On August 25, the National Labor Relations Board (NLRB) announced that it would issue a Final Rule, to be effective on November
14, 2011, that would require employers to post a notice in the workplace informing employees of their rights, among other things, to organize a union.
The poster must be posted in the same location where other postings are located. In addition, the posting must be set forth
on an employer’s internet or intranet site if the employer regularly communicates with its employees via this means of communication.
Additionally, if more than 20% of the employer’s workforce speaks a language other than English, the posting must also be provided in that language as well.
Failure to post the notice will be considered an unfair labor practice under the National Labor Relations Act . Copies of the notice are available on the NLRB’s website at www.nlrb.gov.
Missclassification Concerns
The Senate recently held a hearing on the Employee Misclassification Prevention Act (H.R. 5107, S. 3254.) This bill requires employers to provide notice to employees and those classified as non-employees of their classification, that their rights to wage, hour, and other labor protections depend upon proper classification, and to direct them to the Department of Labor for further information about their rights. It also requires companies to retain that analysis to give to Wage and Hour Division enforcement personnel who might request it. The legislation would impose civil penalties of up to $1,100, or up to $5,000 for repeated or willful violations, for each misclassification or violation of the record-keeping or notice provisions. If a misclassification accompanies violations under the FLSA’s maximum hours or minimum wage requirements, a worker could recover double his or her liquidated damages.
While misclassifying a single worker may lead to some liability for overtime payments and other benefits, employers should take a hard look at the bigger picture. The IRS has stepped up enforcement of rules regarding independent contractors. Early this year, the IRS started deploying auditors to conduct intensive audits in different industries and including both large and small companies. The federal government believes that misclassification is on the rise given that independent contractors receive fewer incentives to trim costs during these difficult economic times. We must also consider that an IRS audit could lead to an audit by the federal or state Department of Labor.
