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Article updated: 12/24/2012 9:41 AM

Employment wage-and-hour issues loom in New Year

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By Jim Kendall

You probably didn't ask Santa for an employee policies review.

Well, it's pretty easy to do your own -- which actually might be a good idea.

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Even though bigger businesses with deeper pockets are more vulnerable to employment-related lawsuits, small businesses can be vulnerable, too, says attorney Renée L. Koehler. In fact, Koehler says, "The number of wage claims coming in our door the last year is more than twice the number of traditional discrimination claims." That trend seems likely to continue in the New Year.

Overtime, tip credits and social media are the key issues.

There is good news. Koehler, a partner at Koehler & Passarelli LLC, a management-focused employment law firm in Woodridge, says small businesses are less likely to be ensnared in class action suits, thanks to smaller numbers of employees. And there are relatively easy steps employers can take -- a human resources audit, for example -- to help assure that employment policies pass muster.

Employment issues can be complicated:

• Overtime, Koehler says, has become "a huge issue."

Of course you know, beyond the shadow of a doubt, which employees are eligible for overtime pay and which are not: Exempt employees don't get overtime because they typically have more discretion in how they perform their tasks; nonexempt employees, generally paid on an hourly scale, work to job descriptions that more tightly dictate how their tasks shall be completed.

After 40 hours, nonexempt employees get overtime, time and a-half.

Although the Fair Labor Standards Act provides the details, who does and doesn't get overtime can be confusing -- and thus litigious. Job descriptions can help, but an employee's decision-making latitude may matter more.

• Tread carefully in social media. A new Illinois workplace privacy law, which becomes effective January 1, bars employers from demanding employee passwords and other private social media information, but the law does allow employers to otherwise monitor company email and equipment.

The National Labor Relations Board has begun scrutinizing social media issues, even in nonunion workplaces.

• Tip credits can raise hackles in the restaurant sector, because tip totals help employers meet minimum wage requirements. Koehler suggests that restaurant managements require employees to sign off on their cash tips at the end of every shift.

Among the employment-related actions Koehler says employers should take:

• Review your employment policies and employee handbooks to make certain they match -- and are up to date.

• Conduct an HR audit "the way the government does audits," Koehler says. "Look for the weaknesses" regulators look for, she says.

The audit can be performed by a labor attorney such as Koehler or, she says, internal HR staff can do the audit. It's enough, Koehler says, to do an HR audit every two or three years.

• Jim Kendall welcomes comments at JKendall@121MarketingResources.com © 2012 121 Marketing Resources Inc.

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