Presentation I made to a local Chamber of Commerce in 2013

1. 1
TOP 5
HR ISSUES FACING PA
EMPLOYERS TODAY!
April 25, 2013

2. 2
Top 5 HR issues
[Excluding Healthcare Regulations]
1. FLSA Compliance
2. Weapons in Workplace
3. National Labor Relations Board
Decisions
4. Right to Work Legislation in PA
5.5. Use Of Arrest And ConvictionUse Of Arrest And Conviction
Records In Making EmploymentRecords In Making Employment
DecisionsDecisions

3. 3
HR QUIZ
1. FLSA applies to enterprises with at least
$5,000,000 annual gross revenues or those
engaged in interstate commerce True / False
2. The Fair Labor Standards Act allows employees
to recover pay up to __ year(s) of back pay
¦ 1 ¦ 2 ¦ 3 ¦ 4 ¦
Only $500,000

4. 4
4. For first criminal conviction under FLSA, violators are subject to a fine of up to
$10,000.
–True / False
5. For subsequent convictions under the FLSA, violators are subject to a
fine of up to $10,000 or imprisonment for up to six (6) years, or both.
–True / False
6. Falsification of records by an employer during a DOL investigation subjects the
employer to criminal prosecution.
–True / False
8. 7. An employer is deemed to have showed reckless disregard for the
FLSA if it is proved that the employer should have inquired further into
whether its conduct was in compliance with the FLSA but failed to do so.
–True / False
HR QUIZ - II
Imprisonment is only for up to 6 months

5. 5
FLSA Compliance Enforcement
 EEOC Approves Strategic Plan Focusing on SystemicEEOC Approves Strategic Plan Focusing on Systemic
Discrimination andDiscrimination and ““Enforcing Equal Pay Laws”
 EEOC proposes to collect data on whether employees
understand their classification (employee vs. independent
contractor) and whether they understand what that classification
means for pay and benefits.
 Lilly Ledbetter Fair Pay Act passed ¦ January 2009
 Stay Tuned for The Fair Pay Act [introduced] if passed, would
require employers to provide equal pay for jobs comparable in
skill, effort, responsibility and working conditions, and require
employers to disclose pay scales and rates for all job categories
at a given company.

6. 6
RECENT ENFORCEMENT TRENDS
1. Misclassifications…
 Computer Professionals; Field Service Reps; Inside Sales /Customer
Service Reps; Secretaries; Accounting Positions….AND MORE
1. Off-The-Clock Activities
 App now available from DOL-WHD
 Working during Meal Break
 Pre-work/post work preparation activities
1. Independent Contractors
 PA Construction Worker Misclassification Act
 Day-Laborers paid as contractors
 Retired employees returning as consultant and only have one client [the
past employer]
 IRS Red Flag Filing: receiving both form1099-misc and W-2 for same
worker will likely cause such an audit.

7. 7
Weapons in Vehicles
In Pennsylvania:
Are employees allowed to have firearms or
weapons in or on vehicle on Employer’s
Property property?
NO YET!

8. 8
EMPLOYER SAFETY OBLIGATION
OSHA REQUIREMENT
Each employer must provide every employee a
workplace that is free from "recognized hazards
that are causing or are likely to cause death or
serious physical harm to his employees."
– Known as “general duty clause” because it requires
employers to do whatever they can to ward off
unanticipated hazards.
– Employers that fail to do so can be cited by the U.S.
Department of Labor

9. 9
Develop Policy…
Prohibiting Weapons-In-Workplace!!!
Communicate & Post Policy
Define Weapons
Deadly and offensive weapons may include, but are not limited to:
 Firearms, loaded or unloaded
 Pellet, flare, tranquilizer, stun, spear, or dart guns
 Knives with blades larger than a small folding knife
 Any cutting instrument where the blade is exposed in an automatic way
 Daggers or swords
 Striking instruments, including clubs, truncheons, and blackjacks
 Martial arts weapons
 Bow and arrow combinations
 Explosive devices
 Ammunition or components to manufacture ammunition
Post Signs

10. 10
National Labor Relations Board
Decisions
NLRB has been pursuing aggressive pro-
union agenda through rulemakings, case
decisions, and enforcement. Concerns for
employers include:• Disclosure of Employee Information
• Mini-Unions
• Concerted Activity
• Social Media
• Confidentiality of
Workplace Investigations
• Employment At-Will Language
• Non-Solicitation Rules

11. 11
At-Will Disclaimers in Employee
Handbooks and Offer Letters
American Red Cross Arizona, Case 28-CA-234334
(February 1, 2012). The following at-will language in a
handbook was found unlawful by an Administrative Law
Judge of the NLRB:
“I agree that the at-will employment relationship cannot
be amended, modified, or altered in any way.”
“I understand my employment is ‘at will’” and “I
acknowledge that no oral or written statements or
representations regarding my employment can alter my
at-will employment status, except for a written
statement signed by me” and executives.
Invalid: NLRB reasoned that it could be seen to prohibit rights of
employees to engage in concerted activity.

12. 12
Right to Work Legislation in PA
???
Where union is in place, the right to refrain from
union membership or to to refrain from paying
union dues
Twenty-two (22) states were right to work states
Before 2012.
Two more right to work states added since
–Indiana
–Michigan.
Proposed legislation in Ohio, WISC., & PA

13. 13
New Guidance On Use Of Arrest AndNew Guidance On Use Of Arrest And
Conviction Records In Making EmploymentConviction Records In Making Employment
DecisionsDecisions
Pennsylvania Criminal History Record
Information Law (CHRI)
 Felony and misdemeanor convictions may be
considered by Employer only to extent related to
applicants suitability for employment in position for
which he/she applied.
 If decision to not hire is based in whole or in part on
CHRI, must notify applicant in writing.
 Pennsylvania Human Relations Commission
Employee Selection Guidelines
 Prohibits consideration of misdemeanor convictions
 Business risk decision as to what to consider

14. 14
EEOC GuidanceEEOC Guidance
Issued April 25, 2012
Provide Applicant Opportunity to ExplainProvide Applicant Opportunity to Explain
 Accuracy of Criminal Record
 Facts & circumstances surrounding offense
 Number of offenses for which individual was
convicted
 Age at time of conviction or release from
prison
 Evidence that individual performed same
type of work, post-conviction, with same or
a different employer, without incidents of
criminal conduct

15. 15
 Length & consistency of employment
history before and after offense
 Rehabilitation
 Employment or character references and
other information regarding the individual’s
fitness for the particular position; and
 Whether individual is bonded.
 If individual does not respond to employer’s
inquiries, employer may make its decision
without the information.
EEOC GuidanceEEOC Guidance
Issued April 25, 2012
Provide Applicant Opportunity to ExplainProvide Applicant Opportunity to Explain