Monday, April 2, 2012

U.S. worker protections in today’s workplace

In talking to companies, executives, attorneys, unions and workers I have heard the strangest stories, both hilarious and tragic, but true!  These endless perplexing stories are so universal with legal results so predictable I have concluded current training and education is rendering most companies willfully, civilly and/or criminally ignorant and negligent!  The DOL understands this.   A booming private employment law legal niche knows this as well.

If HR management does indeed know better, but is not protecting both the employee and the employer from willful violation of the law, it probably follows they are either ignorant of the law, fearful of their own job security or both.  If not, they have become part of the problem not the solution.  Just look at the long litany of Walmart settlements, and potentially the nation’s largest class action suit moving forward this year with estimated liability into $Billions.

Three very recent true stories will give impact to my points:
1)      A company attorney for a Fortune 100 company received a phone call from a degreed and certified HR Manager of 5+ years regarding the classification of a group of workers as non-exempt.  The HR Manager didn’t want to classify this group of salaried people as exempt because they (and their boss) didn’t want to pay them overtime.   They asked for help in reinforcing this position (making the case) and keeping them non-exempt to avoid overtime payments! (If you need this explained, drop me an email.)
2)      Another Fortune 500 employee, after years of working the same job with the same title and performing the same functions, was told, after a careful review of those functions, they were going to be reclassified as salaried non-exempt and would be paid overtime beginning on a future date.  Further questions and answers indicated they would not be paid retroactively.  Although they were not intimidated or threatened in any way, the employee decided they would not run the risk of being fired for questioning management regarding past overtime pay.  (If you need this explained, drop me an email.)
3)      When a very large privately held company asked for help in determining a “best” course of action to address problems in their handling of employee problems and complaints, they were asked why they thought they had a problem. They explained they had received notice of a DOL class action suit regarding violation of the FLSA in an overtime pay complaint, AND, they had been notified the results of an EEOC investigation and the EEOC was filing suit for sexual harassment and violation of the equal pay for equal work statutes.  When asked what policy or procedure the company had in place offering safe harbor to address employee issues and problems the company answered:  “Safe harbors are handled by the Benefits Department and those overseeing our 401K plans.” ??? (If the reference eludes you, drop me an email.)
These stories are from large companies who can afford the best information, training and legal advice available.  What is occurring within smaller companies is far more disturbing from a worker and employer liability standpoint.  These issues are being investigated, tried and settled every week!  2012 may be a $Billion+ settlement year representing the continued 30 – 50% annual increase in DOL and EEOC claims and settlements over the last 10 years. 
Many ask, "Why is this happening now?"  The answer is simple.  It isn’t new! It has been going on for decades! However, civil suit vs. federal enforcement is the relatively new wrinkle during the last 20+ years. 

Civil law suits became a private legal gold mine when preceding U.S. administrations deemed enforcement unnecessary, a low priority, refused to adequately fund enforcement and/or appointed department heads sympathetic to non-enforcement policies. Without federal enforcement individual workers had to and began filing civil suits.  Most civil suits are settled out of court, secretly, non- publicly and with non-disclosure agreements.  Civil judgments against employers usually take place just as quietly and may even get sealed.  They are just now becoming more visible because government judicial and departmental proceedings are a matter of public record!  Defense costs, judgments and publicity from federal legal enforcement of employment laws and for back wages, fines, possible criminal actions and the corresponding loss of reputation and image through bad press is a business’s worst nightmare.

The appearance of “newness” for these actions has also been explained as the result of unprecedented unemployment giving former disgruntled and laid off worker’s the freedom from fear and time to file complaints.   The employer-employee atmosphere created by the preceding decades of federal non-enforcement, worker abuse, neglect, unfunded pensions, non-communication and disposability is listed as a related reason we are seeing the visible rise in employment cases.  Another is our newer workers communicating endlessly, texting and tweeting anger, frustration, problems, complaints, solutions, legal opinions and perceptions to virtually anyone.  Consequently, legal employment questions and information is simply more available than ever before, instantly.

Recent state administrative and legislative actions in Wisconsin, Michigan, Indiana and Ohio, have also pushed this 30+ year employee rights trend into the spotlight.  Supported by all generations working together and organized through today’s lightning fast communications, rallies, union meetings and recall petition efforts have culminated in examples of what successful and visible employment rights protests can achieve. As of this writing 13 other states have followed a similar pattern.  It also serves as a glaring example of what fair, ethical and legal treatment of working populations can hope to avoid! 
Next Installment:  Why we got here

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