Articles Posted in Uncategorized

By Lane V. Erickson, Attorney

The Older Workers Benefit Protection Act (OWBPA) forbids discrimination by employers based on age when providing employee benefits, like severance. The OWBPA also ensures that no employee is coerced or pressured into signing legal waivers of rights under the Age Discrimination in Employment Act (ADEA).

The OWBPA was enacted to “protect the rights and benefits of older workers” who are being laid off. 　The U.S. Supreme Court has interpreted the statute as requiring “‘strict, unqualified statutory stricture on waivers’” executed by these workers in exchange for compensation and benefits. 　The party defending a release’s validity bears the burden of proving compliance.

By Lane V. Erickson, Attorney

Employment ends for positive reasons such as a new job, a resignation or retirement. Employment also ends for more negative reasons such as layoffs, downsizing, job termination or firing. Assuming that you have taken all possible steps to help an employee improve their work performance, it may be time to fire the employee. Here are the legal and the ethical steps in how to fire an employee and ensure that the company’s actions as you fire an employee are above reproach when faced with the necessity of terminating a large number of employees at the same time. Commonly known as a “layoff” employers must often take several proactive steps in carrying this process out legally and correctly.

The Worker Adjustment and Retraining Notification Act (WARN Act) is administered by the U.S. Department of Labor Employment and Training Administration (DOLETA). It requires most employers with 100 or more employees to provide employees, bargaining representatives of the employees (i.e., unions), and specific government agencies at least 60 days notice of any plant closing and mass layoff. The purpose of the WARN Act is to give workers and their families some transition time to prepare for the prospective loss of employment, to seek a new job, and, if necessary, to seek training in a new skill or retraining in an existing skill that will allow the workers to obtain replacement work.

By Nathan R. Palmer

Gamesmanship is common during a contentious divorce. One common example of gamesmanship is the hiding of marital assets in anticipation of divorce. Hiding assets can come in many shapes and sizes, including stowing cash from bank accounts, taking personal property items from the home, and going on a spending spree. Is the other spouse entitled to compensation when a spouse wastes marital assets during divorce?

Spouses owe each other certain fiduciary duties during the term of the marriage. These fiduciary duties include transparency regarding financial assets and all other property matters. Courts may consider whether a spouse has dissipated or wasted assets by spending marital funds in some improper manner, thereby reducing the amount of assets available for division. The burden of proving dissipation of marital assets can be heavy.

By Lane V. Erickson, Attorney

The Fair Labor Standards Act of 1938 (abbreviated as FLSA; also referred to as the Wages and Hours Bill) is a federal statute of the United States that changed employment relationships dramatically. 　The FLSA introduced the forty-hour workweek, established a national minimum wage, guaranteed “time-and-a-half” for overtime in certain jobs, and prohibited most employment of minors in “oppressive child labor”, a term that is defined in the statute. It applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce, unless the employer can claim an exemption from coverage.

The FLSA was originally drafted in 1932 by Senator Hugo Black, who was later appointed to the Supreme Court in 1937. However, Black’s proposal to require employers to adopt a thirty-hour workweek was unpopular with employers who were used to working employees up to 12 hours a day. In 1938 a revised version of Black’s proposal was passed that adopted an eight-hour day and a forty-hour workweek and allowed workers to earn wage for an extra four hours of overtime as well. Children under eighteen were prohibited from certain dangerous jobs, and children under the age of sixteen could work during school hours.

By Lane V. Erickson, Attorney

In a perfect world an employer would never have to terminate any employee. All employees would work hard, be profitable and be worth keeping as an employee. However, the reality is quite different. There are often employees that are poor workers, or whose personalities are caustic in the workplace. Additionally, even if all the employees are good, sometimes the business is not doing well and can’t afford to keep the employees hired. Whatever the reason, there are often times when an employer must terminate an employee. Here are 4 steps to take anytime you are considering terminating an employee.

1. MAKE SURE THE REASON FOR TERMINATION IS LAWFUL.

By Lane V. Erickson, Attorney

COMPENSABLE TIME

Under the federal Fair Labor Standards Act (FLSA), an employer must pay an employee for all hours that are legitimately worked. However, sometimes there is a dispute about whether certain activities are work and therefore whether the time spent doing these activities is compensable time. This is an area where the FLSA leaves the determination to the states. In Idaho, based upon its wage and hour statutes, hours worked, and thus compensable time, does not include the following:

By Lane V. Erickson, Attorney

A job offer letter is an opportunity to start the employment relationship off on a positive note. In this letter, the employer has an opportunity to describe the job and its responsibilities. As with any type of letter, a job offer letter should be direct and positive. It is an opportunity to the candidate know that they were chosen specifically and that the employer recognizes the skills and experience the new employee can bring to your company. Doing this encourages new employees to feel confident, not only of a decision to accept your job offer, but in their ability to perform the job itself.

STICK TO THE FACTS

By Lane V. Erickson, Attorney

According to a Society for Human Resource Management (SHRM) survey more than eight out of ten human resource professionals reported that they regularly conduct reference checks for professional (89 percent), executive (85 percent), administrative (84 percent) and technical (81 percent) positions. Regular reference checks were less likely, but still happened, for skilled-labor, part-time, temporary and seasonal positions. Information routinely provided to reference checkers by surveyed employers included: (1) dates of employment for the job applicant; (2) eligibility for rehire; (3) salary history of the job applicant; and (4) employability of the job applicant.

Even with this high number of reference checks occurring we all know that references for a job applicant should be viewed through a filter of reality. Usually a job applicant will choose only those persons who will provide glowing praise as a reference. However, even in these situations, a check of references by an employer can help to provide an objective view of the job applicant if the right approach is taken.

By Lane V. Erickson

Several times a week I have clients who come to me and ask me to either review an employee handbook for them or to create an employee handbook for use with their employees in their business. 　The most universally, two specific questions that come up from my clients are discussed below.

WHAT IS AN EMPLOYEE HANDBOOK?

By Lane V. Erickson, Attorney

Many employers do not know or understand the laws that apply when it comes to hiring or choosing to not hire a prospective employee with a criminal record. Additionally, the amount of misinformation that exists and that people hear from well-meaning friends or unreliable sources on the internet only add to the confusion. Below are several myths that exist concerning whether or how employers can use criminal background checks in the employment process and actual facts to dispel those myths.

MYTH #1