Sign New Jersey Arbitration Agreement Now

Document type sign arbitration agreement new jersey now

there we go welcome everyone oh don't meet yourself gordon we won't be able to unmute you there we go welcome everyone this is the employer handbook zoom office hour didn't figure that out already my name is eric meyer i am the publisher of the employer handbook at the employerhandbook.com i'm also a lawyer an employment lawyer at fisher broyles the first and largest distributed law firm cloud-based law firm in the world and i am joined today by one of my fantastic partners i am sitting up here in cherry hill new jersey but i've got i've got a southern gentleman here with me gordon how you doing today buddy very well thank you appreciate you having me tell everyone a little bit about yourself so i am eric's partner uh at fisher broyles i have been uh practicing law for longer than i can remember and uh like eric i focus uh primarily on representing companies in labor and employment matters uh and although i do reside in the south i am a native new yorker i'm sure you can tell from my voice i do not originate from the south so um that's kind of my little uh intro and um certainly i look forward to uh providing you some guidance and and wisdom today as eric uh steers us through this webinar excellent well thanks for thanks for being here gordon and apropos what gordon just said you know we're going to give some advice but it's not really legal advice he's a lawyer i'm a lawyer i'm not sure how it works but what we're doing today is not legal advice just just remember that we're not creating any attorney-client privilege um we are not giving any sort of specific legal advice and uh you know our clients pay for that and i see some clients on here which is a bit of a cop-out but that's okay you guys can still ask questions in the chat but what we're doing still it's not providing actual legal advice if you want legal advice go contact your lawyer pay for it um he or she will say it depends a lot that might be a bit confusing because we're going to say that too but we'll do our best to answer your hypothetical questions that you're asking for a friend anyway we've got so much to cover today first thing we wanted to do is talk a little bit i'm going to update you i'm going to start it's my pod it's my webinar i'm gonna start um we're gonna talk a little bit about the biden stimulus and where it stands so last night um one of the house committees uh was pouring through the biden stimulus i've read and you you may have seen at some point that it was supposed to be a minimum wage hike in in in the vitamin stimulus i don't know that it's going to make it through looks like there was some kind of parliamentary procedural snafu with the minimum wage hike um minimum wage was going to be what it's going to step up over five years i think it was yeah so by 2025 the proposal was to increase it to 15 an hour under the raise the wage act um this was a reintroduction um this this bill has been brought up in several sessions of congress uh not a surprise certainly eric because you've got um 29 states and dc that have minimum wages that are above the current 725 per hour and then you have a few states that already passed legislation recently to raise their their state minimum wage to 15 an hour that being california massachusetts and florida so it's kind of a natural progression in my view but uh yes and i saw the republicans in the senate are using some vehicle to to block it they won't allow it to be included in the appropriations bill so i agree with you right now it doesn't seem to have enough traction yeah yeah um and that was one of president biden's you know big initiatives was to raise the minimum wage but it's not to say it won't happen and if it does happen like gordon said it's going to be a step up over time we're not going from seven and a quarter to 15 overnight it would happen over probably five years but here's what i can tell you about what was in the latest version of the house bill that i saw family's first coronavirus response act they're talking about extending the credits that employers can take through the end of september so let's rewind a little bit remember families first coronavirus response act paid sick leave a family leave for coronavirus related reasons that sunset on december 31st 20 2020 if you were a qualifying employer fewer than 500 employees you could but did not have to continue to provide ffcra leave and get the tax credits through march 31 2021 the current draft bill would extend that march 31 2021 deadline through september now at some point there was talk of basically making it mandatory again for employers of less than 500 but giving them the same tax credit but then also bringing in employers with over 500 employees and having them provide ffcra leave with no corresponding tax credit that is not in the bill so it's again looks like it's going to be voluntary through september you're going to be some um a pump in the in the tax credit it goes from 10 000 to twelve thousand so you know we'll see what the final version looks like but hey you know that's you know voluntary tax credit why not um one other thing on on the on the stimulus i'm going to close the loop getting back to minimum wage there is another proposal from mitt romney and tom cotton in the senate it's called the higher wages for american workers act and that would increase the federal minimum wage to ten dollars um automatically raising it every two years to match the rate of inflation but the catch with that not really a catch there's another part to it and that is that it would require employers to use e-verify to ensure that businesses can't hire illegal immigrants i would suggest to you um given that we have um essentially democratic control in the senate um that that is not going to become the law but i just want to put it out there that that does exist um there is some other non-biden stimulus related legislation going on that we want to talk about a question came up during the last uh zoom session office hour about the pro act and i said i would get to it and we didn't get to it so let's get to it now gordon one time i want a little bit about the pro act which is sort of handy in i guess both the house and the senate right yeah so um democrats on february 4th introduced what is acronym of pro-act is protecting the right to organize act of 2021 it is again a re-uh introduction of a bill that was passed by the house last march and the 2021 version has most of what the prior bill had but it is reporting to dramatically um amend the national labor relations act and so if you want eric i can kind of go through some of the highlights sure okay so one one of the more salient issues is that um it would restore joint employer status that that i.e the test that's used to determine joint employer under the pre-brownie ferris decision brownie ferris basically held that you needed direct and indirect control in order to um be considered a joint employer and then the current standard is that if you don't even if you don't um you have to exercise a call sorry if you don't exercise that control you would not be considered a joint employer but this would roll that back to if you have the right to do so you would essentially be a joint employer even if you didn't exercise in in that regard another significant and controversial component is this abc test that comes out of the state of california now the abc test is to determine who's an independent contractor and so it incorporates this test into the national labor relations act and essentially unless someone's free from control and direction in performance of the service they're performing they are not considered an independent contractor and it has to be outside of the usual course of the business meaning if anything that's uh integral with this that they're doing that's part of the business they couldn't qualify as a contractor and then they have to be an independent trade profession like your lawyer is clearly not one of your employees when you hire outside counsel so it would be a very stringent test um there's a couple other things that are probably important to most of y'all one being it it's going to make a more stringent standard for what is considered a supervisor because supervisors are uh uh not part of uh who can collectively bargain or who have rights under the um you know unfair labor practice provisions um they wouldn't be part of the rank of file uh and then there is a whole push to give unions more um speed and and simplicity in being able to conduct elections it's very anti-employer in that regard including mail balloting which is not permitted right now and then there's a preemption of the right to work states which would mean it would mandate um that all employees would have to pay union dues uh and it'd have to be part of the whole collective bargaining so forth so those are the but but to me i'm saving the best for last the whole barring collect collective actions or class action waivers in arbitration agreements um if if you have followed along supreme court in epic systems held not too long ago that you can create an arbitration agreement with an individual employee that would allow for the right to waive class or collective action waiver status which means that person would have to independently arbitrate any wage an hour claim they would have this would completely throw that out and mandate uh that no one can borrow class actions no one can wave it and obviously the airport would also not be arbitable so it's a game changer because current board law doesn't prohibit um someone who um is disciplined it's not an unfair labor practice charge for an employer to if they refuse to sign an arbitration agreement they can be disciplined that would change that so it's a very i mean it's it's consistent with the fact that biden fired the top two attorneys at the lrv the general counsel associate general counsel replaced him with orr who is a a democrat and who is more a pro-union so i think that's if it passes it's more challenging for employers in the organized labor arena to have to deal with these issues here's the deal it has no chance of passing however it is a bit of a wish list it's not a bit of a wishlist i mean it's a wish list but what we're seeing and gordon alluded to it is through rulemaking and through decision making both the national labor relations board and the department of labor under the biden administration can chip away at let's say the joint employer test that was supposedly going to become a rule under the trump administration's department of labor there was this test established for who would be joint employers that's being pulled back okay gordon alluded to independent contractor versus employee and a pivot towards the abc test in the national labor relations board context and in the traditional labor context we're seeing that too now in the department of labor context that the department of labor has now pumped the brakes on on a rule which would have codified who is an independent contractor and as gordon alluded to it would come down to under the trump regime control would be a big would be one of the the big factors and another big factor would be the ability to make profit or lose on the business transaction so a traditional hourly employee has no ability to you know there's no profit or loss there they just get paid for each hour they work you're an independent contractor and you under price the job you're going to take a loss um we're going to get away from that test it looks like and maybe pivot into what we saw in california jersey the abc test which makes it more likely than not that individuals would be employees rather than independent contractors so you know again proact not too much in there to to make it all the way through there are bits and pieces from the pro act whether you have a unionized workforce or not that could impact your workplace um [Music] should we talk a little bit about the equality act briefly gordon what do you think sure why not oh man don't so latest update on the equality act the equality act is the law that would make it unlawful to discriminate against individuals in the workplace and in other settings based on their sexual orientation or gender identity that passed the house last night by a vote of 224 to 206 it now heads over to the senate where it is certain to be swallowed up in um a lot a lot of talk before we vote there's there's gonna be a lot of talking um about this and and the issue with the equality act um the critics issue with the equality act is not that we don't want to you know not that we want to mistreat people because of their sexual orientation or gender identity but the fact that the equality act specifically says in the act that if you have some sort of defense to discrimination based on the religious freedom restoration act basically a religious belief that you know supersedes treating someone fairly based on their lgbt status the equality taxes you can't do that anymore so the supreme court last year in bostock versus clayton county said that title vii of the civil rights act of 1964 because of sex the prohibition of discrimination because of sex includes sexual orientation and transgender status but the court left open whether there could be a religious exception to that the equality act would would swallow that up um so that's going to be the hold up that's why there's going to be a filibuster and ultimately i assume gordon would you agree some sort of compromise that comes through i think we're going to get something passed but a compromise yeah i think in a minimum um part of the intent of the bill too is to take the narrow category of gender identity and sexual orientation being because of sex only which is you know how they're getting it through title vii and expanding it to be outside of just sex alone i think the eeoc probably even has authority to to promulgate regulations that would address that so i i agree there's probably going to be some component of that that'll that'll make it through and meanwhile many states not all many already have laws on the books that prohibit discrimination in the workplace based on sexual orientation gender identity transgender status the whole yeah the like many localities have it as well i i practice law in philadelphia which is one of the most progressive cities in terms of employment laws we've had that for a while so just because the feds don't pass this and and make it a new statute whether it's the equality act or not we still have bostek which is the law of the land we still have state laws we still have local laws like gordon said the eeoc is going to continue to enforce title vii um as protecting against discrimination based on sexual orientation gender identity most states will do the same so it would be nice to have the equality act um to further cement no discrimination but you know we're gonna have to work through those those religious issues and that's not something i want to uh you know spend too much time on today because i know it's a bit of a touchy subject um there is one other piece of legislation one other piece of legislation i wanted to talk about that's recently pending and that's osha related that is the accurate workplace injury and illness record restoration act which in a nutshell would clarify that osha's six-month statute of limitations we'll be told if there is a continuing violation of the act that lasts longer than six months this is really nerdy lawyer stuff but for you folks it directs osha to clarify that it's record-keeping rule um there's a there's a continuing obligation to for employers to make and maintain accurate injury and illness records so i don't think it would change a whole lot um but uh it is out there and it just it's more of a i guess a clarifying statute than anything else but it's still in its early stages and it far be it far be it for me to say whether it will pass or not um gordon we talked a little bit about department of labor and what's going on there we alluded to it should we put a little bit more meat on the bones we should do that yeah uh do you want to pivot back into independent contractor and employee and abc tests and all that stuff i can sure so um the department of labor prior to the by the administration taking ffice had put out a proposed regulation that was going to revise and more favorably in my opinion address and kind of counter this abc test that i sort of described earlier um through um you know a uh public comment period etc the normal uh a process to to make it a rule um however um this was withdrawn and frozen essentially because some of the independent contractor status was in a group of opinion letters that were that were um uh issued before biden took office right at the end of trump's administration basically the department of labor came out and said they were these were issued prematurely because they're based on rules that have not gone into effect and so that it it's not possible to enforce and then um uh those were supposed to take back in march including a tipped employee rule um and so when biden literally the first day he was in office came in he said that we're going to create a moratorium or a freeze on the proposed and pending regulations to give what is going to be his new appointees opportunity to review the pending rules so those have been frozen but um you know there's still a push to eliminate this abc test because it is so difficult to deem somebody uh an independent contract it just greatly expands um the uh the employee classification and and it creates obviously a dynamic if you've got somebody who you're considering an independent contractor and you've misclassified them and they should have been considered an employee you've got you know liquidated damages attorneys fees other potential exposure as an employer for for that misclassification so we'll see what happens go ahead now as i say we'll see what happens because right now those are are kind of on ice uh you know it's it's just uh but there's been so much controversy over california in the abc test including whether or not it's retroactive because there's a whole uber and lyft have been fighting it for a long time as well that it's gotten into the federal arena and i think it's not a dead subject but as you said eric i don't think there's enough ability to run this through yeah this shift though towards the abc test and and hitting the brakes hard on the rule that the department of labor proposed to codify who is an independent contractor and you know as i talked about earlier control the ability to make profit or lose money this does not bode well for gigicon so if you are in the gig economy this is a strong sick strong smoke signal that your workers you know if the biden department of labor has its way will be treated as employees and not independent contracts if you have gig economy um if you have more you know folks that are more traditional you know stereotypical independent contractors if under the abc test they are actually employees the issue is gordon alluded to liquidated damages wages if these folks are working under 40 hours a week you're probably okay even if you've misclassified them at least from a wage an hour standpoint you might have tax issues but if these folks are working more than 40 hours in a work week and you're not paying them a salary because they're an independent contractor but all of a sudden they're employees that's where the the fair labor standards act issues really arise because then you're getting into overtime they're probably making minimum wage as it is enough to cover minimum wage but it's when they work more than 40 hours in a work week which creates the real the real problem for businesses if folks are misclassified as independent contractors and especially if you have a lot of these folks then all of a sudden you're getting into the class action status um one other thing before i talk a little we shift back to joint employer i want to talk a little bit more about that is is tipped workers and gordon mentioned that earlier so the department of labor had proposed a rule um which would clarify what employers to tradition have traditionally tipped workers can do um with them so if you run a restaurant for example under the proposed department of labor rule department of labor rule under the trump administration front of the house workers could could tip-pool with folks who are in the back of the house not your supervisors or managers or things like that but your your cooks your dishwashers they could participate in a tip for with respect to the tip credit right so tip credit you pay your your your servers you have two dollars and 13 cents an hour um and then as long as they make enough in tips to bridge the gap from that lower minimum wage up to seven dollars and 25 cents an hour the employer can get a credit for that what the department of labor said is that it used to be this 80 20 rule where someone who's tipped would have to spend at least 80 percent of their time doing traditionally tipped work and then 20 or less of their time doing non-tipped work think like wrapping the silverware or or you know busting tables or making the plates look pretty and stuff you know if you don't have an expo things like that so the the trump department of labor wanted to get rid of the 80 20 rule so maybe it was more like 75 25 and you could still get a tip credit or 70 you know 70 30. i think that's good that's not going to happen i think we're going to see more you know we're going to see that 80 20 rule um 19 comments that's it 19 comments came in during the comment period not all against the department of labor's proposed rule but that was enough plus president biden saying pump the brakes to put a hold on this new tip tip rule um tip worker rule and you know we'll see how it comes out but the progress that was made during the last term has been has been stunted uh gordon anything more on on joint employer in the department of labor and traditional wage and hour context you think folks need to hear about now well i think the the key is that if anyone is either a staffing firm or a peo or uses the services of those type of outsourced contingent workforce relationships you should expect that there is going to be a more liberal interpretation of what constitutes a joint employer it could be a joint it could be a sub and parent or like a general contractor and a bunch of subs at a construction site arrangement but i think brownie ferris um uh is is still something that's going to come back in a way that plaintiff's lawyers are going to use it to bring back in other employers and try to get another pocket but to make an argument for instance that if you're a small employer and you only have 10 employees you know but your purported joint employer has you know uh 50 plus but then they can they can bring in all the employment laws that only pertain to employers that are of that greater size than the small employer fmla yeah for instance fmla or it might be they're not subject to ade because they only have 10 instead of 20. but you know but to that end um it's going to be i think um a more liberal broad interpretation in some capacity whether it's done through rule whether it's done through opinion letter whether it's codified you're going to find this happening in some in some manner i believe and even the courts because now you've got buy and appointing uh vacancies and they're going to be more liberal judges so is it going to happen immediately no but this is on his list of items that were part of his platform uh when he was campaigning and so i think he's going to keep it as a a priority item it's just if he's not going to get the pro act passed i wonder how he's going to approach it from there jordan you mentioned peos for folks who have you know what is people folks this is one of this is eight for folks who do know what people are we're talking one of the peo experts in the country here um a little bit about peos and outsourced hr and how that how that works okay great so peo stands for professional employer organization and so in theory peos contract with companies typically a small business to outsource certain employer functions that every company has to uh perform so it's payroll it's hr it's uh risk management safety uh uh benefits etc and so the concept is that in 40 plus states a peo is considered a co-employer of employees that it contracts with through its client company and co-employment is not the same thing as joint employment because it's not a joint and several liability for all actions what a peo does is it takes certain employer functions and and retains responsibility for those some are reserved by the client some are shared responsibilities so it's a different model than a joint employer and and but a peo depending on the actions they take can be a joint employee to the extent it controls a circumstance that gave rise to say a discrimination claim you know if it said you have to fire this employee the client of the peo said okay and then they get sued for it someone could argue they were just employing that context but generally it's considered co-employment like i said it's codified in 40 plus states um and it's a way for small businesses to get a better suite of benefits typically you know because you're they're pulling all of the employees from all the client work we call it worksite employers or work sites and you aggregate and now you have like buying power for thousands of employees to get a great health plan for instance or stable workers comp or other benefits that come up so and that's essentially the concept what are some of the hr compliance pros and cons of using whether it's a peo or outsourced hr so it's like anything else you have to know who you're getting into business with um you're partnering and you're basically relying on a peo to provide the hr support although a good a good peo isn't going to make decisions it's going to make recommendations um and then leave it to the client to make the ultimate determination but um you know it it can be like i said a a tool for employee retention by offering a better benefit suite um they can help with compliance certainly um you know but it's not a law firm and they can't give legal advice and you know um in our multi-state you know more global universe and particularly with people being remote these days a lot of folks have um you know a multi-state operation where one person living at home is like taking new york new jersey connecticut the tri-state area it could be a new york-based company but they can have a employee living in connecticut and employ living in new jersey and now you need to know if that's where they're working you know how the laws work but you also need somebody you can handle and and and deal with all the compliance that comes up um so in a way a pdo could be a partner for some of that but again there's a there's a line because it's not a law firm and it's like you're hiring more sophisticated hr people i suppose and that's why it's called a professional employer they're supposed to be experts in the business of running a business right it doesn't matter whether you sell widgets or you provide a service fundamentally every company has to has to comply with wage narrow laws and hiring reporting and you know anything that deals with labor and that's what they step in and help with so with the right partner it can be a value-added uh service that you're gaining and it's a springboard too for making sure you don't make uh unwise employment decisions that can come back to cost you a bunch of money um folks let's do a little bit of a reset here about 12 30. uh i'm eric that's gord thanks for attending this is the employer handbook office zoom office hour we are talking about we talked about we talked about changes in the department of labor that are coming up we just talked about peos we've talked about some pending legislation and we want to get to your questions too so if you have them please put them in the down the the chat use the chat feature down there it's like the middle of your screen use that you don't have to send you can send a question to everyone you can send the question to just me doesn't matter we'll try and answer as many as we can because we're going to get to the q a pretty soon i always feel like we don't quite get to everything but maybe we'll start a little earlier today on the q a a pro tip if you send me your questions in advance we're more likely to get to your questions and i have a bunch of them so move to some q a for now uh and remember folks we're not giving legal advice here we're just you know we're just giving practical tips to questions that are hypothetical assume you're asking for a friend and we're not creating any attorney-client privilege and if you have anything specific go call your employment lawyer go pay for the legal advice don't try and get free non-legal advice on a zoom office hour that's crazy okay talking about outsourcing he owes someone asked me um what are this is a pretty broad question so we can't answer it all but but what are some legal issues involved with employing remote workers and especially remote workers out of state so i mean i'll lead off with that and the first thing that comes to my mind is is fair labor standards act and just wage an hour laws generally i know we've talked about this i've talked about this on the blog before and i know we've talked about this in some of the zoom office hours but it's worth repeating is making sure that your remote workers in whatever state they're working are at least getting the minimum wage if they're non-exempt making sure they're getting paid over time the right way and one of the ways to do that is making sure that you have good time tracking mechanisms in place so i just updated a handbook for a client and one of the first places i made a b line for in the handbook is how are the time how is our time tracking policy looking especially in light of covid and most everyone working remotely are do we have a good mechanism in place to capture all that time that employees not exempt especially are working remotely right do these employees have are they being guided by their managers as to what hours they should be working on at eight o'clock at night um or not right if it's one email here one email there not a big deal there's a de minimis exception to the fair labor standards act where you know a minute or two here and there is not going to add up um but otherwise that time can continue to accumulate and if it puts someone over 40 hours in a work week now we're talking about overtime and it might not just be over time at 7.25 cents an hour if someone's getting paid minimum wage um it's it's over time at the very least the minimum wage of whatever the state sets it and then if you're paying someone more than that obviously it's based off of their higher regular rate of pay and are you reminding employees that they shouldn't be working overtime without explicit direction or or permission authorization from from supervisor so that's one of the areas that i focus on is is fair labor standards act with remote workers working out of state uh gordon what are some of the other issues that you're thinking about when you're dealing with out-of-state remote workers so um issues such as workers comp um somebody can get injured at home but in a lot of states um you know even if the employer is located in a different state the injury occurs out of state the person has the uh election to pursue uh their workers comp claim in another state and there's a chance the employer's not insured there for instance because they didn't have a workforce there until coveted hit um another couple of concerns is somebody working out of their house um transmitting you know uh confidential proprietary sensitive information and the security of how they're doing so like if they're tapping into the company's uh resources or their databases and so forth there's a lack of control on the employer's part when somebody's using their personal computer on their at their home on their own internet um that that can create uh you know intellectual property and other concerns um you know and then then you have other um issues of uh you know the um accountability of the workers uh the um ability to perform the job in which they have all the tools and resources or does the employer have to buy them equipment uh you know because obviously the person has to be able to perform and then you have a ricky stuff like if the person wants paid time off uh like this was really a fikra issue that's no longer an issue at the moment but it could pop up again if they re uh in state it which is you know interim work versus leave you know some school districts still aren't fully back and you know in person and you know what do i do do i deduct time for the person to voting for personal matters like caring for a child um you know how do you know the comings and going so it's not just the time keeping but it's also the accountability of applying the proper leave and knowing what that would constitute and that's a difficult thing to to manage because there's nobody to supervise the person because i mean that those are the kind of things someone in the comments made a similar point gordon remote workers in paid leave states so the nightmare of dealing with unpaid fmla versus paid family leave in a particular state or jurisdiction so like new york right i think massachusetts now has has paid leave connecticut i believe i don't practice these states and just could be wrong about some of this stuff i know to you um so that's that's a that's a nightmarish issue uh for companies with employees that work well and there's another one eric that it's becoming more important which is restrictive covenant agreements so um not only you know are or non-competes under fire right now that's another initiative particularly for lower paid wage earners but you may have had employees sign your standard agreement which was when they were working at your headquarters again i use the tri-state area they're working headquarters in manhattan but now the the employees at home in new jersey and you're not applying the same law and there's a chance that now your agreement is unfortunate that's a good point um i want to overstep here i think what most employers do is they purport to apply the law of the state where headquarters is if you have people working remotely well the law of headquarters still applies and there's there's a sufficient usually a sufficient nexus between the law of headquarters and the interest in having one law apply to everyone rather than 25 different laws if you have people in 25 different states but if you have a business in let's say pennsylvania or headquarters is but you have a remote worker in california and that worker who has signed a non-compete which says that pennsylvania law is going to apply but they still work in california where non-competes are unlawful and they leave your company and go for go to a competitor right across the street in california good luck trying to enforce that non-compete with pennsylvania law in california against the california employee so you never know what a judge is going to do but i think in that scenario you're fighting an uphill battle so that's a great point with non-companies i agree with you i think the trend um is towards limiting and in some places outright banning non-competes i mean dc is the latest one district of columbia has banned non-competes many jurisdictions are at the very least looking to ban non-competes against low-wage workers i don't think anyone's really trying to ban non-competes against let's say someone who sells their business who had you know who who stays on in in an official role you don't want that person who has all this who had all the secret sauce who sells their business opening up a new business across the street and competing i don't think anything's ever going to touch that but in the traditional employer employee context the trend is to limit non-competes to a certain extent non-solicitations and to a much lesser extent if at all um non-disclosure of trade secrets and confidential information that's that's that proprietary stuff's pretty important um let's see we had a bunch of other questions um here's a good question it came in um especially in light of having remote workers covid how can a business satisfy its legal obligations by maintaining a workplace free from harassment so even remote workers can be harassed how do we maintain a workplace free from harassment while fostering an environment where employees feel safe speaking up and let me let me put a little nuance on that i remember this email because the person who wrote to me said employees and managers want to feel like they have a safe space to talk to one another to sort through issues without necessarily making it a big production that involves hr so is it possible gordon to have a safe space where in or an employee and a supervisor can work out a harassment issue without involving hr that be done it can be done i mean you know obviously the the immediate best practice that a company should employ is training in education and that's twofold it's employees having knowledge and understanding of what constitutes inappropriate conduct harassment etc and then having the means to avail themselves of some resource internally so how you report it how do what what will happen if i report it how is it going to be investigated and in a lot of cases unless that supervisor is the alleged harasser certainly it can be resolved through reporting to your direct supervisor um obviously in in more egregious cases or where it involves the supervisor the policy has to allow for flexibility and you'd have to go outside of that and inevitably it ends up in hr uh at a larger organization but you know i don't think the dynamic changes because harassment that is because of remote because harassment can emanate in so many ways including through non-physical contact it could be texted you could be subject to video you could subject to words none of which require you to be in my presence you know for you to be a harasser so you know i i mean i i think it's just a continued obligation as a court as a good corporate citizen for companies to step up and and make sure that these policies are in the forefront that everybody is clear on what's expected and have a zero tolerance policy for things that are just flat out inappropriate yeah the risk and i think what this was getting at was that confidant relationship i mean the risk of having the confidant is that if the manager can't work out the issue and resolve the issue for the employee right once let me take a step back once the once the manager knows the company is deemed to know that's how the law looks at that's how title seven looks at it for example so in a confidante situation if the manager can sort through the issue with the employee and the employee is satisfied with the result great no harm no foul but if the manager can't do it or isn't equipped to do it then if it the the harassment happens again the employer gets it will be deprived of an important defense that is right under fargo ellert which is these two supreme court cases the employer has to provide an avenue a mechanism for employees to complain right so you have a handbook with a anti-harassment policy and a complaint procedure that's part one in training that kind of stuff but part two is then taking steps that are reasonably designed to end the complaint of behavior and if you can't if in a confidant relationship if the manager doesn't take you know what an objective person would view as reasonable steps to end the complaint of behavior then you're deprived of that that important defense so personally i i i would shy away from the confidant relationship hopefully the workplace generally the culture is such that from the top all the way down we take anti-harassment very seriously we take diversity seriously we take inclusion equality seriously and that that becomes part of the fabric of business part of the fabric of the workforce so that when issues do arise people feel comfortable not just confiding in one person but going above and beyond that even if there needs to be an investigation but it's it it's a tough one that is that is a tough one i can royally answer but i i understand the practical implications of having a confidant well and and just to to kind of follow up on your point so i don't think in most cases it's wise to create a sort of colleague friend type of dynamic between a supervisor and support it because it does blur the line and as you said um if that supervisor handles it inappropriately it's imputed liability on the employer potentially because they're a member of management and if they don't handle it properly or they don't report it otherwise so i think those are things that should be handled carefully it's the same reason why a lot of companies have a nepotism policy because you don't want to erode the authority in the manner in which things are handled because of the relationships we were just talking a few minutes ago gordon about independent contractor and employee and someone asked me if an independent contractor signs a contract an independent contractor agreement with with the business does the length of the contract weigh one way or another does that like is does a longer contract make it more likely to be an independent contractor relationship should be a shorter contract what do you think so it's going to be one of many factors in my view i mean i'll say this there are certain there are statutes that say it must be a permanent and not temporary basis for instance so the delineation in some states like ohio has like a one-year threshold on what's considered permanent um you know but the danger is the flip side which is the longer somebody is doing what i consider saints same or similar uh type work as an in-house w-2 employee um but the delineation is i'm being they're you're paying them a gross amount and they're not eligible for benefits you get into what happened back in the late 90s with microsoft which is they become what we call perm attempts or they become essentially discriminated against because they're not offered the same similar benefits as a similar situation that's treated as an employee so it's kind of a balance but it's not going to be dispositive in of itself you made two great points then that i wanna i wanna emphasize here one is it could depend on the state in which the business relationship is formed so there is no federal law at this point that governs yes the fair labor standards act but not explicitly it's more through case law but more the states may govern who is an independent contractor and who is an employee that that that's one two it doesn't necessarily matter what the contract says i mean i could write independent contractor agreement and i could put a little paragraph in there that says the two sides agree that this is an independent contractor relationship not an employment relationship guess what if you control the individual you tell them when to work where to work they can't subcontract they can't hire assistants you give them the tools you tell them how to do the job they have no independent discretion no opportunity for profit or loss i don't care what's in the piece of paper that you guys have signed that's an employee so the um the document that's signed is is meaningful but it's not dispositive that that's that's an important point uh another question that came up well this this is this is a bit of a touchy one how involved should businesses get in police related matters between co-workers so for example you have a co-worker who stalks or threatens another co-worker outside of the workplace how involved should the business be in policing that that's a terrible pun well that's that's an ongoing debate because generally speaking employers have circumstances that come up frequently where your question is where is our purview with respect to what employees do on their own time and this comes up with um drug you know marijuana laws where it's a recreational permitted in the states it comes up where uh persons are engaging in political political activity or social causes things that are not directly work related but you know can an employer still discipline someone because for instance they saw they showed up at the capitol and engaged in that uh you know the the siege on the count on the capitol building um you know it's the same thing to what extent is it relevant to the employer is it work related do you get involved with law enforcement i mean obviously if law enforcement are turning to an employer for quote evidence on quote or for statements if there's some sort of need to maintain an alibi or for clarification of you know what was going on because if something occurred on their property or you know during the work hours involving say employees or invitees i mean there's an inevitable need to be involved but i don't think there's any bright line tests we could ever create and i think the circumstances are going to be fact specific and dictate but that's something i wrestle with is i don't know where the line is ever drawn on where it's a private matter versus you know i mean because if somebody's a victim of domestic abuse at home and they come to work and they're not i mean there are statutes in certain states like california they might have some some protections or employer it might have a duty um it again it just depends on i think on kind of what the the scenario is yeah like that that's a good it depends that's a good one um a couple other questions that came in we always get questions about vaccines um and someone asked you know what's the latest on um mandating covet 19 vaccines incentivizing cobit 19 vaccines nothing new other than the wellness regulations that the eeoc had put out there are toast they're done so it's a bit of it's been a while west i mean you can mandate covet 19 vaccinations subject to the duty to accommodate under title vii and the ada at least the eeoc says that your mileage may vary based on different states in which you conduct business um incentivizing vaccines that's where we get into a much murkier area because if some at one point the eeoc said oh you can give someone a water bottle or you can give them a low value gift card right um but beyond that i mean i think we can all i think we can generally agree that you can give people you know a couple hours paid time off to go get vaccinated i know new york is considering legislation to require that paid leave to get vaccinated um could you give someone paid time off the next day to recover from any side effects sure i don't i don't see any problem with that but but can you give someone a you know round-trip airfare to fiji in order to get vaccinated probably a problem uh that that may be a problem um what about this uh is there is there ever a situation important you can think of where it's okay for employer to reveal to a customer that an employee has or has not been vaccinated so i'm thinking like behavioral health we have someone who goes into someone else's home and treats let's say you know a child in the child's home can you can you think of a situation where it would be okay for the employer to reveal to the child's family yes the therapist has been vaccinated or hasn't been vaccinated i think that's a problem so i i think congenitalism would be you only would provide that information based on business necessity start with that um of course you know that the eeoc has come out and said a vaccination is not akin to a medical exam so it wouldn't violate hipaa for instance or wouldn't violate the ada to require the vaccination now the separate question you're asking is so divulging the fact that whether somebody did or did not receive the vaccination to an outside party and i can see it in the context of if your employees are required to be on site at somebody else's facility like your client and you'd have to provide proof they were vaccinated as part of the that in that company's requirement of whoever gets invited on premises that's an example um i could also understand it in terms of for an invitee um you know from an osha perspective or for a worker's comp perspective you don't want anybody claiming that they were subject to unsafe work conditions because someone was not vaccinated or the employer wasn't taking proper protocols and therefore they were exposed to covet because there's a lot of litigation even though there's a lot of states that are making immunity laws to protect businesses it's not it's not ironclad yet it's not a hundred percent so i mean i guess thos are the type of scenarios i can think of where it would be reasonable and business related but just sort of as a matter of fact like i wouldn't publish on your website hey eric and gordon got vaccinated but bob and tony didn't you know no i wouldn't do that right we've got about a minute left there are a bunch more questions i know we're not going to be able to get to but i do want to get i do want to get to to one more um and then we'll wrap it up and thanks for everyone for hanging in there we appreciate it we're getting to the top of the hour last question and this is definitely one of those your mileage will vary i'm going to say that out front someone asked can a company ever withhold pay from an employee that is commission based pay only so maybe you have a situation where you have yeah the employee broke an office computer and you want to offset you know take some money out of that person's paycheck um and it happens to be commission pay your mileage is definitely going to vary based on the state and how the state defines wages but in the states in which i can i practice law commissions are generally considered wages so there are certain things you can deduct from a paycheck you can detect fica you can deduct or for medical and health benefits if you're a union you can deduct certain union dues and things like that but when you make other sorts of deductions you're you might get yourself into trouble so it's going to depend upon the state but i'd be very cautious i would consult outside counsel before you make anything other than the standard deductions from an employee's paycheck mission right and i'm going to end it on that and i want to say i want to thank everyone for attending anyone i think gordon gordon berger thank you so much this was great the hour flew by anything you want to plug i if you haven't subscribed to the uh employer handbook you know it's any and or a regular attendee of these terrific webinars you ought to do so i mean i have my own and i have my own e-news list if you have uh eric's contact you're welcome to uh he'll pass on to me i'd be happy to add you all yeah and um if you go to fisherbroyles.fisher d-r-o-y-l-e-s dot com and search for gordon burger you'll find him there um you can search for him you see the spelling of his name on linkedin connect with him um he's great he doesn't bite he'll he's a great connection on linkedin he shares some good updates there too so thanks everyone for coming out appreciate you appreciate your time everyone stay safe stay healthy have a wonderful weekend