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ICYMI: Our Social Media Posts This Week – Oct. 28 - Nov. 3, 2018

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 10/28/18 we learned about the new FCRA rule/form for background checks for employment. It came down from the CFPB, the agency that administers and oversees the FCRA. The new form was effective 9/21/18 so make sure you have it. The post rmeinds employers of the timing of steps relative to a background check for employment purposes. The post also has a link to the new form. Use it.

TAKEAWAY:  If you are going to be in business, you need to do it legally – so ensure you follow procedures and use required forms and notices.

The post on Monday 10/29/18 asked if during bankruptcy: Can the Association’s lien for unpaid assessments be stripped off? I suggested you contact me for help when a bankruptcy occurs. The case in the post came out of New Jersey so under the same facts, a Pennsylvania court might not decide it the same way, but often NJ and PA courts see eye to eye. So what happened? The Association was owed $9,000 for filed liens and another $4,700 at the time the owner filed for bankruptcy protection. Monthly dues were $250. The unit had no equity over the first mortgage. The post explains what the court decided and why.

TAKEAWAY: Make sure you protect your Association's interests and act as soon as it is worth it to ensure that more money is not thrown away on the unit in arrears. Get help from an attorney familiar with both community law and bankruptcy law.

In the post on Tuesday 10/30/18 we read about a $3M jury award for gender discrimination. We suggested you make sure you have the facts to back up your defense! This case occurred in federal court in Pittsburgh, so pay attention. A female scientist who worked at PPG for 23 years and then was fired sued, alleging gender discrimination. The facts upon which she made her allegation are in the post, including comments made by her supervisor. PPG disagreed; its asserted defense is in the post.

TAKEAWAY: Whichever side of a case you are on, make sure you have the facts to back up your assertions – it could get quite expensive otherwise.

The post on Wednesday 10/31/18 was a holiday reminder for a Happy Halloween and a reminder: Don't let holiday antics or costumes interfere with your business or policies. There are ways that employees can have fun but still follow policies for attire and behavior.

TAKEAWAY: You have policies in place and expect employees to abide by them – holidays are no exception. Enforce evenly.

The post on Thursday 11/1/18 was about yet another reason to properly classify employees and independent contractors - tax implications to you and them! You already know that proper classification is imperative, but the 2017 Tax Act provides even more impetus. There is a new Internal Revenue Code section providing a 20% tax deduction for certain independent contractors – see the post for details. That might prove to be so beneficial that someone wants to move from being an employee to take contractor status – but the IRS will require proof as noted in the post. The old test used by the IRS for contractor status was replaced in 2018 with a much shorter, 3- factor test; see the post. If someone is classified as a contractor but determined to be an employee, it can be quite expensive for the employer due to taxes and other items that must be (re)paid.  

TAKEAWAY: Make sure to properly classify all workers – don't just go along with their wishes in light of the new tax provision. It will sting you as badly, or worse, than it will sting them, so stay on this side of legal.

The post on Friday 11/2/18 told us about 6 new opinion letters from DOL on the FMLA and FLSA - be aware! They came from the Wage and Hour Division and follow earlier ones issued in April 2018. Two of the letters have to do with the FMLA; one deals with whether employees who request time off to donate an organ are eligible for FMLA leave even if in good health prior to the donation. The second FMLA opinion letter is described in the post. There were also 4 letters dealing with the FLSA. One was about the application of the commissioned sales employee overtime exemption; the 3 others are described in the post.

TAKEAWAY: You need to know not only the law, but any exceptions to it and interpretations by any agency overseeing enforcement of the law. Consult a lawyer for assistance when needed.

Finally, in the post yesterday 11/3/18 we learned that DOL ruled that time spent on wellness activities is not compensable. Employers can breathe a sigh of relief! You know all of those things that you've asked employees to do to keep insurance premiums down? Well, the question was whether or not you had to pay for the time they spent on all of those activities (since they did benefit you). DOL's Wage and Hour Division recently issued an opinion letter on that question (and others noted in our post 11/2/18). DOL's opinion letter was specific as to why the time spent on those wellness activities is not compensable – see the post – and examples of the types of wellness activities it covers.

TAKEAWAY: when employees act in the interest of their employer, they are due compensation – but wellness activities may be an exception if they meet DOL's guidelines. Consult legal counsel to make sure you know whether or not to pay for that time.

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