Stettner Miller, P.C.

"Discrimination is always unfair, but everything unfair is not always discriminatory," Stettner Miller's Bill Berger explains this month in his regular column in the Denver Business.  The column discusses two recent cases, one by the Eleventh Circuit, Alvarez v. Royal Atlantic Developers, Inc., and the other by the Second Circuit, Kaytor v. Electric Boat Corp.  The cases explain why, under what the Eleventh Circuit calls "the Vince Lombardi rule," a supervisor who is rude to everyone is not guilty of discrimination, but at the same time, a different supervisor who is not just rude but actually discriminatory to everyone does.  

The Department of Labor has published a Final Rule mandating the inclusion in federal contracts of clauses requiring government contractors to post in their workplaces notices to employees of rights under the National Labor Relations Act (NLRA).  The NLRA, among other things, gives employees the right to join or not join a labor union and applies to most private sector employers.  The rule takes effect June 21, 2010.  In a recent article, Stettner Miller's Susan M. Schaecher explains this new rule.

The construction and restaurant industries in the Denver metropolitan area are the target of a “concentrated enforcement effort” in 2010, the U. S. Department of Labor has announced.  The Department plans to investigate a number of construction and restaurant establishments in this area for compliance with minimum wage, overtime and child labor laws. 

In short, employers in all industries must pay employees a minimum wage of $7.25 an hour and time and a half for all hours worked in excess of 40 in a week, with limited exceptions.  Certain administrative, executive, professional and outside sales employees are exempt from the requirements, but those exemptions are narrowly defined.  Many employers mistakenly assume that anyone who is paid on a salary basis is exempt, but the test focuses instead on the duties actually performed by the employee.  While exempt employees must be paid on a salary basis, not every employee who receives a salary performs exempt duties. 

Child labor laws prohibit the employment of individuals under the age of 18 in “hazardous” occupations.  The Department defines “hazardous” to include some occupations in the restaurant industry and many in the construction industry.  Sixteen- and 17-year-olds may be employed for unlimited hours in any occupation other than “hazardous” occupations.  Those who are 14 and 15 years of age may be employed outside of school hours in a variety of non-manufacturing and non-hazardous jobs for limited periods of time and under specified conditions.  Children under the age of 14 may not be employed in non-agricultural occupations.

Department of Labor investigations typically involve a fairly extensive review of an employer’s records and interviews of employees covering the prior two to three years.  Employers may have their legal counsel present at interviews of management employees and involved in responding to document requests, but the Department may contact and interview non-management employees directly.  Any violations discovered in the course of an investigation may be addressed by the Department, for example, with requests to change employment practices and/or an assessment for payment of back wages under the Department’s supervision.  The Department may also file lawsuits.  Willful violators can be criminally prosecuted and fined and may also face imprisonment for a second offense.

Employers should be especially vigilant for workplace fraud, now.  As the recession continues, employers should pay special attention to the unfortunately, very real possibility that they are the unwitting victims of fraud.  In his column in the Denver Business Journal, Stettner Miller's Bill C. Berger discusses a recent report by the Association of Certified Fraud Examiners and highlights some of the steps employers should take to prevent, detect and remedy workplace fraud.  From embezzlement, asset misappropriation, fraudulent payroll schemes and even skimming operations, the ACFE's report confirms that the possibility, if not probability, of at least some fraud in every workplace is all too real.  Bill's column also discusses the steps that employers can take to recoup such losses.

Stettner Miller's Susan M. Schaecher recently penned an article for AGC Colorado eNews, published February 1, 2010, explaining Colorado's medical marijuana law and its impact on other state and federal laws, including the Americans with Disabilities Act, the Family and Medical Leave Act and privacy laws.  Sue gave a similar presentation at the Colorado Contractors Association’s Risk Management Committee in December 2009.  For additional information, contact Sue here.