May 3, 2010 - The Blog is Moving to a New Home

As of today, this blog will be moving to a new home. All of the posts from this blog have been relocated, so you can still access archived content. The blog will continue to bring you news and commentary on the use of statistical analysis in employment law, but will also feature posts on EEO compliance, recruiting and hiring, social media, employment and HR best practices, and managing employment litigation risk.

The new site, The Proactive Employer Blog, is now your one-stop source for blog posts, podcast installments, webinar and live event information, and news from the Equal Employment Advisory and Litigation Support Division (EEA/LS) of Minimax Consulting. All new content will be added at the new address; no additional content will be added to this site.

You can subscribe at the new site via e-mail or RSS feed. You can also update your RSS reader with the new feed address. We hope you'll join us over at  The Proactive Employer Blog!

May Issue of EEA/LS Newsletter

The May issue of the Minimax Consulting Equal Employment Advisory and Litigation Support Division newsletter will be going out tomorrow. If you would like to receive a copy via e-mail and have not yet registered for the mailing list, please visit http://www.TheProactiveEmployer.com. There's a subscription registration form on the left hand side of the main page.

May Installments of The Proactive Employer Podcast

May 7 : Recruiting, Discrimination and the EEOC with Karen Mattonen - In this installment, we will be discussing what recruiters need to know about the Uniform Guidelines of the Employment Selection Process and their liability for discrimination in selection. Our guest fr this installment is Karen Mattonen. Ms. Mattonen is an experienced, successful recruiter who operates her own business and is actively involved in many industry organizations and activities.

May 14 : Social Media: What Employers Need to Know with Eric Meyer - In this installment, we'll be discussing social media policies with our guest Eric Meyer. Mr. Meyer is an attorney at Dilworth Paxson. He concentrates his practice to litigating and providing counsel to employers throughout the mid-Atlantic region on labor and employment issues. Mr. Meyer's experience also includes preparing social media policies, and he has been quoted in regard to such policies in Business Insurance and ABCnews.com

May 21 : Trends in Sex and LGBT Discrimination Law with Teresa Cheek - In this installment, we will be discussing trends in Sex and LGBT Discrimination Law with Teresa Cheek. Ms. Cheek is a partner in the Employment Law Division of Young Conaway Stargatt and Taylor. Among the topics to be discussed are gender discrimination, gender stereotyping, sexual harassment and same-sex harassment, and LGBT discrimination.

May 28 : Reductions in Force: A 10 Point Inspection - in this installment, I will be discussing the potential pitfalls for employers in conducting reductions in force. I will provide a "10 Point Inspection" that employers can use in evaluating and assessing the reduction in force prior to implementation.

Employee Versus Independent Contractor: EMPA

On April 22, 2010 new legislation aimed at remedying employee misclassification was introduced in both the House and Senate. The bills, H.R. 5107 and S. 3254, are called the "Employee Misclassification Prevention Act" (EMPA). The purpose of EMPA is to curb the practice of misclassifying employees as independent contractors. EMPA would modify the Fair Labor Standards Act, and if enacted in its current state, would have the following effects:

• require every company covered by the law to provide a written notice to all workers who perform labor or services informing them that they have been classified as either (a) employee or (b) non-employee;
• require companies to keep records of hours worked by and compensation paid to independent contractors;
• make it a "prohibited act" for an employer to misclassify an employee as a non-employee;
• impose a penalty from $1,100 to $5,000 per worker for a violation of the notice requirement, recordkeeping requirement, or a misclassification;
• impose triple damages in the event of willful violations of the minimum wage or overtime laws where an employee has been misclassified.

Regarding this legislation, Secretary of Labor Hilda Solis stated:

One of my goals as secretary of labor is to secure minimum and overtime wages and to help middle class families remain in the middle class. Working on the issue of misclassification is key to attaining these goals because the misclassification of employees as independent contractors deprives employees of critical workplace protections and employment benefits to which they are legally entitled... The Wage and Hour Division is currently considering how to best target its FY 2011 enforcement efforts and is emphasizing misclassification in its ongoing FY 2010 enforcement strategy. The department is also exploring all possible options for addressing this problem, including ways to better provide guidance to both workers and employers, and to increase information sharing between Department of Labor agencies and the states that are also working on this issue.

According to an article by Richard Reibstein, all businesses would be affected by EMPA "because it imposes upon every company that uses either employees or independent contractors a recordkeeping and a notice requirement. Any business that fails to provide the required notice would be subject to fines, even if its independent contractors are properly classified."

EMPA has implications for all organizations. Even if you don't use independent contractors, you would still be governed by the notice requirement, and would have to notify all of your employees that they are classified as 'employees'. The bills are in their early stages. As they develop, there will no doubt be much discussion. But one thing is clear - employee misclassification is an issue that is not going to disappear any time in the near future.

Upcoming Installments of The Proactive Employer Podcast: 4/23 - 5/17

Upcoming Installments of The Proactive Employer Podcast: 4/23 - 5/17

Friday, April 23: In this installment, we will be discussing FLSA and the fluctuating work week with Richard Tuschmann. Mr. Tuschmann is a labor and employment attorney in the Miami office of Epstein Becker and Green. He is the co-author of the blog "Florida Employment and Immigration Law Blog" and editor of Epstein Becker and Green's "Wage and Hour Defense" blog. He is a frequent lecturer on employment law issues and is a regular contributor to Thompson Publishing's "Employer's Guide to the Fair Labor Standards Act".

Friday, April 30: In this installment, I will be highlighting some of the top issues employers should be following to stay compliant and out of the courtroom. Top issues include recruiting and hiring, social media, Employee Free Choice Act, FMLA, ADA, heathcare reform, FLSA and independent contractor classification.

Friday, May 7: In this installment, we'll be discussing what recruiters need to know about the Uniform Guidelines of the Employment Selection process and their liability for discrimination in selection. Our guest for this installment is Karen Mattonen, an experienced recruiter who operates her own business - Advanced Career Solutions - and is actively involved in many industry organizations and activities. She is the co-host of the podcast "The Recruiters Lounge".

Friday, May 14: In this installment, we'll be discussing social media and what employers need to know with Eric Meyer. Mr. Meyer is an attorney at Dilworth Paxson. He concentrates his practice on litigating and providing counsel to employers throughout the mid-Atlantic region on labor and employment issues affecting the workplace. Mr. Meyer's experience also includes preparing social media policies, and he has been quoted on such policies in Business Insurance and ABCNews.com.