evening. These reminders of fall mean that, because of Minnesota's participation in Daylight Savings Time, we need to think about the semi-annual ritual of the changing of the clocks. Each spring we Spring Ahead by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each fall, when Daylight Savings Time ends, we Fall ...

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    On August 1, 2014, Minnesota's new minimum wage law takes effect. The new law changes the states minimum wage requirements in several ways, including new definitions of large and small employers, progressively increasing rates over time, and indexing to inflation.

    Minnesota sets its minimum wage based on the size of the employer as determined by gross sales. Under the new law, a large employer is one that has gross sales over $500,000 in annual business. Small employers are defined to have gross sales under $500,000 in annual business. Prior to the change, the gross sales ...

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    The Equal Employment Opportunity Commission (EEOC) has recently issued an informal guidance on the issue of religious dress and grooming. The guidance comes in wake of several suits accusing employers of religious discrimination for refusing to accommodate certain types of religious dress or grooming.

    The EEOCs Religious Garb and Grooming in the Workplace:  Rights and Responsibilities guidance uses a question and answer format and covers a wide range of topics. In particular, the guidance notes the following:
     
           All employees covered by Title VII of the Civil Rights Act of 1964 ...
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    Posted in Discrimination

    I have not followed NFL football for many years, but the recent NFL report about the Miami Dolphins definitely caught my attention. The report, prepared for the NFL by a New York law firm, concluded that Richie Incognito and other Miami Dolphin players inappropriately bullied and harassed offensive lineman Jonathan Martin through improper physical touching and by persistently taunting him with sexually explicit remarks about his mother and sister, and racist and homophobic slurs. Martin abruptly left the Miami Dolphins in 2013.

    Unfortunately, the behavior described in ...
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    Lawyers often say that bad facts lead to bad law. Cases with outrageous fact patterns can drive a judge or jury to stretch the law and make outcome-based decisions in order to provide relief to a sympathetic party. Lawyers hate these types of decisions, because they can negatively skew the developing law based on one bad situation without enough consideration being paid to the legal implications for other, future cases.

     I recently read one of those decisions. In my frustration over the avoidable bad facts of the case, I had to draft this post. The decision, Lazette v. Kulmatycki, was ...
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    A couple of recent articles in the New York Times and The Atlantic magazine caught my attention. Although the articles are from very different perspectives, both articles made me think about dishonest employees and how employers deal with them. 

    Lets start with the basic principle addressed in TheAtlantic article. The author points out that most of us lie. Apparently, Americans lie about 1.65 times per day. Nonetheless, lying is the most disliked among the 555 personality traits ranked in a recent survey.   
    In the modern workplace, employers need to keep employees honest hasnt ...
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    As of July 1, 2013, the Federal Motor Carrier Safety Administrations Hours-of-Service Regulations relating to drivers of a commercial motor vehicle (CMV) are changing. These changes require some significant advance planning for employers of those who drive a CMV.

    Who is affected by these new rules? 
    First, the changes apply only to drivers of a CMV. A CMV is a vehicle that fits anyof the following descriptions:
           Weighs 10,001 pounds or more
           Has a gross vehicle weight rating or gross combination weight rating of 10,001 or more
           Is designed or used to transport 16 or more passengers ...
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    The United States Supreme Court issued two long awaited and employer friendly decisions today. Both relate to issues raised under Title VII of the Civil Rights Act of 1964. 
    Vance v. Ball State University: Who is a Supervisor?

    Under Title VII, employers may be strictly liable for harassment by a supervisor. Employers may also be liable for harassment by a co-worker, but only if the company knew or should have known of the co-workers conduct and failed to take prompt and appropriate corrective action. A question that remained disputed until the Vance decision was who qualified as a ...

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    Posted in Discrimination
    Last week in The Modern Workplace Week in Review, we posted a link to an article discussing the results of a survey that found that most people believe you should never friend your boss (81% of those surveyed). 

    From an employment law standpoint, I think the more interesting question is:  should a boss friend an employee? I decided to conduct an informal survey of my peers here at The Modern Workplace.  I asked my colleagues if it was okay for a boss to friend an employee, and the resounding answer was NO. Why not? There are both legal and personal reasons why friending an employee, even if you do not ...
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    Here at The Modern Workplace, we have often cautioned employers to be very careful when hiring to avoid claims of discrimination. In particular, we have cautioned employers about using an employees class (such as gender, race, etc.) when making a hiring decision. Our advice may be different, at least in Minnesota, if the class of workers involved is veterans or their spouses.
    During the last legislative session, the Minnesota Legislature enacted a new law which allows private employers to offer favorable treatment to veterans and their spouses in the hiring process.  The new ...
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    Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (EEOC) has recently issued a guidance describing how the ...

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    Okay, I couldn't resist the headline. The Star-Tribune recently ran an article with the headline: "Pedestrians distracted by electronic devices stumble into danger, raising safety concerns." As a lifelong klutz, I just had to read the article. Sure enough, statistics show a rise in the number of injuries sustained by those walking while using a cellphone or other electronic device. People are running into telephone poles, falling off subway platforms, falling into ditches, falling off curbs, and being clipped by cars while focusing on their electronic devices.  Some of the ...
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    I just read an online article which claims that employers are turning to gaming techniques to recruit and screen potential applicants. In fact, I learned another new word: Gamification. Apparently, some companies are finding that gaming techniques help them find better hires when the traditional applicant screening methods are not effective at finding employees with the right mixture of skills. With the expected shortage of skilled workers that will result from the retirement of the baby boomers, finding employees with the right skills and attributes has become even more ...
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    All employers have had a request from a potential new employer for a recommendation about a prior employee. I use the term recommendation loosely, because often the potential new employer really wants to find out if there is anything wrong with the candidate they're considering. Providing information about prior employees, or even current employees, may create the risk of claims for defamation or create other types of liability. As a result, many employers try to limit their risk by declining to provide any recommendations for employees or former employees. Other employers modify ...
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    Many companies purchase smartphones or cell phones for employees use, or pay all or part of their employees phone service fees.  Employees see this as a great job perk, and employers like the increased productivity and accessibility that results.
    So, what happens when an employer needs to do an investigation -- perhaps because of a complaint of harassment, or worries about leaks of confidential information -- and  wants access to the data? Many employers assume that because they pay for the service, they can gain access to the text messages and emails that have been sent from their ...
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    If the large numbers of crashes by distracted drivers is not enough, companies that employ drivers of commercial motor vehicles (CMVs) have one more reason to prohibit the use of cellular telephones by drivers while driving:  The United States Department of Transportation recently announced the issuance of the final rule that prohibits commercial drivers from using hand-held mobile telephones while operating their vehicles. 


    The final rule, issued jointly by the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety ...

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    The latest American Community Survey data shows that just over 2% of the U.S. workforce, not including the self employed or unpaid volunteers, considers home their primary place of work. That's about 2.8 million employees. Some estimates conclude that 20 to 30 million employees work at home at least part time.  Many people believe that the number of telecommuters will increase over the next few years as technology improves and employers learn how to adapt to employees who are not present in the workplace.
    Issues such as oversight, trust, and the ability to interact are all important to an ...
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    This summer the Office of Management and Budget (OMB) issued a memorandum to the heads of executive departments and agencies in the federal government about implementing security guidelines relating to the Telework Enhancement Act of 2010. It is a good reminder that, while there are lots of benefits to allowing employees to telecommute, employers need to be cognizant of protecting their systems and data from the risks associated with telecommuting.  It is also a good starting place for thinking about what should be in your policies and procedures.
    In December of 2009, President Obama ...
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    Okay - technology has done some wonderful things for all of us, including giving us the ability to store lots and lots of information.  But, do you really want to do that?

    Many employers are looking at ways to be more efficient by using technology to gather and store information about employees and applicants.  Employers store everything from names to social security numbers to discipline data on electronic systems.


    You may say, well that's just being efficient.  I'm all for efficiency, but employers need to be aware that they have to balance their need for information with the employees ...
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    One of the most litigated issues in todays employment arena is the classification of employees under the overtime exemption provisions of the Fair Labor Standards Act (FLSA). Generally, under the FLSA, employees must be paid overtime for any time worked over forty (40) hours per week. However, the FLSA also classifies certain types of positions as exempt from the overtime requirements. In order to qualify for the exemption, the employee must meet the specific requirements of each exemption. Unfortunately, many employers wrongfully classify employees as exempt when, in fact, the ...
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    From Merriam Webster: Luddite -one of a group of early 19th century English workmen destroying laborsaving machinery as a protest; broadly : one who is opposed to especially technological change.

    Why do I start with a definition of the word Luddite? Quite simply, I'm probably at least in part a Luddite. I use technology every day; yet, I am reluctant to embrace much of the new technology. That may sound strange coming from a person who is writing on a blog about technology, but alas, it is true. Interestingly, every time I have been forced to use a new technology I have eventually embraced ...
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