Archive for July 2023

In light of widespread budget deficits, state and federal officials plan to start aggressively pursuing companies that try to pass off regular employees as independent contractors. One study reportedly concluded that employers illegally classified 3.4 million workers as contractors. The U.S. Department of Labor has estimated that up to 30 percent of companies misclassify employees.…

The Fifth Circuit recently reviewed the standards used to determine whether one who works for a company is an independent contractor or an employee. Thibault v. BellSouth Telecommunications, Inc., — F.3d —, 2010 WL 2891603 (5th Cir. July 26, 2010). The case involved an electrician, Louis Thibault, who did post-Katrina repair work on electric lines for BellSouth,…

Discrimination claims arise from all aspects of the employment relationship, not just termination. A recent case from the Fifth Circuit Court of Appeals, Moss v. BMC Software, Inc., clarified what standards must be used to avoid discriminating on the basis of age during the hiring and promotion process. Moss v. BMC Software, Inc., 610 F.3d 917 (5th Cir.…

Many employers struggle to manage overtime costs paid to employees. One approach employers have tried is to keep the hourly rate low while supplementing pay with other types of payments. This strategy was recently disapproved of by the Fifth Circuit Court of Appeals in Gagnon v. United Technisource, Inc., 607 F.3d 1036 (5th Cir. 2010). In Gagnon, United…

As many employers have learned the hard way, the Equal Employment Opportunity Commission (“EEOC”) has the ability to investigate claims made by an employee in a Charge of Discrimination, and issue a “cause finding” in a Letter of Determination. A “cause finding” is the EEOC’s written determination that unlawful discrimination has occurred in the workplace.…

Hospitals and other institutions “primarily engaged in the care of the sick, the aged, or the mentally ill” must comply with the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). However, Section 7(j) of the FLSA permits hospitals and residential care establishments to calculate overtime using a fixed pay period of…

The Fair Labor Standards Act (the “Act”) is a long-established federal law that applies to almost all U.S. workers and employers. In general, the Act requires that all workers must be paid time-and-a-half (overtime pay) for all hours worked over 40 in any given workweek. The only workers to whom an employer is not required…

In The Art of War, ancient military strategist Sun Tzu teaches that opportunities multiply as they are seized. Far too often, managers tasked with terminating an employee fail to view the termination meeting as an opportunity to protect the company, prevent future claims, and reduce the risk that what is said during the meeting will spill…

Some of the most serious legal issues we see arise from common mistakes that employers can easily correct. Below we list five of the biggest mistakes employers make on a regular basis, each of which increases the likelihood an unhappy former employee will decide to pursue legal action. 1. Failure to Maintain an Employee Handbook…

On September 19, 2011, the U.S. Department of Labor (DOL) signed a memorandum of understanding with the IRS aimed at ending the business practice of misclassifying employees as independent contractors to avoid providing employment protections and employment-related benefits. “We’re here today to sign a series of agreements that together send a coordinated message: We’re standing…