Good News - December 2018

COVER STORY 22 DECEMBER 2018 Good News • South Florida Edition During the 34 years that I practiced labor and employment law, 17 of them as a Christian, I have often pondered the question of whether the Word provides all the guidance we need to manage employees The obvious answer is Yes…and No. The problem, as always, is not with the Bible but with its application by man. With respect to the workplace, my intuition and experience dictate that Yeshua’s Golden Rule is the simplest biblical guide for managers and owners. Unfortunately, the Golden Rule is not a panacea for workplace perfection. Rather, it is a solid rock upon which to build your workforce. By following our Lord’s pre- scription, we demonstrate empathy, a key ingre- dient of leadership. So, will following the Golden Rule in your workplace keep your company safe from em- ployee claims? No, but it will significantly reduce your risks because you addressed the human el- ements. Government rules, particularly the Fair Labor Standards Act, create obligations that are not guided by scripture. These rules are purely secular, highly technical and dangerous to the unwitting violator. I cannot stress enough how important it is for every employer to make sure that they are complying with the Fair Labor Standards Act (FLSA) for the following reasons: 1)The FLSA awards attorney’s fees to a prevailing employee (but not the em- ployer), and attorneys fees are the biggest issue in that litigation. The fees do not have to be proportional to the recovery; I have seen cases where an employee won $1200 but his lawyer received $120,000 paid by the employer. In addition, that same em- ployer had to pay his lawyers even more than $120,000. In that case, the minor FLSA violation ended up being a quarter million dollar mistake. 2) The FLSA and its regulations can be hyper-technical and are easily violated in good faith. For instance, a failure to have exacting time records can result in a “pre- sumption” that an employee’s recollection of the number of hours worked is accurate. 3) FLSA cases can become class actions and cause exponential exposure. In FLSA cases, the court can require an employer to give notice to past and present em- ployees advising them of their right to join the lawsuit; and the original plaintiff’s lawyer gets paid by you for his efforts to find more employees to sue you. If you think it is dif- ficult settling one claim, try settling a collective action with 20 plaintiffs. 4) There are tons of lawyers taking these cases, almost all on a contingent basis, meaning the likelihood of suit is increased, especially here in South Florida which leads the country in FLSA claims filed. 5) Paying a salary is not near enough. It has been a common misunderstanding that if an employer pays on a salary as opposed to hourly basis, and does not dock pay for missed time, that the employee is “Exempt.” Acting upon this misunderstanding can have devastating consequences. Whether an employee is exempt is a complex question that requires analysis and a real understanding of an employee’s job. More- over, documentation such as signed job descriptions and appropriate performance evaluations are very helpful to prevent a challenge. The Good News is: With proper counseling, it is not difficult to comply with the FLSA. The key things that an expert will look at are 1) your timekeeping system and policies that assure it is accurately maintained; 2) a critical look at your salary exemp- tions to assure compliance and documentation of compliance; and 3) a review of how overtime pay is calculated. For example, if you pay an employee some sort of com- mission or override, it must be included in the overtime pay calculations. As a service to the Good News Community, I am offering to conduct FLSA compliance audits for a nominal price. For more information, visit HRriskadvisor.com. Is theGoldenRule good enough? Yes, but the devil is in the details! Stuart Rosenfeld HR Risk Advisor