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Some States and Municipalities Begin the Ban on Salary History Inquiries

September 19, 2017

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Many employers base an employee’s pay on his or her past salary.  Applicants are typically asked, either on the application or during an interview, how much they made in their previous job(s).  Critics of this practice believe using salary history to set current salary is discriminatory and prohibits women and minorities, frequently paid less than their white male counterparts, from overcoming pay disparity.

In April 2017, in Rizo v. Yovino, the 9th Circuit Court of Appeals held that salary history is a valid justification for paying a female employee less than her male counterpart, so long as the employer’s use of the salary history was reasonable and accomplished a business purpose.  Several states and municipalities, perhaps in response to Rizo, have enacted and/or proposed legislation prohibiting the practice of asking applicants about their salary history.  Other states and municipalities previously banned this practice.

In June 2017, both Delaware and Oregon passed statutes prohibiting an employer from asking an applicant his or her past salary, either on the application or during the interview.  They join Massachusetts, New York City, San Francisco, and Puerto Rico, with similar bans.  California, Mississippi, Pennsylvania, and New Jersey have also proposed similar bans.  Philadelphia passed a

Starting Up – Set Up Part 3

September 11, 2017

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Starting Up – Set Up Part 3

September 11, 2017

Authored by: BCLP at Work

Part One of this series focused on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires. In Part Two, we dove into drafting job descriptions and their use in determining whether a position should be classified as exempt or non-exempt under federal and local wage and hour laws. In Part Three, the final post in this three-part series, we’re examining the specifics involved in extending an employment offer. Whether it’s your first time or your twenty-first time, making a job offer is exciting−you’ve finally found your ideal candidate and are looking forward to a bright future together!  But the start of the employment relationship also starts the clock on a number of employer obligations and opportunities.

For example, certain states require employers to provide their employees with written notice of certain job-specific information at the time of hire.  This information can include notice of the employee’s rate of compensation (both regular and overtime, where appropriate), notice of the employer’s proper legal name, notice of the appropriate pay days, and notice of any commission plans in which the employee may participate.  Most of these notice obligations

Starting Up – Set Up Part 2

September 4, 2017

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Starting Up – Set Up Part 2

September 4, 2017

Authored by: BCLP at Work

This three-part series highlights the steps startups should take before hiring their first employee. Part One of this series focused on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires. In this Part Two, we’re diving into drafting job descriptions and their use in determining whether a position should be classified as exempt or non-exempt under federal and local wage and hour laws.

A well-drafted job description provides employees and employers alike with a wealth of information, including the necessary qualifications, responsibilities, and pay rate of the relevant position.  The drafting alone is a great exercise for small companies to think about how they want to distribute their work.  Job descriptions can also serve the basis for – and later support – the classification of a position as exempt under wage and hour laws.

The federal Fair Labor Standards Act (“FLSA”) provides, among other things, that employees are entitled to a federal minimum wage and an overtime rate of compensation for any week in which s/he works more than 40 hours.  Most states have local wage and hour laws that mirror, if not provide more protection than,

Starting Up – Set Up Part 1

August 28, 2017

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Starting Up – Set Up Part 1

August 28, 2017

Authored by: BCLP at Work

So you’ve decided to take your company to the next level by expanding your staff.  Great!  But being an “Employer” under the law is more than just a title, so before you extend your first offer, make sure your startup is set up for success.  Part One of this three-part series will focus on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires.

First, the Internal Revenue Service (“IRS”) requires every employer to have an employment identification number (“EIN”).  An EIN, sometimes referred to as a Federal Tax Identification Number, is required to report business and employee tax information.  As such, any new employer’s first task should be to obtain an EIN. After applying for a federal EIN, new employers should confirm whether the state in which they conduct business also requires employers to obtain local EINs.  In addition to the appropriate EIN(s), new employers should have an appropriate tax recording system in place because the IRS has varying recordkeeping requirements for employers.

Second, based on where the company is headquartered, the new employer may need to register with the appropriate state unemployment insurance agency.  Unemployment insurance

Temps in Tenth Circuit Face Stricter Scrutiny When Seeking Time Off as Reasonable Accommodation

On July 6, 2017, a three-judge panel of the United States Court of Appeals for the Tenth Circuit reiterated that physical attendance in the workplace is an essential function of most jobs and emphasized this is particularly true for temporary workers filling short-term vacancies.

In Punt v. Kelly Services, the plaintiff, Kristin Punt, was a temporary worker assigned to work for GE Controls Solutions (“GE”) as a receptionist.  The essential functions of that job included being “physically present at the lobby/reception desk during business hours.”  However, during her six weeks in the position, Ms. Punt was absent or tardy on multiple occasions, often due to medical appointments related to a recent diagnosis of breast cancer.  GE terminated her assignment after she informed GE on a Monday morning that she planned to be absent the entire week and would need unspecified additional time off for “some appointments and tests” and “five times of radiation.”

Ms. Punt filed suit under the Americans with Disabilities Act, alleging failure to accommodate a disability.  In the Tenth Circuit, the plaintiff must make a prima facie showing that (1) she is disabled, (2) she is “otherwise qualified,” and (3) she requested a plausibly reasonable accommodation.  The

Tips for Drafting Executive Employment Agreements – Tip #4 – Beware of 409A

August 7, 2017

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This article continues with another tip for drafting executive employment agreements and the importance of consulting counsel.

For every well drafted executive employment agreement in the business world, there seem to be multiple, poorly drafted agreements.  Too often, employers simply copy and paste from older agreements without knowing anything about the identity or qualifications of the author of the original agreement, the jurisdiction, or circumstances in which the agreement was intended to be used.  Moreover, employers sometimes borrow terms from an agreement that was heavily negotiated by an executive with considerable leverage.  Under such circumstances, the agreement likely will contain terms that are less favorable to the employer than those that can be negotiated with another executive.  Most employers do not realize their mistakes until they are consulting an employment attorney regarding their rights and obligations with respect to an executive who has engaged in misconduct or is simply performing poorly.  The purpose of this series is to provide tips for drafting executive employment agreements and to highlight the importance of consulting counsel before tendering an agreement to an executive for consideration.

Tip No. 4:  Beware of 409A

When drafting executive employment agreements, it is imperative to consider the potential

New I-9 Form Issued by USCIS

New I-9 Form Issued by USCIS

July 31, 2017

Authored by: BCLP at Work

A new I-9 Form has been issued by the United States Citizenship and Immigration Services (USCIS).

Revisions include the following:

  • The Office of Special Counsel for Immigration-Related Unfair Employment Practices is now known as the Immigrant and Employee Rights (IER) Section of the Department of Justice’s Civil Rights Division.  This section is responsible for enforcing the anti-discrimination provisions governing Form I-9 and the E-Verify database.
  • The List of Acceptable Documents now includes the Consular Report of Birth Abroad (FS-240), which is issued by the Department of State to employees born overseas to a US citizen parent.  This document is now included in List C, #2, alongside the certifications of report of birth issued by the Department of State (FS-545 and DS-1350).
  • USCIS has amended language in the I-9 instructions which directs new hires to complete and sign Section 1 “no later than the first day of employment,” rather than “no later than the end of the first day of employment.”  This effectively eliminates a specific time by which Section 1 must be completed; consequently, employers should ensure that Section 1 is completed as soon as an employee begins work for pay.

The revisions are relatively minor, but

Tips for Drafting Executive Employment Agreements – Tip #3 – Restrictive Covenants

July 28, 2017

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This article continues with another tip for drafting executive employment agreements and the importance of consulting counsel.

For every well drafted executive employment agreement in the business world, there seem to be multiple, poorly drafted agreements.  Too often, employers simply copy and paste from older agreements without knowing anything about the identity or qualifications of the author of the original agreement, the jurisdiction, or circumstances in which the agreement was intended to be used.  Moreover, employers sometimes borrow terms from an agreement that was heavily negotiated by an executive with considerable leverage.  Under such circumstances, the agreement likely will contain terms that are less favorable to the employer than those that can be negotiated with another executive.  Most employers do not realize their mistakes until they are consulting an employment attorney regarding their rights and obligations with respect to an executive who has engaged in misconduct or is simply performing poorly.  The purpose of this series is to provide tips for drafting executive employment agreements and to highlight the importance of consulting counsel before tendering an agreement to an executive for consideration.

Tip No. 3:  Check Applicable Law Before Drafting Restrictive Covenants

Executives often are provided with access to high-level

Tips for Drafting Executive Employment Agreements -Tip #2 – Severance Conditions

July 20, 2017

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This article continues with another tip for drafting executive employment agreements and the importance of consulting counsel.

For every well drafted executive employment agreement in the business world, there seem to be multiple, poorly drafted agreements.  Too often, employers simply copy and paste from older agreements without knowing anything about the identity or qualifications of the author of the original agreement, the jurisdiction, or circumstances in which the agreement was intended to be used.  Moreover, employers sometimes borrow terms from an agreement that was heavily negotiated by an executive with considerable leverage.  Under such circumstances, the agreement likely will contain terms that are less favorable to the employer than those that can be negotiated with another executive.  Most employers do not realize their mistakes until they are consulting an employment attorney regarding their rights and obligations with respect to an executive who has engaged in misconduct or is simply performing poorly.  The purpose of this series is to provide tips for drafting executive employment agreements and to highlight the importance of consulting counsel before tendering an agreement to an executive for consideration.

Tip No. 2:  Condition Severance on the Execution of a General Release and Compliance With Other Contractual Provisions

Tips for Drafting Executive Employment Agreements -Tip #1 – Define “Cause” Broadly

July 10, 2017

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Tip No. 1:  Define “Cause” Broadly

Executives and other high-level employees often negotiate a contractual provision requiring the payment of severance if terminated without “Cause” prior to the expiration of a term agreement.  While the definition of Cause often depends on the parties’ respective bargaining power (highly sought talent typically has considerable leverage), the employer should attempt to negotiate as broad a definition of Cause as possible.  Too often, employers limit the definition of Cause to intentional misconduct that harms the company, criminal behavior, or the executive’s death.  Such a narrow definition ties the employer’s hands when an executive is not making a good-faith effort to perform well or is performing very poorly despite reasonable efforts.  Under these circumstances, the employer’s options are limited to continuing to employ the underperforming executive or terminating the executive and paying out severance.

It is also fairly common for Cause definitions to include a cure period in the event of a breach by the executive – e.g., “a material breach by the Employee of any of the terms of this Agreement and failure to correct such breach within twenty (20) days after notice from the Company”).  By providing the executive the right to breach

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