THE PROBLEM: How will the inauguration of Donald Trump impact employment laws and the regulations that govern today's workplace? Without question, there is a tremendous amount of uncertainty-- yet we do know a few things. There will be a lot more tweeting from the Oval Office. A lot of the rhetoric that became normalized during the campaign could spike employment litigation if that type of speech seeps into the workplace. Mexicans and Muslims in particular may connect the dots and assert claims of national origin discrimination. The National Labor Relations Board and the Supreme Court will likely tilt in a more conservative and employer friendly direction. The Affordable Care Act is already under attack. Because many of President Obama's workplace initiatives came via executive order or agency action, they may be promptly eliminated. Our crystal ball tells us that local governments, state and municipal, will become the incubators of employment laws and workplace regulations over the next several years.

Where your company is located and your workplace demographic will have a much bigger impact on your business operations than a conservative leaning EEOC and Federal Courts. Cities and states throughout the country will begin to take more control over the regulations that govern the workplace, including paid leave time and the overtime eligibility rules, just to name two.

In general terms, we know that the need to more effectively manage HR-related risk and employment law compliance remains constant. Compliance obligations are burdensome and the corresponding liability and exposure for employers is extraordinary. Those burdens may shift some at the federal level over the next four years, but many compliance obligations will remain and are beyond the resources of most employers. Moreover, local government will continue to regulate wherever the federal government leaves a gap.

THE SOLUTION: We get it – and that it why we developed two non-traditional and very popular service options: a suite of all of our current specialized services provided under a fixed fee per service; and a comprehensive retained services agreement option provided under a fixed monthly fee. The remainder of this newsletter will respond to the flurry of inquiries we have received and provide information that so many of you requested. We have developed the specialized fixed fee services summarized below to allow our clients to focus on the areas that concern them most, while minimizing the impact on their time and budget.

Our law firm will provide any one of the services summarized below for a fixed fee that is a fraction of what our competitors charge. We will provide much more information about our Retained Services Agreement option upon your request.

Fixed Fee Services Provided by Foley & Foley, PC

Handbook Preparation/Updating Service – Our Handbook preparation/updating service is extremely popular throughout the country. Handbooks are a best practice. Well written and up to date Handbooks provide an effective means for an employer to communicate their expectations and address terms and conditions of employment consistently, thus avoiding claims of disparate treatment or other challenges.

The Handbooks that we prepare:

  • Will address compliance obligations and best practices and thereby further reduce HR-related risk;
  • Will be precisely tailored to fit our client's industry and the goals and objectives that our client defines; and
  • Are not off the shelf cookie cutter templates. No two of our Handbooks look alike.

Here is our Handbook Service flow chart.

Diagnostic Compliance Audit Service – This Audit is one of the most effective ways for clients to identify and address issues before those issues become time consuming and expensive distractions in the client's workplace. The Checklist of Subject Matter for the Diagnostic Compliance Audit will serve as the roadmap when a lawyer from Foley & Foley works with the client to conduct the Attorney/client privileged and protected Audit. Here is the checklist of subject matter that will serve as the roadmap for our attorney/client protected diagnostic audit.

Pay Equity Audit Service – Our Pay Equity Audit Service is designed to help our clients achieve compliance with federal and corresponding state pay equity laws and establish all possible affirmative defenses to a gender-based pay equity claim. For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation. We established this service to insure that our clients are not unknowingly violating law with outdated pay practices. Here is the flow chart that will govern each of the specialized audit services.

FMLA and ADA Compliance Audit – Each day we answer dozens of employer questions regarding compliance with these complex laws. The Family Medical Leave Act and Americans With Disabilities Act continue to be a major source of liability for employers. In our experience, non-compliance does not come from a place of willing discrimination or retaliation; but improper administration of leave procedures. This Audit will identify areas of noncompliance and help identify best practices that will minimize the risk of a lawsuit going forward.

Independent Contractor Classification and Joint Employer Liability – In 2016 the Department of Labor announced an increased focus on what it describes as the "fissured workplace." The workplace in many industries is no longer a traditional business with a single employer. Companies increasingly contract out or otherwise outsource activities to be performed by other businesses, increasing the risk of an inadvertent joint employer arrangement. Blurred lines from the fissured workplace make achieving compliance with the wage and hour laws a difficult task. Intense competition between business models like subcontracting, temporary agencies, labor brokers, franchising, licensing and third-party management, has led to a sharp uptick in DOL audits and lawsuits. This Audit focuses on the identification of independent contractor misclassification as well as arrangements that may lead to joint employer liability.

OSHA Audit – In recent years, OSHA has moved beyond hazard control oversight to an enforcement body that oversees a large number of workplace health and safety areas. OSHA can now fine employers directly for retaliatory policies or procedures, even without an employee compliant. Effective risk management requires a careful look at health and safety practices, policies and record keeping procedures before OSHA knocks at the door. This Audit will help employers proactively identify OSHA compliance risks.

I-9 Audit – New I9 forms and a 96% increase in fines are just the beginning. As concerns over illegal immigration increase, the Department of Labor and ICE have increased audits of I-9's to ensure compliance with all U.S. immigration laws. With a multi-national workforce, some employers worry about properly completing I-9 forms, while others wonder how to make changes to forms and where the files should be stored. This Audit will identify potential compliance concerns created during the completion of I-9 forms, self-audits, and storage and destruction of forms.

FLSA Wage and Hour and Timekeeping Audit – Both federal and state laws govern wage and hour and timekeeping practices. Accurately tracking nonexempt employee time, including travel, meals, breaks, after hours work and on-call time continues to be a huge compliance problem for many employers. This Audit has been prepared to assist employers in reviewing their timekeeping practices for nonexempt employees to identifying compliance risks and focus your organization's attention on best practices that should be further developed.

Personnel Files, Electronic Data Safety and Protecting Personal Information – Most employers are unsure of which documents should be included in the personnel file, who should have access to which files, and how long the files should be maintained. As technology has advanced, more and more information is being stored online, and employers are unsure of what paper documents must be maintained. Additionally, identity theft has become the country's number one consumer fraud complaint, and the crime has been elevated to the status of a felony. A prime target for identity theft is employee information which each employer maintains in its human resources and payroll departments. This Audit will facilitate identifying whether sufficient processes are in place to protect employee confidentiality, and comply with document retention and personnel file laws.

New Hire Processing Audit – Effective training and development directly impacts a new employee's ability to become an early contributor. A framework for reviewing policies and procedures, and obtaining signatures on legal documents helps ensure compliance and minimizes risk. This Audit is intended to assist your organization in determining whether your new hire processing follows best practices and complies with employment laws.

Human Resources Function Audit – The purpose of this Audit is to help the HR team, as well as the senior management team, assess the overall effectiveness of the HR Function. It will help insure that HR Services are linked to the client's business and organizational goals. The recommendations from Foley & Foley, PC will help identify areas of strength and weaknesses and will disclose areas where improvement is needed. The 2017 Checklist of Questions will serve as the roadmap for this attorney/client privileged and protected Audit.

Positions Classification Service – This is the service that will help your team insure that all positions within your company are appropriately classified as either "exempt" or "non-exempt" in accordance with state and federal law. This service will insure that your company has met its obligations under the law. Here is our 2017 Positions Classification Service overview and our Positions Classification Service flow chart.

Affirmative Action Compliance Assistance – We will audit and update the Company's Affirmative Action Plan on an annual basis to insure compliance with the US Department of Labor's Office of Federal Contract Compliance Programs' regulations. This service will include:

  • Implementation of processes for sending information to the appropriate Employment Service Delivery Systems (ESDS) to insure the information is provided in the correct format;
  • Updating of subcontracts and purchase orders with new mandatory flow down language;
  • Insertion of new EEO tagline in all job advertisements;
  • Implementation of processes for insuring electronic notices are compliant and accessible;
  • Updating harassment and anti-discrimination policies to include individuals with disabilities and protected veterans, if not already done;
  • Reviewing and updating job qualifications to ensure they are necessary, job-related and do not cause a disparate impact on individuals with disabilities or protected veterans;
  • Updating record retention policies to insure affirmative action records relating to veterans and individuals with disabilities are kept for the correct duration;
  • Updating "invitations to self-identify" for veterans and individuals with disabilities;
  • Training of HR personnel regarding the affirmative action requirements for veterans and individuals with disabilities and document all training;
  • Development of effective outreach and recruitment sources for employees;
  • Review of accommodation policies and procedures in light of Final Rules;
  • Training of recruiters regarding visual identification of individuals with disabilities;
  • Invitations to current employees to self-identify as disabled on the correct schedule;
  • Development of written reports analyzing outreach and recruitment efforts and conclusions of those efforts to be completed in conjunction with each affirmative action plan;
  • Implementation of process for analyzing hiring benchmarks for veterans and utilization goals for individuals with disabilities in each affirmative action plan and design effective audit and reporting systems for taking remedial action if there are areas of underutilization.

All the services we provide under this menu include legal advice and counsel from seasoned employment lawyers. Our advice and counsel is caveat free and fully indemnified by our professional liability insurance. Please let us know how we can help your team.

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