Employment Law Update

Michael Patrick O’Brien
June 10, 2010 | COMMENTS

There have been several recent interesting news items on federal employment law. First, both Houses of Congress are presently considering the proposed Employee Misclassification Act, which would amend the Fair Labor Standards Act (FLSA) and impose new obligations on employers to ensure that workers are not improperly misclassified as independent contractors.  Second, the United State Department of Labor (DOL) has issued its Spring 2010 Regulatory Agenda. The DOL Agenda outlines plans for a more aggressive regulatory and enforcement strategy for the nation's employment laws called the “Plan/Prevent/Protect” program. Part of the strategy may require employers to prepare and publish written plans and programs to ensure compliance with applicable laws. Such plans would require employers to have a plan to identify and remedy possible instances of noncompliance. For example, an employer plan could require that it search the workplace for safety hazards or have a written explanation justifying why a worker has been classified as an independent contractor. This approach would require employers to shift their focus to proactive compliance, rather than waiting until a problem arises to resolve it, and likely will require more self-audits and training. DOL is expected to flesh out more details of this possible new requirement in draft proposed regulations to be issued later this year.

Wrestling Sexual Harassment Lawyer Controversy 

Question: What do you get when you mix professional wrestling, sex, and lawyers?

Answer: Either a great distraction from work, a heck of a lawsuit, and/or a wonderful way to end a legal update, assuming it is all true, which it may not be. Various news services recently reported that a national wrestling entertainment company reportedly fired its chief lawyer for allegedly sexually harassing a woman in the company's sales department. The news accounts said he made unwanted advances on her at WrestleMania 26 (wait a minute, wasn't that part of the script/show?). But wait, that's not all—the news accounts also say the female sales employee was later fired after she was caught engaging in a sex act with a male subordinate at work. The company is now denying all these reports, saying only that it and its former lawyer have parted ways amicably. We may never get a good hold of or pin down the full story here. And you think you had to grapple with tough issues at work? So many possible puns—so little time!

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.