Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

No one likes to be audited by the IRS. I have blogged in the past about properly classifying workers. A friend and colleague of mine, Mary Budge, attorney and author of Budge Law Blog, wrote this week about a new program through the IRS. The program is applicable to employers who are currently treating their workers as independent contractors or other non-employees, and want to prospectively treat the workers as employees.

Ms. Budge writes, “If you feel you have erroneously been treating workers as non-employees or as independent contractors, and fear that there may be severe consequences for doing so, the IRS launched a new program that will enable many employers to resolve past worker classification issues by voluntarily reclassifying their workers. So rather than waiting for an IRS audit, this voluntary classification settlement program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations.”

Taxpayers must meet certain qualifications to be able to participate in the IRS’ Voluntary Classification Settlement Program.

It is important for employers to be proactive when it comes to business issues. For example, having workers properly classified as employees or independent contractors, or having employees appropriately categorized as exempt or non-exempt under the FLSA. If employers take a proactive approach to resolving potential workplace issues, the penalties may be reduced. Don’t wait for the IRS or the Department of Labor to knock on your door, and tell you the things you are doing wrong. Talk to your attorney or accountant and make sure you are doing things right.
 

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I have blogged numerous times over the past year about the importance of training employees and it bears repeating. Businesses who don’t train their employees can suffer from all kinds of potential problems, from fines for OSHA violations, fines for FLSA violations, or civil liability because of discrimination or negligence claims, just to name a few.

Earlier this week the Occupational Safety and Health Administration cited the City Brewing Company in La Crosse, Wisconsin for 16 serious safety violations. Over $100,000 in fines has been issued and the company has only 15 days to pay the fines or appeal OSHA’s decision. Another violation involved not training employees in an emergency-response plan.

With training, it is possible for employers to avoid or defend against many workplace issues.
Training:

• Puts employees on notice as to what is or is not appropriate in the workplace.
• Informs employees what laws are applicable to the workplace.
• Informs employees what penalties will occur if policies/procedures are violated.
• Should be on-going in nature. Refresher courses are important and helpful.

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Well, some of the fall T.V. shows had their season premieres this week. If you watched the series premiere of Free Agents on NBC last night starring Hank Azaria, I hope you would agree talking at a staff meeting about a co-worker’s evening escapade is not appropriate for the workplace. In fact, even more shocking was when the head of the company walks into the meeting and is told what the discussion is about, and encourages Hank Azaria’s character to just share “the good parts.” Hank’s character tries to shut down the conversation by stating, he met a woman last night and they had “wild animal sex” all night long. But, the discussion doesn’t end there. No, instead several colleagues begin to prod Hank’s character for more details, what was her body type, did her undergarments match, when the head of the company interjects, “Just the size and shape of breasts, straight to positions.” Of course, for T.V. the idea is to entertain, so you don’t want to just have the characters sitting around talking about work. But, if this type of discussion was occurring in your workplace, the doors are wide-open for a sexual harassment lawsuit.

It is important to remember in cases of sexual harassment, it is the welcomeness of the conduct by the recipient that is relevant to whether the conduct is harassment, regardless of whether the intent of the person engaging in the conduct is harmless or even friendly. Because it is almost impossible to judge whether conduct is welcome or unwelcome, most businesses have adopted a zero-tolerance policy with respect to sexual harassment in the workplace.

How do you protect your business?

1) Have a sexual harassment policy in your employee handbook or policy and procedure manual.
2) Train employees on the sexual harassment policy.
3) If you receive a complaint about sexual harassment, do a fair and thorough investigation.
4) If you see employees acting in inappropriate ways, put a stop to it immediately!

T.V. can be both entertaining and educational. The episode of Free Agents last night is a perfect example of what you do not want occurring in your workplace.
 

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The National Labor Relations Board recently announced another required posting that employers must place in the workplace. This time the required posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The newly required posting will also include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

The NLRB stated, “Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites.”

Luckily, the required posting will be available to download for free off the NLRB website beginning November 1, 2011. It must be posted at your workplace no later than November 14, 2011. The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights, and employer rules and policies are posted. Failure to post the required notice may be considered an unfair labor practice by the Board.

I imagine most workplaces are running out of space on workplace bulletin boards. To double check and make sure you have all of the required posters at your workplace, follow the prompts at the United States Department of Labor website. Make sure to check with your state for required postings as well. Don’t forget to make room for this latest required workplace posting by November 14, 2011.

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I blogged several weeks ago about a spate of NLRB cases concerning employee use of Facebook. The cases were very fact specific and left employers swimming in murky water. We now have a ruling from an Federal Administrative Law Judge finding a Buffalo, New York nonprofit unlawfully discharged five employees after they made Facebook posts, critical of the employer. The waters are beginning to clear.

The case involved Hispanics United of Buffalo, a nonprofit organization providing social services to low-income clients. A co-worker criticized other employees for not doing enough to assist clients, and posted the criticism to her Facebook page. Other employees responded, defending their work performance and criticizing working conditions, work load, and staffing levels. Hispanics United then discharged the five employees who responded to the Facebook criticism, claiming they had harassed the employee who originated the post on Facebook. The NLRB filed a Section 7 charge claiming the Facebook discussion was protected concerted activity.

The Administrative Law Judge agreed with the NLRB, finding the Facebook conversation involved employee conversations about terms and conditions of employment, including work performance and staffing levels. The five employees were reinstated with back-pay, and Hispanics United was ordered to post a notice in the workplace concerning employee rights under the NLRA. Hispanics United has the ability to appeal to the NLRB Board in Washington, D.C.

Facebook has becom the modern day version of the water-cooler. While it may be employee-friendly, employers should proceed with Facebook cases with great caution. The trend developing suggests the NLRB and Administrative Law Judges are leaning in favor of finding employee use of Facebook to be protected concerted activity.
 

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