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Litigation Vs Legislation

litigation vs legislation

Tips To Avoid Wage And Hour Lawsuits

Wage and hour compliance is one of the hot button items for businesses in 2010, with the promise of increased investigations and fines by both the Internal Revenue Service (IRS) and Department of Labor (DOL). This does not include state or local tax agencies that may also be stepping up their efforts in this area. There have been reports that non-government wage and hour settlements in 2009 grew by 44% over those in 2008. For suits filed under the federal Fair Labor Standards Act (FLSA), lawsuit settlement amounts rose from $253 million in 2008 to $364 million in 2009. Below are some of the major wage and hour problem areas that have historically resulted in lawsuits and continue to be a litigation quagmire for employers.

Proper Classification

There are two major classification errors that occur, which are discussed below;

Independent Contractor vs. Employee: The IRS has strict guidelines on who can be legitimately classified as an Independent Contractor and incorrectly classifying a worker opens the door to steep penalties and increased scrutiny by the IRS. The Federal government estimates that between 1996 and 2004 it lost an estimated $34.7 billion in tax revenue due to the misclassification of workers as an Independent Contractors. 

Exempt vs. Non-exempt Status: Once it has been determined that a worker is indeed an employee the next question is can that employee be classified as exempt. An exempt employee is one that is from the minimum wage regulations, overtime regulation and various other wage and hour provisions. For an employee to be considered exempt their position, work duties, and wages must meet the rigorous requirements set forth by the Fair Labor Standards Act (FLSA). It is important to know if your state also has criteria for who can and cannot be considered exempt as failure to comply with both may result in penalties.

Differences between federal and state regulations

As briefly touched on above, the state in which you operate may have different standards than those outlined in the FLSA, which is the major piece of federal legislation that governs the wage and hour arena. In almost all circumstances when federal and state laws differ the employer will follow the rule that is most advantageous to the employees. For instance; the current federal minimum wage is $7.25 per hour and in California the current state minimum wage is $8.00 per hour. This means that California employers must the state minimum wage of $8.00 as this is most advantageous to employees.

It is imperative to know if your state has any specific wage and hour regulations, what those regulations are and how to properly apply them to avoid unnecessary claims.

Improperly applying wage & hour rules

This last category is wide ranging as there are many regulations in this area that can be misapplied, some of the most common errors are as follows;

• Overtime
• Improper deductions from pay
• Final pay
• Minimum Wage
• Call Back Pay
• Reporting Time Pay
• Standby or On-Call Time
• Meal and rest periods
• Preparatory and concluding activities
• Training Time
• Travel Time

As one can see there are many areas in which a company may be exposed to wage and hour claims. This is why it is essential for employers to understand all wage and hour rules that affect their operations and know how to apply them properly. Below are some tips to assist in avoiding wage and hour claims;

• Develop a thorough knowledge and understanding of all wage and hour regulations that apply to your operation on both the federal and state levels.
• Conduct an extensive Human Resources and payroll audit, some focus areas should be;
  • Determine proper exempt, non-exempt and independent contractor statuses
  • Proper payment of overtime
  • Payment for all hours worked
• Train managers on wage and hour regulations and explain how errors can affect the company. Also, remind them that they are accountable for the proper management of their department(s)/employee(s) and wage and hour compliance is part of their performance and will be judged accordingly.
• Educate staff on your organizations rules about overtime, proper use of the time clock, taking meal and rest periods, and all other wage and hour related items. In addition, be sure to educate the staff on the repercussions for failing to follow the company rules in this area.
• Take wage and hour complaints seriously and immediately correct any errors.

what is the primary debate about gun control?

• What is the primary debate surrounding the gun control?
• What are Coeur parts of the Constitution, pieces of legislation, or court decisions on each side of the issue?
• What kind of strategy have the sides taken to achieve their goals? (ex: legislation, litigation, carrots vs. sticks)
• Who are the major supporters (US Presidents, international actors, or other key players) on each side of the issue,

The debate concerning gun control has many different facets. There is the extreme left who feels that all guns are evil and should be banned from private ownership. Then there is the extreme right who feel that anybody should be allowed to own anything.
The Constitution is clear on this matter in the 2nd amendment, which reads: ” A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed” The key words in this right are “the people”. As used in the 1st, 4th, and 5th amendments it indicates that this is an INDIVIDUAL right, not a collective right as many on the left side of the aisle would like it to be.
The United States Supreme Court recently ruled that it is an INDIVIDUAL right in a landmark case in Washington D.C., much to the chagrin of the gun grabbing left. Previously in United States vs Miller, the Supreme Court had ruled that the right applied only to those guns found suitable for use in the military. At the time it was considered a boon to the gun grabbing left, but upon further reflection they have distanced themselves from this ruling, coming to realize that if strictly followed, it would enable the general populace to be armed in a manner identical to the standing army.
Both sides use the legislative process to enact new laws or repeal old laws on the books restricting the lawful use of firearms. The Brady Bill is but one example of this.
The strategies employed by the gun grabber almost always relies on the uneducated fears of the typical “soccer mom” who has no data to go on other than what the likes of Gun Control Inc. feeds them. Most of the time when the opposing view is allowed to be expressed, the attitudes of the soccer moms changes to either one of apathy, or “pro-choice” in the personal ownership of firearms. Gun grabbers will point to such tragedies as Columbine, Va tech, and other shootings to try and prove their point about how laws are needed to prevent these atrocities from happening. What they DON”T tell you is that there w3ere already laws on the books that if followed, would have prevented them from happening. The problem with laws in preventing crime is they are only effective if the people don’t break them. Common sense right? In each of the shootings portrayed in the news media, the shooters should: A. Never been in possession of a firearm. B. Never been in possession of a firearm in a “gun free zone”. C. Used the firearm to commit a felony.
What the law does do is hamper the law abiding citizen from adequately being able to defend himself or herself. If 1 single person had been armed, properly trained, and proficient in the use of a firearm at ANY of these atrocities, the outcome could have been VERY different.
What celebrities are touting gun control? Usually the liberal left leaning ones who have no problem using them in their movies in an illegal fashion, citing their first amendment rights to do so. People like Jane Fonda, Rosie O’Donnell, Barbara Streisand, Timothy Hutton, etc.
What celebrities are pro-gun ownership, Tom Selleck, Gerald McCreany, Charlton Heston (RIP), Steven Segal, and Sylvester Stallone.

To honestly figure out where you stand on the issue of personal gun ownership ask yourself these questions.
1. What is the average response time for the police to get to my house on a 911 call?
If it is more than 5 minutes ask yourself how long it would take the criminal to rob or kill you and your spouse?
2. Who do you think a criminal is more likely to target for a robbery/ rape? A person he KNOWS to be unarmed, or a woman who just might be packing a .38 in her purse?
3. If you were faced with a situation where a criminal was threatening to rape you or kill you, could you use lethal force in defending yourself?
If you could not, would you want somebody else near by to be able to do so on your behalf?
If not, ask yourself how their doing so on your behalf would be any different than a policeman doing it on your behalf?

It is a dangerous world we live in, and wishing for a utopian society where everybody obeys all the laws is a waste of time, effort, and money. In the long run it becomes dangerous as it insulates people from the real world and makes dealing with a confrontation with a raper/robber something they are not prepared to do, allowing the criminal element a much easier time to perpetrate the crime.

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