New Jersey Employment Law Attorney, Beth Lincow Cole, Law Office Marlton, NJ 08053

Spelling It All Out: Do You Use Job Descriptions?

Dec 21, 2011
2:43am

While many employers see job descriptions as simply a part of the hiring process, they can also be helpful further down the road when it comes to measuring and managing performance.

For instance, a job description that sets clear expectations for the position can be used to evaluate performance. It also provides a solid way to measure the value of a job and set the pay accordingly. That’s why it’s so important for employers to understand what goes into crafting an effective job description.

While job descriptions will all vary depending on the nature of the position, below are a few key elements that should always be included:

A job summary: an overview of the position, with a brief description of the most important functions. Because this will be the first thing applicants read, it’s a great place to sell the job to the candidates you’re trying to attract (and to weed out those who won’t be able to meet your expectations).
A list of job functions: a more detailed description of duties. While listing what people have to do to perform a job might seem pretty straightforward, it can be a legal minefield for managers who aren’t aware of federal and state antidiscrimination laws, including the Americans With Disabilities Act (ADA).
A requirements section: a list of the education, certifications, licenses, and experience necessary to do the job.
A section for other important information about the position, such as location, working hours, travel requirements, reporting relationships, etc.

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance in drafting, reviewing, or revising its job descriptions, contact employment law attorney Beth Lincow Cole.

DOL Was an Unwelcome Guest: Hilton Ordered to Pay Employees $715,000 in Overtime Back Wages

Dec 20, 2011
2:41am

The Department of Labor’s Wage and Hour Division is continuing to crack down on wage and hour violations in the hospitality industry. Hilton Reservations Worldwide LLC is the latest company hit with a costly settlement. According to the DOL, Hilton has agreed to pay $715,507 in minimum and overtime back wages to 2,645 current and former customer service employees following an investigation by the Wage and Hour Division that found violations of the Fair Labor Standards Act.

As detailed by the DOL in a press statement, an investigation by officials from the Wage and Hour Division’s Dallas District Office found that the company failed to pay employees for work performed prior to clocking in at the start of their scheduled shifts, such as booting up a computer, opening programs required to assist customers and reading pertinent emails.

Consequently, the employees did not receive at least the minimum wage for this time, as required by the FLSA. Additionally, because the time was not included in employees’ total hours worked, which is used to calculate overtime wages, they did not receive the correct overtime rate of pay. Finally, the employer failed to maintain the required records.

The hotel chain must pay a total of $456,343 to 1,443 reservation and customer care workers at the Carrollton location; $213,314 to 1,012 employees in Tampa, Fla.; $30,370 to 130 workers in Hazelton, Pa.; and $15,480 to 60 workers in Streator, Ill.

According to the DOL, Hilton has agreed to fully comply with the FLSA in the future, and payment of the back wages is ongoing.

The Law Office of Beth Lincow Cole is ready to assist any company looking to avoid costly wage and hour mistakes. If your company needs assistance, contact employment law attorney Beth Lincow Cole.

Severance Agreements: Can You Ask Employees to Waive Age Claims?

Dec 19, 2011
2:38am

As the economy continues to struggle, many employers are still laying off workers. These workers often include older employees who are eligible for retirement or approaching eligibility.

To minimize the risk of potential litigation, many employers offer departing employees a severance package in exchange for a release (or “waiver”) of liability for all claims connected with the employment relationship, including those under the Age Discrimination in Employment Act.

When drafting severance agreements, employers must be cognizant that, in addition to meeting the requirements for a valid contract, waivers of age discrimination claims must comply with provisions of the Older Workers Benefit Protection Act (OWBPA).

The OWBPA sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. They include the following:

A waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average individual(s) eligible to participate. Usually this requires the elimination of technical jargon and long, complex sentences. In addition, the waiver must not have the effect of misleading, misinforming, or failing to inform participants and must present any advantages or disadvantages without either exaggerating the benefits or minimizing the limitations.
A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that an OWBPA waiver must expressly spell out the Age Discrimination in Employment Act (ADEA) by name.
A waiver must advise the employee in writing to consult an attorney before accepting the agreement.
A waiver must provide the employee with at least 21 days to consider the offer. The regulations clarify that the 21-day consideration period runs from the date of the employer’s final offer. If material changes to the final offer are made, the 21-day period starts over.
A waiver must give an employee seven days to revoke his or her signature. The seven-day revocation period cannot be changed or waived by either party for any reason.
A waiver must not include rights and claims that may arise after the date on which the waiver is executed. This provision bars waiving rights regarding new acts of discrimination that occur after the date of signing, such as a claim that an employer retaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer.
A waiver must be supported by consideration in addition to that to which the employee already is entitled.

If a waiver of age claims fails to meet any of these seven requirements, it is invalid and unenforceable.

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance in drafting, reviewing, or revising its severance agreements, contact employment law attorney Beth Lincow Cole.

FMLA: Are Adult Children Covered?

Dec 16, 2011
2:36am

Despite many misconceptions that employers may have, eligible employees can take up to 12 weeks of unpaid leave under the Family and Medical leave Act to care for a seriously ill son or daughter of any age. For children over 18, the law specifically applies to those “incapable of self-care because of a mental or physical disability.”

For an example of what happens when an employer misinterprets the law, consider the following FMLA case:

The Facts of the Case

Deborah Patton was working as an accountant for e-Cardio Diagnostics when her daughter was seriously injured in a car accident, which killed the driver of the vehicle. Patton’s daughter, age 18, was hospitalized in intensive care with two broken legs, a punctured lung, and a punctured bladder.

While Patton was on leave to care for her daughter in the hospital, e-Cardio Diagnostics hired another employee to take her place. It then terminated Patton when she came back to work a week after the accident.

She subsequently filed an FMLA lawsuit, claiming she had been fired despite being eligible for leave under the act. Meanwhile, her employer argued that because her daughter was over age 18, Patton was not entitled to FMLA leave.

The Court’s Decision

The court disagreed. It found that the child’s condition at the time the employee took leave, not before the accident, was the primary issue. In this case, Patton’s daughter was clearly unable to care for herself while in intensive care.

The Message for Employers

As evidenced by this case, when an adult child is badly injured or becomes seriously ill, employers should treat the matter as seriously as any other FMLA request.

Source: Business Management Daily

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance in drafting, reviewing, or revising its leave policies or guidance regarding an employee leave request, contact employment law attorney Beth Lincow Cole.

Don’t Let This Happen to You: ADAA Lawsuits Piling Up

Dec 15, 2011
2:34am

As employers should be aware, in March 2011, the Equal Employment Opportunity Commission passed final bipartisan regulations implementing the ADA Amendments Act (ADAAA).

The new regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the ADA.

For employers, this means greater exposure to disability lawsuits. In fact, the EEOC has already filed more than sixty lawsuits under the ADAA, underscoring its commitment to vigorous enforcement of the law. Below is a brief summary of several cases that lead to costly liability.

Verizon Maryland, Inc., et al.: resolved 7/6/11 by Philadelphia District Office –Verizon Communications agreed to pay $20 million and to provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit. The suit said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or discharged them pursuant to its “no fault” attendance policy. This lawsuit spanned over both the ADA and the ADAAA as the policy was in effect before the ADAAA became effective and continued thereafter.
Affiliated Computer Systems (ACS) and Alpha Rae Personnel: resolved 5/24/11 by Indianapolis District Office – The Commission alleged that Defendants, one a Xerox company and the other an employment agency, failed to accommodate Charging Party and terminated her work assignment with ACS and thus her employment with Alpha Rae, because of her vision and hearing disabilities caused by Fuchs’ Dystrophy and by tinnitus. ACS agreed to pay Charging Party $55,000 and both defendants agreed to significant equitable relief including taking action to track and respond appropriately to requests for accommodation.
Jewish Community Center of Greater Washington: resolved 8/3/11 by Philadelphia District Office – The Commission alleged that Defendant, one of the largest metropolitan Jewish community centers in the country, failed to accommodate, demoted and discharged an assistant teacher because of her hearing impairment. The discharge occurred after the effective date of the ADAAA. Defendant agreed to pay $100,000 and provide injunctive relief to settle the case.
Maxim Healthcare Services: resolved 9-22-11 by the Chicago District Office – The Commission alleged that Defendant failed to provide reasonable accommodates and ultimately discharged Charging Party, director of clinical services, because she had brain cancer. Defendant agreed to pay $160,000 to Charging Party’s estate as well as significant injunctive relief.

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs guidance regarding disability accommodation, contact employment law attorney Beth Lincow Cole.

Are Disgruntled Employees Exposing You to Liability?

Dec 14, 2011
2:31am

I think we can all agree that a happy employee is better than a disgruntled one. The same applies to employees who leave the company, as they are more likely to create problems down the road, in the worst cases by filing an employment lawsuit.

Unfortunately, a new report suggests that the number of disgruntled employees is on the rise. More than three-quarters of departing employees say they wouldn’t recommend their employer to others, the worst percentage in at least five years, according to exit interviews aggregated by the Corporate Executive Board Co., a research and advisory services firm.

In 2008, just as the recession began, only 42% of employees said they wouldn’t recommend their employer. The 2011 data were based on exit surveys of more than 4,300 employees from 80 companies, most with more than $2 billion in annual revenue.

A severe drop in employee satisfaction could impact companies’ recruiting efforts, since prospective employees tend to trust former employees the most when choosing where to work, said Brian Kropp, a managing director with the CEB.

The scores likely reflect perceived poor treatment during the downturn, according to Mr. Kropp. “Companies were blunt and rough and tumble with their work force. They created a sense that ‘the company doesn’t care about me,’” he said.

While the CEB notes that employee satisfaction can harm hiring, it can also lead to increased liability in the form of employment lawsuits, including wrongful termination and retaliation claims. Therefore, it is important for employers to be proactive.

To avoid potential liability, employers should be sure to address problems before they spiral out of control. This includes documenting performance and other issues, promptly investigating complaints, and treating employees with respect. As we have said in the past, an ounce of prevention is often worth a pound of cure.

Source: Wall Street Journal

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance dealing with a disgruntled employee or a resulting employment lawsuit, contact employment law attorney Beth Lincow Cole.

New Bill Would Allow Leave for Domestic Violence

Dec 13, 2011
2:20am

In an announcement timed to coincide with National Domestic Violence Awareness Month, Rep. Lynn Woolsey (D-CA) reintroduced the Domestic Violence Leave Act (H.R. 3151). The bill expands protections under the Family and Medical Leave Act (FMLA) to address victims of domestic abuse, sexual assault, or stalking. It also provides leave to workers so that they can care for a family member—spouse, parent or child, including an adult child—who has been abused.

Under the Domestic Violence Leave Act, an employee can use leave in a variety of ways including seeking medical attention for injuries; seeking legal assistance or remedies, including participating in a legal proceeding; attending support groups; obtaining counseling; participating in safety planning; and any other activity necessitated by domestic violence, sexual assault or stalking.

The proposed legislation also provides that the employer must keep all evidence of domestic violence, sexual assault, or stalking in the strictest confidence, except with the consent of the employee to protect the safety of the employee or family member or to assist in documenting the domestic violence, sexual assault or stalking for a court or law enforcement agency.

Finally, the bill provides that in the absence of documentation from a third party of corroborating evidence, a worker can meet the certification requirements under the FMLA by providing a written statement describing the situation.

It is also important to note that the Domestic Violence Leave Act is not the only recent bill to address domestic violence-related leave. The provisions of the bill have already been incorporated into a more expansive leave bill – the Balancing Act of 2011 (H.R. 2346) – Rep. Woolsey introduced this summer. Additionally, the Healthy Families Act (H.R. 1876, S. 984) introduced in May 2011, would require employers to provide paid sick leave as well as paid leave for employees who are the victims of domestic violence, stalking, or sexual assault.

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company has questions about how these proposed laws may impact your leave policies, contact employment law attorney Beth Lincow Cole.

NFL Team May Be Penalized Off the Field for Wage Violation

Dec 12, 2011
2:15am

It appears that the Indianapolis Colts have not only lost their star quarterback to injury, but are now facing a federal class-action wage lawsuit.

According to the employment lawsuit, the team has paid its hostesses below minimum wage and off the books for a period of over thirteen years.

The lawsuit was filed by veteran hostess Colleen Fenstermaker, according to a report by the Courthouse News Service. Fenstermaker had worked part time as a hostess in the Colts’ press box but was fired on Sept. 9 of this year.

Fenstermaker says she was one of a dozen or more hostesses who worked on the Colts’ statistics crew. As part of their job, they would pass out written materials (printouts of statistics, etc.) to coaches, announcers, and other employees and/or guests in the press box area of the Colts’ stadium. In addition, Fenstermaker and other hostesses would get drinks and food for those in the press box and otherwise attend to their needs and help them before, during and after the Colts’ football game.

According to the complaint, hostesses worked eight or more hours on game days, arriving two or more hours before the game and working significant hours post-game. For this eight or more hours of work per game, the Colts were paying Fenstermaker and each hostess $40 in cash. When Fenstermaker began in 1998, the Colts were only paying $25 per game.

The lawsuit also contends that Fenstermaker’s time worked was not recorded by the Colts, nor was she asked to keep track of her time worked. The same was true for similarly situated hostesses. Fenstermaker seeks back pay, with interest, costs and “any and all other relief just and proper.”

If the allegations set forth in the wage lawsuit are true, the Indianapolis Colts could be facing serious liability. The wages of $40 for more than eight hours of work amount to significantly less than the minimum hourly wages required by the Fair Labor Standards Act, which protects a federal minimum wage of $7.25 an hour.

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance with a wage and hour issue, contact employment law attorney Beth Lincow Cole.

Can Employee Raises Lead to Employer Liability?

Dec 9, 2011
2:12am

When awarding raises and bonuses to your employees, it is important to stay mindful of the Equal Pay Act, the law against compensation discrimination. It includes all payments made to or on behalf employees as remuneration for employment.

Therefore, it not only covers salary and overtime pay, but also bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, reimbursement for travel expenses, and benefits.

As most employers are aware, men and women must be given equal pay for equal work in the same establishment. Of course, with most employment laws, applying it to the real world can be complicated.

While the jobs need not be identical, they must be substantially equal. Specifically, the EPA provides that employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment.

Below is a brief summary of the factors that employers must take into consideration:

Skill Measured by factors such as the experience, ability, education, and training required to perform the job. The issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master’s degree in physics, since that degree would not be required for the job.
Effort The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.
Responsibility The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers’ personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential.
Working Conditions This encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation; and (2) hazards.
Establishment The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment.

Source: EEOC

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance ensuring that employee compensation complies with the Equal Pay Act, contact employment law attorney Beth Lincow Cole.

New Report: Workplace Injuries On the Decline

Dec 8, 2011
2:08am

If you take steps to prevent your employees from workplace illnesses and injuries, pat yourself on the back.

According to a new report from the Department of Labor, nonfatal workplace injuries and illnesses among private industry employers declined in 2010 to a rate of 3.5 cases per 100 equivalent full-time workers, down from a total case rate of 3.6 in 2009.

While the decline is good news, many, including Secretary of Labor Hilda L. Solis, point out that nearly 3.1 million injuries and illnesses among private sector industry employers in 2010 is still too high. Solis specifically stated that OSHA would continue to focus on healthcare and social service employers, given the high rates of injuries in these industries.

She stated, “We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and manufacturing, and this group of workers had one of the highest rates of injuries and illness at 5.2 cases for every 100 workers. The Department of Labor’s Occupational Safety and Health Administration will continue to work with employers, workers and unions in this industry to reduce these risks.

Solis also indicated that the agency is concerned about accurate recordkeeping by employers and will be taking steps to ensure their data is accurate and complete.

She stated, “Employers must know what injuries and illnesses are occurring in their workplaces in order to identify and correct systemic issues that put their workers at risk. We are concerned with poor record-keeping practices and programs that discourage workers from reporting injuries and illnesses. That’s why OSHA is working hard to ensure the completeness and accuracy of these data, which are compiled by the nation’s employers.

The bottom line is that while the report shows some improvement in workplace injuries, employers should expect OSHA to continue to step up its enforcement activities, particularly with respect to recordkeeping and the industries noted above.

The Law Office of Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs assistance with OSHA compliance, contact employment law attorney Beth Lincow Cole.