You've entered into a contract, but the other party hasn't carried through on their promises. Failing to comply with the terms of a valid agreement is called "breach of contract." Contract breaches may be resolved through negotiation, alternative dispute resolution or courtroom litigation.
As we've discussed before on this blog, not every contract is enforceable. However, the purposes of this post, we'll assume that the contract is valid and not voidable.
The Trump administration promised to make federal agencies friendlier toward businesses and employers, and some progress has been made on that goal. Recently, the Department of Labor has taken steps to encourage assisted, voluntary compliance with wage and hour laws.
A panel at a recent American Bar Association conference identified two such areas -- DOL opinion letters and the PAID program -- along with another issue many employers should be aware of, H-1B visa compliance.
The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination in any aspect of employment against people 40 and older. When two firefighters from a small Arizona district sued for alleged age discrimination, however, the fire district claimed that the law only applied to organizations with at least 20 employees. The firefighters appealed all the way to the Supreme Court, which has just ruled in their favor.
The ruling means that all local, state and federal agencies, no matter how small, are covered by the ADEA and are prohibited from engaging in age discrimination.
If your company has been considering offering paid family and medical leave, now may be the time to act. According to the IRS, the Tax Cuts and Jobs Act established a tax credit for businesses that offer such leave under a compliant policy. Even better, that credit can be taken in 2018, as long as you put a compliant policy in place before Dec. 31 and make it retroactive.
The tax credit is between 12.5 and 25 percent of the wages paid during a qualifying leave. The policy must apply to all statutory employees employed at your company for a year or longer, whether full time or part time, and paid no more than a specified amount, which is currently $72,000. The leave itself must be taken for a purpose permitted by the federal Family and Medical Leave Act.
Whenever you enter into an agreement, it's important consider whether that agreement is enforceable in court. Otherwise, it's hardly worth the paper it's written on -- or isn't.
The first thing to consider is whether you have a valid contract. The basics of a valid contract include:
It has been over 50 years since the passage of Title VII of the Civil Rights Act of 1964, but some companies are still running into trouble. Employers are finding themselves liable for discrimination when they treat men and women differently in promotion decisions. Employers can limit their liability for discrimination by adopting objective standards that apply equally to each gender.
A couple of lawsuits highlighted recently by the Society for Human Resource Management give concrete examples of this problem. Both occurred at vehicle dealerships in another state and both were taken up by the Equal Employment Opportunity Commission.
If your organization uses non-compete clauses or agreements, you may have assumed that its best to draft them as broadly as possible in order to cover all situations. Unfortunately, many courts are increasingly scrutinizing these agreements and may find them unenforceable if they limit employees' employment prospects too much.
In Florida, for example, the statute authorizing noncompetes states that these agreements must be "reasonably necessary to protect the legitimate business interest." Last year, the Florida Supreme Court reaffirmed this reasonableness requirement and encouraged trial courts to actively assess the reasonableness of noncompetes on a case-by-case basis.
In 2017, employee turnover within the restaurant industry was 73 percent. At the Hot Chicken Takeover chain in Columbus, Ohio, that rate is only 39 percent. The difference could be that Hot Chicken Takeover earns employees' loyalty by giving people with complicated work histories or criminal records a real chance at getting a job. The chain is part of the fair chance hiring movement.
In addition to asking about traditional hiring criteria like work history, Hot Chicken Takeover's fair chance hiring process includes questions meant to gauge the applicant's work readiness and culture fit. Once a new person is hired, Hot Chicken Takeover offers a variety of benefits meant to help people thrive. In addition to the professional development and transit benefits many employers offer, the company provides interest-free cash advances, flexible scheduling, free meals and even counseling.
If your company works with independent contractors, you may be concerned about the recent litigation surrounding the issue. With the "gig economy" a growing factor in the American economy, workers have been asking courts to rule that they are legally employees rather than contractors.
Employees are entitled to many workplace-based benefits and protections such as the minimum wage, the overtime premium, workers' compensation, unemployment insurance, employer-paid payroll taxes and employer-sponsored benefits, among other things.
The state of Massachusetts has just passed a bill that would require companies to provide compensation to former employees if they decide to enforce noncompete agreements. The compensation -- either half the employee's salary or "mutually agreed-upon consideration" -- would be required for up to a year after the employee leaves the company.
This is referred to as "garden leave," after a British colloquialism for being paid to tend to one's garden.
Carmagnola & Ritardi, LLC
60 Washington St.
Suite 3
Morristown,
NJ
07960
Phone:
973-267-4445
Fax:
973-267-4456
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