Retaliation - A Primer

Retaliation is the most frequently filed charge with the Equal Employment Opportunity Commission (EEOC) and its easier to prove than the underlying discrimination. Even if the underlying claim of discrimination has no merit, retaliation remains a separate charge and can still expose your organization to liability.

What is Retaliation and Why is it So Easy to Prove?
Retaliation can be defined as the act of repaying an injury or offense with an injury or offense.  In order to establish a claim for retaliation, a plaintiff must have engaged in “statutorily protected activity” (such as complaining about or opposing an employment practice that plaintiff believes is unlawful), there must be an “adverse employment action” by the employer; and some relationship between the complaint and the adverse employment action.  An employer is not permitted to retaliate against an employee who has filed a claim or complaint of discrimination.  The courts will presume that post-complaint adverse actions are related to or motivated by the complaint.  Click here for EEOC's Facts About Retaliation.  

So what’s an Adverse Employment Action?
An adverse employment action is a decision that negatively affects an employee.  According to the EEOC, an adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: termination, refusal to hire, and denial of promotion, changes in compensation, threats, unjustified negative evaluations, unjustified negative references, or increased scrutiny or supervision, changing of work assignments or working conditions.  Adverse actions can also include ignoring or berating an employee, taking away work or responsibility, or giving too much work.

How Can You Avoid a Retaliation Charge?
As an employer, you can’t control the filing of discrimination or retaliation charges, but you can set standards for your workplace that might make exposure to these charges less likely.  As always, the first place to start is with regular EEO/anti-discrimination training of your managers, supervisors and staff.   Next, make sure that you have robust anti-discrimination policies in your employees handbooks.

In general, an employer’s best practice after a discrimination claim has been filed is to treat the employee like any other employee.  Continue to engage in open communication with the employee.  Do not treat the employee differently from others in the workplace and do not publicize the complaint.  Be sure to have legitimate business rationale for all decisions that might affect the employee and think twice before executing hat decision.

If you're facing with a discrimination charge or potential retaliation charge and need legal assistance, contact me or visit my website.

Employee, Intern, or Volunteer - Why This Matters

The signs of spring are upon us - the birds are chirping, flowers are starting to bloom and students are looking for work.  The job market is tight so many students and recent grads are willing to work for free.  Sounds great, right?  Not so fast. . .

Background
Under the Fair Labor Standards Act (FLSA), individuals who are “suffered or permitted” to work must be paid.  Internships in the “for-profit” private sector will most often be viewed as employment, unless the following criteria are met.  Interns in “for-profit” private sector entities, who do not meet these criteria typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.  NB: different standards apply for government and the non-profit sectors.

An Intern is an Intern If. . .
The following six criteria must be applied when determining if an intern is an intern:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the intern is an intern, there is no employment relationship and the intern would not be entitled to compensation or overtime.

Employers should be aware that simply labeling an employment relationship as an internship does not necessarily create an exemption from legal obligations to pay compensation for services performed.

Why This Matters
The accurate classification of individuals that regularly perform services for your organization is an important undertaking.  Misclassification can expose your businesses to costly litigation, penalties and damages.  Please contact me if you need assistance in this area or a more detailed discussion.

Special Treatment For Charitable Organizations
According to DOL, unpaid internships in the public sector and for non-profit charitable organizations, “where the intern volunteers without expectation of compensation, are generally permissible.”

So What’s The Difference Between An Intern And A Volunteer?
According to DOL, volunteer status is available only to individuals performing charitable activities for not-for-profit organizations.  Private sector, for-profit entities cannot engage volunteers.  Under the FLSA, a volunteer doesn’t receive compensation other than expenses and/or a nominal fee to perform services, and such services are not the same type of service for which the individual is employed.

Questions??  Contact me for a consultation or visit my website.

New I-9 Forms Available - All Employers Must Use Them

The U.S. Citizenship and Immigration Services (USCIS) recently announced that Employment Eligibility Verification Form I-9 (I-9) has been revised. Employers have until May 7, 2013 to begin using the new form, but employers should begin using the new forms as soon as possible.  Click here for a copy of the new I-9.

What is the purpose of the I-9?

The I-9 is used for verifying the identity individuals hired for employment in the U.S. and for confirming that all individuals hired are authorized to work in the U.S.  All employers must complete the I-9 for each individual they hire in the U.S. This includes citizens and noncitizens. On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents confirming his/her identity and employment authorization.

Who Must Comply?

All employers (private, public, and nonprofit) must have a completed Form I-9 on file for each person on their payroll.  Employers must retained the I-9s for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.  The new Form I-9 contains a revision date in the lower right hand corner denoted “Rev. 03/08/13.”

Next Steps


Since the new forms are available now, employers should download and use the new form as soon as they are able.  Although the existing form may be used until May 7, after May 7 failure to use the new I-9 will result in fines and civil penalties that can range from $100 to $1000 per violation.  Download the new form here.

If you have any questions about the new I-9, contact me or visit my website.  

Employee or Independent Contractor - A Few Guidelines

The Wall Street Journal recently reported something that most business owners already know or should know, that "there is a crackdown on businesses that treat some workers as independent contractors and its causing a stir in industries from trucking to exotic dancing.”  It’s not that the government has anything against exotic dancers or truckers.  The issue for the government is that when employees are misclassified, employees do not get the benefits and overtime to which they are otherwise entitled and the employers avoid paying payroll taxes, i.e., lower revenues for the government.  Independent contractors (ICs) can be referred to as freelancers, consultants, contractors, project workers, temps, specialists, etc.  They are in every industry because, at least on paper, they often make good business sense for many companies.  So how do you know if your workers, whether truckers, dancers, technicians, etc., are employees or independent contractors?

Fortunately, state governments (click here for New York), the Department of Labor (DOL) and the Internal Revenue Service (IRS) provide guidelines.  This might seem like a lot of factors to keep up with but these questions/factors really focus on the same few areas that are concentrated quite nicely in the IRS Three Prong Test.  The IRS divides its analysis into three areas: financial control, behavior control, and the type of relationship.  The analysis focuses on an overall review of the business/worker relationship, who controls the worker, and how the work is performed.

• Financial Control - Are the business aspects of the worker’s job controlled by the company (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc., the extent to which the worker can realize a profit or loss)?
• Behavioral Control - Does the company control or have the right to direct and control what the worker does and how the worker does his/her job through instructions, training, or other means?
• Type of Relationship - Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue, i.e., open-ended or project based and is the work performed a key aspect of the business?

The IRS provides more detail on behavioral control in its 20 Factor Right to Control Analysis. 

The Fair Labor Standards Act/DOL applies an "economic realities test" where the analysis, similar to the IRS seeks to determine the totality of the worker/company relationship.  

• Control of Work - The degree to which the company controls the manner in which the work is performed;
• Opportunity for Profit or Loss - The worker's opportunity for profit or loss depending upon the worker's managerial skills;
• Investment by Worker - The worker's investment in equipment or materials required for this project or the worker's employment of helpers;
• Use of Judgment - Whether the services being rendered require a special skill and use of initiative/judgment;
• Permanence of the Relationship - Work for fixed period of time or discrete project
• Integration into Company's Business - Whether the service rendered is an integral part of the alleged employer’s business.

Risks of Misclassification

Risks include liability for unpaid federal, state and local income tax withholdings and Social Security and Medicare contributions, unpaid workers’ compensation and unemployment insurance premiums, and even unpaid work-related expenses and overtime compensation. Any these types of liabilities (in addition to interest and penalties for non-compliance) can be devastating for most businesses. 

The better course is to avoid misclassification.  

Thinking about hiring Independent Contractors?

• Prepare a written agreement for independent contractors addressing terms of the project/assignment.
• Set start and completion dates for the project.
• Make it clear that the worker is free to work for other companies.
• Compensate for the work performed, not the time required to do the job.
• Avoid providing office space, computers, tools and equipment.
• Have workers remain responsible for their own insurance and training.
• Don’t treat the workers as employees (i.e., don't provide business cards and employee perks).

If you think that you have misclassified workers or have any questions, contact me or visit my website.