Employment Law for Brewery Managersand Distributors

Transcription

1 Employment Law for Brewery Managersand Distributors Melinda Sellers, Burr & Forman LLP Anda Lincoln, Funkwerks, Inc.

2 Employment Law for Brewery Managers National Labor Relations Act Worker's Compensation Issues Fair Labor Standards Act Issues Equal Employment Opportunity Issues OSHA Issues Federal and State Required Postings Protecting Your Company & Employee Handbooks

3 National Labor Relations Act Protects workers right to unionize and strike. Action by owners and supervisors may seem counterintuitive Tips: Do not: Threaten Discriminate in hiring Interrogate Promise Spy Call counsel

4 Workers Compensation State laws Administrative procedure for compensating workers injured on the job Required coverage varies by state, but generally all full-time employees covered Exclusions: owners Right to recover if the injury was accidental, and occurred on the job or in the course of employment.

5 Workers Compensation Employee must notify employer generally within 30 days of injury and, in some states, file a workers compensation claim with the appropriate state agency In some states the employer must keep job open for certain period of time (from 12 weeks to 3 years depending on the state) Vocational Rehabilitation in cases of permanent medical restrictions (to return employee back to suitable gainful employment) Could be tuition reimbursement or training for another job Retaliatory discharge is prohibited

6 Fair Labor Standards Act Entitles employees to minimum wage plus overtime unless a specific exemption applies. Employees who are properly classified as exempt are not eligible for overtime. Many job-specific exemptions exist, but the four primary exemptions are executive, administrative, professional, and outside salespersons.

7 Fair Labor Standards Act To satisfy exemptions, employees must meet job duties and salary basis tests. Salary basis test is not required for outside sales persons. Employees not exempt from overtime requirements must be paid overtime for all time worked over 40 in a workweek. Wage and hour cases are most popular employment litigation cases in current legal climate.

8 Fair Labor Standards Act Collective actions under the FLSA, which are similar to class actions, are filed in almost every suit in which an employee brings a claim under the FLSA. FLSA entitles Plaintiffs lawyers to attorney s fees for successfully litigating claims and also entitles Plaintiffs to extended statutes of limitations and liquidated damages in many cases.

9 Equal Employment Opportunity Issues Title VII The Civil Rights Act of 1964 Race Discrimination National Origin Sex Discrimination, Sexual Harassment and Pregnancy Discrimination Applies to employers with fifteen or more employees. Includes a provision against retaliation. Note: 42 USC 1981 prohibits discrimination based on race, and is applicable to all employers without regard to the number of employees.

10 Equal Employment Opportunity Issues Age Discrimination in Employment Act (ADEA) Prohibits discrimination because of age. Applies specifically and exclusively to employees 40 and over. Applies to employers with twenty or more employees. Contains a preclusion against retaliation similar to Title VII.

11 Equal Employment Opportunity Issues Americans with Disabilities Act Protects employees with disabilities from job discrimination as well as employees regarded as having disabilities and employees associated with persons with disabilities. Applies to employers with 15 or more employees Requires accommodations for employees with disabilities Prohibits retaliation for complaints or charges of disability discrimination

12 Equal Employment Opportunity Issues Harassment Offensive conduct sufficiently severe or pervasive to create a hostile work environment and based on a protected class. Maintain an effective anti-harassment policy. Treat all complaints seriously. Take action to alleviate any harassment that is revealed in an investigation. Carefully document the process and results from the investigation.

13 Equal Employment Opportunity Issues Family and Medical Leave Act (FMLA) Only applies to employers with fifty or more employees. Requires employers to provide unpaid leave for up to 12 workweeks (or 26, in some instances) for qualifying circumstances. Contains an extensive regulatory scheme. Precludes retaliation

14 Occupational Health and Safety Act (OSHA) General duty of the employer to furnish each employee with a place of employment free from recognized hazards causing or likely to cause death, or serious physical harm Specific duty of complying with safety and health standards promulgated under the OSHA act Prevents retaliatory discharge

15 OSHA Brewery Regulations include: injury reporting hazard communication program confined space ventilation requirements engineering controls (equipment and materials standards) entries and exits grain handling lockout/tagout procedures protective equipment machine guarding hearing protection Chemical Safety Standards specific guidelines for breweries

16 OSHA Record Keeping Injuries employers with 11 or more employees are required to keep occupational illness and injury records for each employee Material Safety Data Sheets and chemical inventories for all chemicals Training and post safety materials

17 Required Postings Wage & Hour Laws Minimum Wage Wage and Hour Division Family Medical Leave Act Rights Safety Standards Military Leave State specific required postings US Department of Labor keeps an updated list of required posters to be posted (

18 Protecting Your Company The Three P s of Protection Policies Principles Procedures

19 Employer Policies - Handbooks Handbooks are essential in today s legal environment. Handbooks confirm everyone is on the same page. Handbooks create consistency in the application of employment principles. Handbooks should be simple and concise, consistent, legally accurate, and avoid legalese.

20 Employee Handbooks 1. Disclaimer (not a contract, employment is still at will). 2. Equal Opportunity Statement 3. Anti-Harassment Policy 4. Timekeeping / Pay Issues 5. Rules of Conduct 6. Drug and Alcohol 7. Workplace Violence 8. Non-Solicitation 9. Family and Medical Leave 10. Military and Other Types of Leave

21 Employer Policies Hire supervisors who share your beliefs. Hire supervisors who are loyal. Make sure the people enforcing your rules understand and play by them. Conduct meetings and trainings with supervisors that stress basic legal knowledge. Do not differentiate rules based on a class of employees.

22 Employment Law for Brewery Managers Questions? Melinda Sellers Burr & Forman LLP (205) Anda Lincoln Funkwerks, Inc. (480)