Common Pitfalls: The Devil Is In The Details; Regulatory Compliance

Here are 10 common or potential regulatory hurdles that may confound employers:

1. Under the Fair Labor Standards Act (FLSA), a meal period of less than 30 consecutive and uninterrupted minutes is work time unless “special conditions” exist. Be prepared to litigate hard to establish those special conditions. Bon appetit.

2. What constitutes “exercise of discretion and independent judgment” for the administrative exemption? The FLSA definition is as clearas mud.

3. The FLSA does not permit docking pay for exempt employees who are ready, willing and able to work when the employer shuts down, for example, for holidays or weather emergencies. Don’t jeopardize exemptstatus by treating these employees like nonexempts.

4. Expect more age discrimination claims as some Baby Boomers postpone retirement and others re-enter the workforce.

5. Under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission all but suggests that employers should assume that an employee has a disability, ensure nondiscrimination andmake accommodations where reasonable. Expect the EEOC–and probably many courts–to spend less time on threshold coverage questions.

6. When it comes to making hiring decisions based on criminal records, the EEOC prefers that employers make individual assessments. Theagency’s aggressive position will be tested in the courts.

7. Family and Medical Leave Act regulations allow employees to take extraordinarily short periods of leave. Unscheduled intermittent leave continues to flummox employers, but call-in policies can help.

8. Employers cross the border into problematic territory for not purging 1-9 forms when permitted, if such forms are not in compliance.

9. The Uniformed Services Employment and Reemployment Rights Act requires employers to work to re-employ service members. They have to track factors from compensation to promotions employees would have received had they not been on military leave.

10. Proposed rules for the Labor-Management Reporting and Disclosure Act would make those who advise employers “indirect persuaders.” That means an employer might have to report that a lawyer gives adviceon how to stay union-free. This arguably is a government intrusion into attorney-client privilege.

The author, a contributing editor of HR Magazine, is a partner with Duane Morris, a Philadelphia. based law firm.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.