<em>Legally</em> <strong>Speaking</strong>


Latest developments in human resources merit attention
Jim Juliano - Spring 2011

Several new trends and changes in federal regulations will likely affect your team's human resources department. If you've overlooked any of these developments, you might want to review them and take appropriate steps, such as updating your employee manual.

For example, federal regulations have changed for certain aspects of the Fair Labor Standards Act (FLSA), health care reform and the Americans with Disabilities Act (ADA). Trends in unemployment law and social media also will affect how you run your front office.

FLSA—wage and hour issues

The U.S. Department of Labor hired a crew of additional compliance officers in 2010 and published its priority to enforce the FLSA.

Of special concern is the wage and hour set of issues, including classification of employees and employees working off-the-clock. Your HR officer should consider an audit or a review of job classifications that are on the border between exempt (no overtime) and nonexempt (pay overtime) classifications. It is important that the team pays overtime to nonexempt front office employees who work overtime. And keep in mind that a salaried employee could also be nonexempt, and therefore be owed overtime.

Another off-the-clock issue involves nonexempt employees who are logging time during lunch hours, breaks or even during evenings at home when the team assumes that they are off work.

The employee manual should contain a clear statement that the team will not pay overtime for work outside the normal work hours unless a supervisor approves the overtime work in writing, in advance.

Americans with Disabilities Act

The 2008 amendment to the ADA greatly expanded the coverage and rights of disabled individuals, but the regulations putting it into place have been pending. The final regulations are expected to be adopted in 2011.

In the context of HR, the amendment's expansion of the definition of a disability by itself creates complications. Once again, a careful review of the employee manual might disclose obsolete language that will create legal problems in the event of a contradiction in interpretation.

Health care reform

(An overview of the changes in health care is the topic of an accompanying article in this issue of Legally Speaking. Read the article.)

We recommend that teams make health insurance changes only after conducting a thorough analysis of the new law (formally known as the Patient Protection and Affordable Care Act of 2010) and its effect upon health insurance.

Some employers are considering elimination of health care coverage as a benefit of employment. Although the new act may permit this move, it may create problems down the road, especially if the team wants to reinstate health coverage.

Unemployment compensation

As layoffs hopefully decrease due to an improved economy, the focus may turn back to for-cause termination of employment.

A recent study shows that employees who have legal counsel recover unemployment benefits at about the same rate as employees who do not have legal counsel. In other words, the recovery of unemployment benefits does not necessarily depend upon how strong might be the legal representation of the employee.

Employers should review discipline and termination procedures to update any due process steps. This should strengthen the likelihood of a favorable ruling in the event of litigation over cause or no-cause.

Social media

The employee manual or a separate usage policy for work computers should explain that an employee has every right to use social media for personal purposes on personal computers or other devices. However, the policy should prohibit the use of company equipment for personal social media.

As important, the policy should lay out clear guidelines that prohibit disparagement of the employer that will be harmful to business, while preserving First Amendment free speech that protects a certain level of criticism. These are complicated areas and should include legal consultation.

To summarize, personnel and benefits laws and regulations, as well as the environment in which a business or organization operates, require attention. They can change frequently, and in some cases not keeping up with the changes can cause a burden on a team's resources in both time and money.


This website contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.

Copyright 2011 by L. James Juliano Jr.
Legally Speaking® is a registered trademark of the law practice of L. James Juliano Jr.