Thanks to Tsheets.com for interviewing me for their FLSA compliance related article, 7 Deadly Sins of FLSA. It’s in a cool interactive format. You can also read the entirety of the sections that I’m quoted in, as a PDF here: flsa-7-deadly-sins. Also, thanks to Broadly (a Vice.com channel) for quoting me in their article How Freelancers Are Forced to Fend for Themselves Against Sexual Harassment. Finally, thanks to Lin Grensing-Pophal for quoting me in Obesity and Hiring: Steering Clear of Legal Trouble, which is on HR Executive Online & Recruiting Trends.

FLSA wage and hour lawsuits are increasing. Learn which FLSA violations can trip up your business and how to avoid them.

FLSA Violations You Must Avoid

Lawsuits are rising as employers continue to violate the wage and hour provisions of the FLSA. But, in most cases, they’re doing it unknowingly.

Are you one of them?

Ignorance of the law is not an alibi, and it’s certainly not a defense against wage and hour lawsuits. Now is the time to take a hard look at your company and ensure you aren’t unknowingly committing one of these deadly sins of the FLSA.

Over 8.6 million employees are currently misclassified.

Misclassifying Employees

Over 8.6 MILLION employees are currently misclassified — and that number is only going to grow when the new Department of Labor overtime rule kicks in. The consequences of misclassification can be costly, so, ask yourself, is your team among the misclassified?

Learn More

Overlooking or Encouraging Off-the-Clock Work

More than 81% of U.S. salaried employees regularly conduct work outside of working hours. But does checking work email, listening to a work related voicemail, or responding to a co-worker’s text count as work? And should employees be compensated?

Find Out

Failing to Pay Unauthorized Overtime

Nearly 16% of U.S. employees admit to being “workaholics” in the office — they regularly put in extra hours five to seven days a week. But if you’ve got an overtime policy that forbids it, do you still have to pay them for that time?

Get the Answer

Not Tracking Breaks Properly

Research shows that only 1 in 5 workers actually step away from their desk for a midday meal — most prefer to either work through lunch or eat at their desk. If that’s the case, should they clock out for lunch, or remain clocked in? Are your employees required to take a break?

Read More

33% of employees admit they are not required to track their hours.

Keeping Sloppy or Inaccurate Records

Of the 34,800 workers who responded to a recent survey by the American Payroll Association, nearly 33% of them admitted they are not required to input their hours worked at their jobs. Are your employees among them? Accurate time and payroll records are paramount to defense against an FLSA lawsuit.

Learn More

Not Compensating Interns or Volunteers Appropriately

More than 65% of bachelor’s degree graduates from the class of 2015 participated in an internship — and that number is rising each year. Chances are, you’ll find yourself hiring an intern within the next several years. Do you have to pay them?

Get the Answer

Not Staying Up-To-Date on DOL or State Regulations

We’re facing a record-breaking year in terms of FLSA lawsuits — and those numbers are still on the rise. There are many factors contributing to the spike, but the number one reason is simply this: Employers continue to violate the FLSA — and, most of the time, they do it unknowingly. Are you one of them?

Find out

Meet the Experts

We reached out to the nation’s top wage and hour experts to find out how business owners can avoid committing these deadly sins – and what to do if you find yourself at risk.

Maria O. Hart–Parsons, Behle & Latimer; Daniel Abrahams–Brown Rudnick LLP; Staci Ketay Rotman–Franczek Radelet; Philip K. Miles–McQuaide Blasko; Dena H. Sokolow–Baker Donelson; Johnathan Young–Greenberg Traurig, LLP; James R. Mulroy–Jackson Lewis; Mark S. Goldstein–Reed Smith, LLP; Michael S. Kun–Epstein Becker & Green; Charles A. Krugel, Labor & Employment Attorney

More FLSA Resources

 An Overview of FLSA Compliance

 What if I’m hit with an FLSA Lawsuit?

 FAQs About Exempt Vs. Non-exempt Employees

 What Are the New 2016 FLSA Overtime Regulations?

Please refer to a professional tax or legal advisor regarding specific requirements of FLSA and how they impact your business. TSheets does not recommend particular employee classifications or practices and leaves those decisions to the discretion of your organization.

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hreonlinereclogo

http://www.hreonline.com/HRE/view/story.jhtml?id=534361338 also on http://www.recruitingtrends.com/REC/view/story.jhtml?id=534361374

Obesity and Hiring: Steering Clear of Legal Trouble

Despite a recent court ruling that finds an obese candidate who was not hired for a machinist job did not qualify for protection under the Americans with Disabilities Act, experts are still warning employers to be careful with their hiring practices so they don’t get sued in the first place.

Oct 26, 2016
By Lin Grensing-Pophal

Employers can consider themselves emboldened by a Nebraska court’s ruling that an obese job candidate did not qualify for protection under the Americans with Disabilities Act. But, even in light of the good news, experts still say employers should re-examine their hiring practices to ensure they won’t be the next ones to be sued for a potentially weight-based discriminatory hiring practice. The real consideration here is whether a candidate’s obesity prevents him or her from doing the job in question.

“Obesity is not currently covered under the Americans with Disabilities Act, unless it is due to a medical condition such as lipedema and lymphedema,” says Steve Lindner, executive partner of The WorkPlace Group, in Florham Park, N.J. “However, some states, such as Michigan, and some cities across the country do have laws that prohibit discrimination on the basis of height and weight unless related to actual job requirements.”

“I don’t expect employers to change their practices based on the Melvin Morriss, III vs. BNSF Railway Co. lawsuit case,” he adds, “in which BNSF successfully defended its position.”

Deanna Arnold, owner of Employers Advantage, an HR-solutions provider in Cornelius, N.C., says the current employment regulations exist to specifically prevent employers from denying people employment or taking adverse action against them “based on things that aren’t job-related, and this is another example.”

“Someone’s weight is not a direct reflection on their job skills, or a predictor of success in a role,” she says. In this case, however, “he specifically didn’t get the job because he didn’t pass the required test to be able to safely conduct the work in the role. That is completely different than someone being denied employment because they are obese for something like an accounting or marketing role.”

But if obesity was to be considered a disability, would that change things?

Could obesity be considered a disability and, therefore, be impacted by the ADA? No, says Lori K. Long, an author, consultant and an HR professor in the school of business at Baldwin Wallace University in Berea, Ohio. “Obesity is not a disability under the law because it has not been shown to be a physical impairment that substantially limits a major life activity,” she says. However, the answer to this seemingly simple question gets a bit murky. “Obesity may be associated with a physical impairment — like diabetes — and, if someone has a physical impairment and is substantially limited in a major life activity, [he or she] could be considered disabled under the law,” Long says. Even so, she adds, the employee must still be able to perform the essential functions of the position, with or without an accommodation. If the employee can’t, the employer is not required to hire him or her.

Charles Krugel, a management side labor and employment lawyer and HR counselor in Chicago, supports this position. “As a general matter, obesity is not an ADA-covered disability,” says Krugel. Whether or not it should be, he adds, “is a topic best left to Congress.” He points to two key factors that can impact the answer of whether obesity leads to health issues that restrict someone from life’s essential activities — such as employment — and whether the individual is otherwise qualified to do the job.

There is no one-size-fits-all answer, he says. Each situation requires independent analysis and evaluation “of a specific job’s essential functions and what, if any, accommodations are needed for an ADA-disabled individual to perform those essential job functions.” This analysis, he says, “is probably much like what occurred in the Morriss case. It’s basically an evaluation of the job’s essential functions, responsibilities and requirements in juxtaposition to industry standards, regulations and laws.”

It’s important, says Long, for employers to have written job descriptions that clearly outline the essential functions of a job before hiring for a position. “Employers should make all applicants follow the same steps in the selection process and only require a medical examination if there is a job-related reason for the medical examination,” she says. Such an exam can only be required after an offer has been made, however.

“The old adage ‘Don’t judge a book by its cover’ is good advice when it comes to high-stake employment decisions,” says Lindner. “Keep personal biases out of the hiring decision process. Focus instead on candidates’ qualifications rather than their weight and height, unless, of course, job requirements otherwise dictate. Employers do have a responsibility to maintain safe work environments and, where height and weight restrictions exist, candidates exceeding those requirements will be denied employment for their own safety.”

Send questions or comments about this story to hreletters@lrp.com.
Copyright 2016© LRP Publications

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How Freelancers Are Forced to Fend for Themselves Against Sexual Harassment

by Elizabeth King
NOV 2 2016 7:40 PM
PHOTO BY JACOB LUND VIA STOCKSY

Lacking a standard protocol for dealing with sexual harassment, freelancers are often left without a clear course of action when a boss gets inappropriate over email or a married colleague slides into their DMs.

In the traditional workplace, when a colleague makes an unwanted advance or unsolicited sexual comment, there’s typically a protocol: You report the incident as sexual harassment to your Human Resources department, and look to them to help to ameliorate the situation. But as the freelance economy—already a workforce of 53 million people in the US alone—continues to grow, more freelance employees face incidents of sexual harassment involving colleagues or supervisors while working remotely, usually via email, text message, social media, or workplace chats. And in remote workplaces, the sexual harassment protocol isn’t always so clear.

A 2011 study found that 38 percent of women have experienced some form of workplace sexual harassment, a percentage that may not be surprising to those following more public allegations of workplace harassment in recent months, from national media outlets to reality TV to the Supreme Court.

Read more: The Sexism at the FBI Was So Bad They Had a Long-Running Joke About Getting Sued, Lawsuit Says

Reporting harassment and sexist behavior as a remote freelance employee is challenging in many of the same ways that it is for employees in brick-and-mortar workspaces. In both traditional and remote workplaces, victims often struggle with the fear of repercussions for speaking out or disbelief. Especially for transgender employees, there’s a very real risk of being fired for reporting harassment.

However, unlike many employees who work with their businesses in person, freelancers don’t necessarily have access to corporate resources such as HR, which can make harassment feel like an even more isolating or hopeless experience.

Alice* was freelance writing for an up-and-coming podcast network on a loose agreement as a remote employee in 2014. She tells Broadly that everything was going fine at first, but then a host of a long-running podcast at the same company crossed the line with her on Twitter. Alice had responded to one of the podcast host’s tweets about sports, which he quickly escalated to sexual innuendo. Alice replied with a heavy-handed joke in an attempt to point out how inappropriate the conversation had turned, but the host continued to make sexual advances.

Alice says that over the next few months, the host sent sexually inappropriate direct messages to her via Twitter. “He was never as forward as he was the night that [the harassment started],” she says, “but it was clear to me that he was using my interest in the show as a way to foster some sort of private closeness between us, which, given what he had said, made me uncomfortable.”

“On my twenty-second birthday, he messaged me out of the blue about how he wanted to push me up against a wall and fuck me.”

She says she stayed silent about what had happened—apart from consulting with her husband—for fear of losing her job. “I was absolutely afraid that if I tried to do something in response to [the harassment] that my show would be dropped from the network, effectively killing off most of our listenership,” she says. “I was also afraid of being alienated by the owner.”

Of course, harassment over social media is far from uncommon, but when it’s a co-worker doing the trolling, it can be even more difficult to report and block.

Natalie, a freelance writer, says she was also harassed via sexually inappropriate direct messages by a senior writer at her first writing gig. “For weeks, I subtly tried getting him to realize how weird and gross this was without having him get mad and jeopardize my work at the company,” she says. “I’d say things like, ‘Does your wife know you’re sending these? You can say whatever you want but only if your wife explicitly knows you’re doing this.‘ He’d always ignore [that] and change the subject. On my twenty-second birthday, he messaged me out of the blue about how he wanted to push me up against a wall and fuck me. That was when I reached my limit.”

Natalie had never been informed that she had any access to HR, and it wasn’t until she finally broke down and told her editor about what had been happening that she found out that she did (although this isn’t always the case for freelance employees). Natalie says her editor was “horrified and sympathetic,” and immediately told the editor-in-chief about the senior writer’s harassment. To her knowledge, the publication did nothing to reprimand the him, though he ceased his harassment after Natalie came forward.

Natalie says that the harassment left her feeling “minimized” and made her question her career path. “I looked at this gig as affirmation that I was on the right track and could make it as a writer, and as soon as that first DM came in, I immediately felt objectified and disrespected.”

“As soon as that first DM came in, I immediately felt objectified and disrespected.”

While Natalie isn’t alone in her experience, statistics on just how many remote freelancers face sexual harassment aren’t currently available. Charles Krugel, a Chicago-based HR counselor and management-side labor and employment lawyer, tells Broadly that both transparency and revenue issues make it virtually impossible to collect accurate statistics on this issue, but he does see sexual harassment for freelancers as a serious issue. “It’s not the norm, but it’s definitely present and identifiable,” he says.

For freelancers who want to pursue action against their client, there are still further challenges to face. According to Krugel, “many sexual harassment statutes require there to be an adverse or tangible employment action, or threatened employment action. These types of actions aren’t readily apparent in online harassment situations. A freelancer may have to show that pay or other benefits were withheld as a result of the alleged harassment.”

Technically, under civil rights and tort laws, online workplace harassment is essentially the same as in-person harassment, Krugel says. “For all practical purposes, online harassment isn’t really that different from in-person or verbal harassment,” he says. “You have the same power disparities at play here. Someone is harassing another person by using sex as a weapon or means to control the other person.” He says that the challenge for freelancers, though, is demonstrating that a “traditional employer-employee relationship” exists, which means that “the hierarchy of power may not be easily determined or apparent.”

Krugel emphasizes how important it is to keep a record of the harassment as it occurs, and recommends that that freelancers first attempt to bring the harassment to the attention of the client. Harassers are “usually not looking for a fight,” Krugel says. “They’re usually looking for a passive victim. If the harassing behavior becomes unbearable or too obnoxious, then [go] to a third party, such as a regulatory agency [EEOC or equivalent] or to an attorney. But in most instances, give your [client] the chance to remedy the situation first.”

“Sexual harassment, whether it takes place in person or online, is harmful.”

Noreen Farrell, executive director of the women’s rights organization Equal Rights Advocates, tells Broadly that all sexual harassment is dangerous and especially difficult for freelancers to navigate. “Sexual harassment, whether it takes place in person or online, is harmful,” Farrell says. “While the law protects most employees from sexual harassment at work and includes harassment that may take place online, independent contractors and freelancers are not often helped by workplace anti-discrimination laws.”

Because federal protections don’t always adequately address the realities freelancers face when experiencing sexual harassment, more action is needed at the state-level as well. Currently, New York is working to pass legislation that would address gaps in protections for freelancers.

New York City Councilmember Brad Lander is currently working on passing non-discrimination legislation that would protect freelancers from workplace discrimination in New York City. If the bill passes as it’s currently written, “sexual harassment to a freelancer would be treated the same by the law as it would sexual harassment to a full-time employee,” a spokesperson told Broadly.

On Thursday, New York City passed the landmark Freelance Isn’t Free Act to protect gig economy employees from wage theft. Also introduced by Lander, this bill demonstrates that progress is being made on freelancer rights in at least one major city.

Despite the lack of statistics and visibility, remote workplace sexual harassment of freelancers is a real problem that will only become more important as the freelance economy continues to grow. While legislators work to protect freelancers, those who work from their living rooms, coffee shops, libraries, and remote offices across the country can know that they are not alone, and while they are somewhat limited for now, there are resources on their side.