Supreme Court of the US says no class action for Wal-Mart

The Supreme Court of the United States ruled today that female employees who charged that Wal-Mart discriminated against them because of their gender will not be able to file a class action suit.

As many as 1.6 million women could have been part of what may have been the country's largest sex discrimination case.  Billions of dollars were at stake.  The high court has ruled that the plaintiffs must pursue their appeals individually.

This reverses the 9th US Circuit Court of Appeals ruling made last year.

The SCOTUS ruling was unanimous that there can  be no class-action claim, however, it was divided that future suit by workers can be blocked.

Writing for the majority, Justice Scalia said that for a case to qualify as class action, there needs to be commonalities linking "literally millions of employment decisions at once."  In this Wal-Mart case, that connection, Scalia wrote "is entirely absent."

Wal-Mart's written policies bar gender bias.

The dissenting opinion was written by Justice Ginsburg who said that the cases of all of the company's female employees were linked.  "Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores," she said.

Union targeted Target: Workers say No

Friday's vote at the Valley Stream, NY Target resulted in a vote against union affiliation 137-85.  This has been closely watched by retailers.  Target employs thousands of people in their 1,755 stores; none have union-represented employees. As expected Unfair Labor Practices have been filed on both sides about the other according to the National Labor Relations Board.  United Food and Commercial Workers Union Local 1500 wanted to represent the workers at the store, just east of Manhattan.

Three times a charm?

ODESSA, FL, June 13, 2011 — Entrepreneur and HR expert Kelley Rexroad, SPHR,  has been nominated once again for Tampa Bay Business Woman of the Year, an annual award sponsored by the Tampa Bay Business Journal.  

“In 2007 I was a finalist for Business Services category and last year, a finalist for Entrepreneur category-who knows what will happen this year.  It may sound trite but I am honored to be nominated.  The nomination application itself is a good exercise for reflection as to what you have accomplished in your professional life but also in service to your community,” said Rexroad.  

Kelley Rexroad is founder of krexconsulting where her experience in communications and HR helps businesses succeed.    She has been featured as a speaker and a writer in numerous media including CBS, ABC, St Pete Times, The Tampa Tribune and NY Times. She's been called an expert by Fox News' Neal Cavuto.   Her original inspirational quotations have been selected out of thousands to highlight calendars. Her tailored HR strategies and coaching programs' effectiveness are why her clients continue to work with her year after year.

Isn't this special? An app from the Dept of Labor-for your employees.

The Department of Labor has issued a press relase about its new app for smartphones. Workers have always been able to keep their own hours--just now it will be tied into the Department of Labor!

Here's the notice right from the DOL and the handy link:  http://www.dol.gov/whd/Hightlights/archived.htm#May9_2011
"May 9, 2011

The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint."

The Anthony Trial: What is your jury duty policy?

The media is all over Central Florida covering the Casey Anthony trial. The jury for this Central Florida trial was pulled from Pinellas County, here in the Tampa Bay area.   The group, once selected had just a weekend to pull their lives together before being  sequestered in the Orlando area for the next "several weeks."  The Judge did ask potential jurors if such a timeframe could be a "potential financial hardship."  He excused many who said yes.  

How would you handle your employee being gone for potential months?  Would you be supportive?

Here are some things to consider for your Jury Duty Policy.

1.  State your support of employees fulfilling their civic duty.  This is just good common sense for any employer.  

2.  Write letters requesting postponement if you have business needs that are important such as a trip or deadline that requires that particular employee.  I wrote several of these over the years (for different employees) and all were well received.  My employers supported this community request so we did not write letters so employees could get out of jury duty.  

3.  Require documentation.  Employees should give their employer as soon as received a copy of the summons notice.  

4.  Decide if this will this be paid or unpaid time?  Does the employee receive only the jury pay or the jury pay and your pay or does your pay supplement what your employee receives from the Court.  

5.  Will your benefits continue?  For how long? Insurance? Vacation?  

My experience has been that up to five days of jury duty covers most of the circumstances.  I have had an employee who was called three times in one year (all less than 5 days) and one who was called to serve for 6 weeks.  

6.  Employees should be required to keep their supervisor informed of their status in jury duty.

7.  Time spent on jury duty is generally counted as regular working time and not counted for overtime purposes.  For instance if the employee spent Monday on Jury Duty and worked 40 hours Tuesday through Friday--then he/she would receive 40 hours of regular pay (for the State of Florida) and then pay for whatever your jury duty policy says.

8.  Check with your state laws. NY, I believe has a law that requires an employer with more than 10 employees to pay at least the same amount as the jury duty amount (such as $40) for the first three days.  If jury duty lasts longer than three days then NY state starts paying the $40/day.  California --well you know check the law for the time if you have employees in California.  

9.  Will all of your employees (seasonal?, temporary?, part time?) be eligible for jury duty leave?

10.  Do you want to set the expectation that employees are to work during normal work hours whenever the court is not in session or when their prescence in court is not required?  This puts the employee on notice that if they only spend a couple hours in the morning  of a regular work day that they should expect to return to work. You may have in your policy something like this:  "Upon completing jury duty, the employee shall report to work at the beginning of the next scheduled work period. If jury duty does not require the full work period, the employee shall report to work upon completing jury duty for that day, with travel time consideration."

Federal jurors are paid $40 for the day.  The pay goes to $50/day after serving 10 days on a trial.  Federal employees are paid their regular salary in lieu of the the daily payment.    Employers can not fire, intimidate or coerce employees due to their federal jury service.  

There is no State Law in Florida that requires employers to pay employee- jurors while they are serving on jury duty.  However, there may be some County ordinances. ( I think Broward has one.)

Florida law requires jurors in capital cases be sequestered during deliberations. But nothing mandates that a jury be sequestered during the entire trial. That is up to the judge.  And in Anthony's case, Orange-Osceola Chief Judge Belvin Perry has decided the jurors will be sequestered.  The flow of information in years past could be stopped by removing tvs, radios and newspapers.  Today's flow of information is greater in volume and variety of tools.  So don't think that a sequestered juror could be working on his/her laptop every night!  

In Florida, jurors are entitled to $15 per day payment from the State if the employer does not pay, juror is not employed, is self employed or retired.  If selected for a trial that is longer than 3 days, the juror will be paid $30 per day for the 4th day and for each day thereafter, regardless of the employer’s compensation policy. Do you need help putting a policy together?  Pull some answers together for these questions and I will be happy to put the policy together for you!  Hope this helps you.  Just remember to write the policy to be fair for all; be sure your expectations are known.  Precedents may have been set that you don't even know are in place. Help your supervisors!  Have a policy.  Policies provide guidance.

Time for new posters! FLA Minimum wage increases!

Florida's minimum wage will increase by six cents an hour to $7.31 on June 1 after a Leon County judge ruled that the State's agency was miscalculating the rate.

This is all based on the constitutional amendment passed by voters in  November of 2004 that set a minimum wage that would increase with inflation.

The lawsuit, filed on behalf of four individual workers and three groups representing employees claimed the agengy violated the state constitution by keeping the minimum wage at the federal rate  of $7.25.

The Agency for Workforce Innovation posted the information on their site.  http://www.floridajobs.org/minimumwage/index.htm.  (This is the same site to get the new poster without a charge.)

Tipped workers like servers and bartenders will  see an increase in their minium wage from $4.23 to $4.29 per hour.

The poster requirement is in addition to the federal requirement to post oa notice of the federal minimum wage.

Are your contractors really independent?

Is your business a little busier than last year? There are reports all around that business is growing. Yet, some businesses are skittish about hiring.

In these times, a business may decide to hire an independent contractor – aka a freelancer/1099er – rather than an employee. This can be effective but can also be a landmine of issues if not done properly.

It is important.

As part of a national research project on employment taxes, the IRS is auditing 6,000 randomly selected companies ranging from large to small firms and even non-profits. The goal of the program, which is scheduled to last from 2010 to 2012, is to create a scoring system for employment taxes.

The audits are focusing on failure to file; fringe benefit issues; executive compensation, including stock options; and employees misclassified as independent contractors. The IRS has noted that there is no defined time period of years that will be covered during the audit.

The federal government estimates it will raise billions of dollars through tighter enforcement.

There are clear guidelines for what determines independent contractor status. These are right from the IRS web site:

Common law rules

In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.

Facts that provide evidence of the degree of control and independence fall into three categories:

•Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?

•Financial: Are the business aspects of the worker's job controlled by the payer? These include things like how the worker is paid, whether expenses are reimbursed and who provides tools or supplies.

•Type of Relationship: Are there written contracts or employee type benefits, such as pension plan, insurance or vacation pay? Will the relationship continue and is the work performed a key aspect of the business?

So what happens?

If you have misclassified an employee as an independent contractor you need to be aware of the implications. You may find yourself responsible for employment taxes and penalties, as well for various benefits for which the misclassified employee may be eligible. These include vacation, sick pay, retirement plans, worker's compensation, health insurance and unemployment.

What can you do to protect yourself?

Employers can conduct their own audit to determine if independent contractors are properly classified. Also, there are experts who can help you to ensure that classifications are consistent with applicable law. A self audit should, at a minimum, include the following steps:

•Identify all independent contractors.

•Review written agreements to determine how the contractor relationship is structured.

•Review in detail the documentation related to how the contractor is paid.

•Consider the type of services performed by the contractor and whether employees perform similar services.

•Determine how the contractor performs the services, e.g., on company premises; with company provided necessary equipment; does the company direct when, where, and how the services are performed.

•Consider how long the contractor has performed services for the company and whether the contractor was engaged for a specific project or is performing services.

Employers should develop a formal procedure for the lawful hiring of independent contractors, establish guidelines for hiring contractors, and develop a written independent contractor agreement.

Many companies utilize 1099 contractors to supplement traditional W-2 employee workforces. If done correctly, this can be a useful method for controlling labor costs and engaging needed expertise.

Companies, however, either negligently or intentionally violate the law by misclassifying workers as contractors instead of employees. Be sure your independent contractors are truly independent.