Chapter Ten Employment Law Employment Status Many Moving Parts Temporary Worker Independent Contractor Contract Employee At Will Employee Hourly Employee Exempt Employee Selection of an Employee Hiring The Hiring Process Employment Agencies Temporary and Contingent workforce Rent to hire contracts Benefits and payroll through temporary agency Independent Contractors Common Law Control Test Microsoft Case Misclassification of Workers Microsoft fully integrated the Workers into its workforce they often worked on teams along with regular employees sharing the same supervisors performing identical functions New Standard Stated By USDOL Wage and Hour Division The Application of the Fair Labor Standards Act s Suffer or Permit Standard Recent Statement by DOL While under the FLSA the agency sets out a multi factored test to determine whether a worker qualifies as an employee it almost singularly focuses on a worker s economic dependence on the business in question Simply stated according to the DOL if a worker is economically dependent on a business that worker is an employee of that business Legal Problems Resume Fraud Background Checks Inappropriate Questions Non Complete Clauses Arbitration Clauses Loser pays attorney fees EEOC can still sue directly Job References Defamation A false statement Published to Third Party Employer responsible for publications Plaintiff s reputation harmed Defense to Defamation Truth is a complete defense to defamation claim Qualified Privilege Recipient has legitimate business interest in the information communicated Employer has absence of malice or extreme recklessness Liability for Independent Contractors Actions Fifth Club Inc v Ramirez Vicarious Liability for Independent contractor Liability of Employee Actions Doctrine of Respondent Superior Holding and employer or principal liable for the employee s or agent s wrongful act committed within the scope of employment or agency Vicarious Liability Imputed Liability Liability that a supervisory party bears for the actionable conduct of a subordinate or associate based on the relationship between the two parties Mary M v City of Los Angeles 1991 Was the rape within the scope of employment Calif Supreme Court Did it happen within a series of acts that were A jury could find vicarious liability given the unique authority of police officers authorized in society City was held liable for the sexual assault Hiring Retention and Supervision Negligent Hiring Negligent Retention Yunker v Honeywell Inc Negligent Hiring and Pontias Case passkey to apartment However Negligent retention Employer becomes aware or should have become aware that Employer fails to take action such as investigate discharge or indicated unfitness reassign Minimum Wage Fair Labor Standard Act 1938 Purpose employees Establish a minimum wage that provides at least a modest standard of living for Flexible ceiling of hours worked weekly the purpose of which is to increase the number of employed Americans Child Labor Protection Equal Pay for Equal work regardless of gender Classification of Employees What is an exempt employee June 30 2015 Department of Labor releases Notice of Proposed Rulemaking NPRM which contains a new minimum salary threshold for workers to qualify for white collar exemptions to the Fair Labor Standards Act FLSA overtime requirements Would more than double the current salary basis of Background Since 1940 DOL regulations have generally required each of three tests to be met for one of the FLSA s white collar exemptions to apply Arguably the current minimum weekly salary amount is not inflation adjusted and therefore has eroded in terms of real dollar value over time Notwithstanding a modest increase in 2004 under the Bush administration June 30 NPRM from DOL follows a March 14 2014 memorandum from since the 1970s Obama Administration s Memo President Obama Key Provisions of the Proposed Rule time salaried workers Potential Impact for Employees Set the standard salary level at the 40th percentile of weekly earning of full DOL estimates that in the first 10 years of changes Between 5 1 and 5 6 million additional workers would be overtime eligible Workplace Hazards Four Laws Intersect here OSHA Occupational Health and Safety Act OSHA Passed to ensure workplace safety precautions OSHA coverage and duties Familiarize themselves with OSHA s requirements OSHA Responsibilities Promulgate workplace safety regulations Can award variances for certain employers Inspections OSHA Penalties Type of offense Willful Serious Non serious De minimis Failure to correct Description Employer aware of danger or a repeat violator Violation is a threat to life or cause serious injury Workers Compensation anniversary Workers compensation in PA is now approaching its 100th Under this law the injured employee is entitled to wage loss and medical benefits on a no fault basis American with Disabilities Act Immigration undocumented aliens Right to Privacy Health Insurance Portability and Accountability Act of 1996 and HITECH Act Drug Testing in the Workplace Drug Free Workplace Act of 1988 Testing Pre employment screening Routine physical examinations Reasonable suspicion of drug use through job performance Post accident testing Random Testing public safety etc Return from drug and alcohol rehab PA does not have a state law that regulates or prohibits drug testing in the Pennsylvania private sector E Mail Privacy Smith v Pillsbury Co Company based email system Assured workers emails could not be intercepted and used for termination Was there reasonable expectation of privacy between and employee and his supervisor over the company email system Employee Benefits and Income Maintenance Health Insurance Life Insurance Pensions Benefits add 22 to employee salary per year Unemployment Compensation Workforce Investment Act CareerLinks in Pennsylvania One Stop System WARN Act Worker Adjustment and Retraining Notification Act Notification System to prepare communities for large scale layoffs provide notice 60 days in advance of covered plant closings and covered mass layoffs Company has 100 or more employees employment loss of 50 or more employees during any 30 day period Rapid Response Program Employee Retirement Income Security Act ERISA Protects Pension Plan Rights Defined Benefits annuity Defined Contribution 401 K plan Pension Benefit Guarantee Corporation insurance pension plans Pension Plans Draper v Unemployment Comp Bd of Review Necessitous and