12 myths about independent contractor misclassification

Earlier this week, the Department of Labor published a new web guide on the issue of independent contractor misclassifications. The DOL’s tagline, “Misclassification Affects Everyone”, along with the comprehensive content contained therein, makes it clear that this issue remains hot for the agency. 

Contained the guide is a document entitled, “Myths About Misclassification”, listing 12 myths the DOL believes businesses commonly hold about independent contractors.

From the archives: Santa’s Employee Handbook

While I’d like to believe that every post I’ve ever written is indelibly embossed on the brain of every person that’s ever read my blog, I understand that readers come and go, and not everyone reads or recalls every post. As a result, sometimes it makes sense to dive into the archives to revisit a timely (and timeless) post of yesteryear.

So today I bring you, all the way from Dec. 11, 2014, Even Santa needs an employee handbook.

Take a gander at my recent cyber security webinar

Today I thought I try something different. Instead of reading what I have to say, I thought I’d give you a chance to listen to what I have to say.
The topic du jour — cyber security. Below is a video of a webinar I conducted last week, entitled, Everything Homebuilders Need to Know About Cyber Security in 30ish Minutes (but are afraid to ask). 
Even though the webinar was for the Home Builders Association of Greater Cleveland, most of the presentation is of general business interest, and of particular interest to HR folks. Cyber crime is one of, if not the, biggest threat to American businesses (see Yahoo, Target, Home Depot, the DNC…). If this issue is not squarely in the middle of your company’s radar, it should be for 2017.

WIRTW #442 (the “Good with God” edition)

Any week my favorite band—the Old 97’s—release new music is a week to be celebrated. (I know, Old 97’s music two Fridays in row. Deal with it or read something else today).

I’ll let Rolling Stone do the heavy lifting:

“I’m good with God. I wonder how she feels about me?” 

So ends the chorus of the Old 97’s’ “Good With God,” the lead single from the band’s 11th album, Graveyard Whistling. Due February 24th, the album offers up another boozy blast of Texas twang, train-beat percussion and guitar grit from Rhett Miller and company, who recorded its 11 songs in the same border-town studio that spawned the group’s major-label debut, Too Far to Care, two decades earlier. 

With their original four-piece lineup still intact, the Old 97’s welcome a new face into the fold with “Good With God,” whose titular omniscient character is played by Brandi Carlile. The two trade vocal duties throughout, with Carlile’s voice bathed in plenty of godly reverb. The result is an ominous, off-kilter duet between Miller and his maker, driven forward at highway speed by bandmates Philip Peeples, Murry Hammond, and Ken Bethea.

You can pre-order the new album, Graveyard Whistling, here (CD, digital, or four different colors of vinyl). Why wait for it’s official release on February 24? They are good musicians and better people that deserve for their music to be purchased, not streamed. And, look for the band to roll though your town in the Spring and Summer. They are a live act not to be missed.


Here’s what I read this week.

When a self-fondling supervisor earns the nickname “Mr. Bojangles,” it’s not going to end well

The EEOC reports that it has sued Goodwill Industries of the East Bay Area for sexual harassment and disability discrimination, following allegations made by disabled female nightshift janitors against their supervisor. The allegations are … disturbing:

Santa Claus and child labor laws

While I was watching Rudolph the Red Nosed Reindeer with my family something struck me. The elves working in Santa’s Workshop manufacturing the toys looked awfully young. Is it possible that the North Pole lacks child labor laws? Is this how Santa keeps his costs down? After all, he needs toys for more than half a billion children.

So, what are Ohio’s child labor laws?

Ohio set to maintain stable statewide minimum wage

A bill is on its way to Governor Kasich’s desk for signature that would prohibit any municipality or other political subdivision from establishing a minimum wage different from Ohio’s state minimum wage.

Sub. S.B. 331 [pdf] is a reaction to efforts of the “Fight for 15” movement to create piecemeal minimum wage increases city by city. Recall that earlier this year, Ohio’s attorney general issued an advisory opinion that a municipal ordinance may not require an employer to by a to pay its employees an hourly minimum wage rate that is in excess of the statewide hourly minimum wage rate,which is fixed by Ohio’s Constitution. This bill clears up an ambiguity over this issue.

Common sense (sort of) prevails in Ohio over gun-owner discrimination law

Last week, I reported on Ohio Senate Bill 199 / Sub. House Bill 48, which would have elevated “concealed handgun licensure” to a protected class under Ohio’s employment discrimination law, on par with race, color, religion, sex, military status, national origin, disability, age, and ancestry.

My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies:

WIRTW #441 (the “Burl Ives” edition)

Christmas carols and the Old 97’s are two things that make me very happy. Do you know what makes me happier? When the Old 97’s sing a Christmas carol.

For this week’s musical share, I bring you Rhett and the boys performing “A Holly Jolly Christmas.” If this doesn’t put you in the holiday mood, nothing will.

Click here to enjoy (sadly, the Austin American-Statesman doesn’t offer an option to embed the video).

Here’s what I read this week:

Ohio set to elevate gun ownership to a protected employment class #TerribleIdea

How do you get conservative lawmakers to agree to add a protected class to an employment discrimination law? Focus on protecting on gun ownership, apparently.

Believe it or not, the right to conceal carry is about to join race, sex, age, religion, national origin, and disability as a class against which employers cannot discriminate against their employees. Really. I’m not making this up. Senate Bill 199 and Sub. House Bill 48 would make it illegal for an employer to fire, refuse to hire or discriminate against someone who has a concealed-carry permit and keeps a gun within a vehicle that may be parked on the employer’s property.

7 tips to avoid the holiday party nightmare

’Tis the season for workplace holiday parties. It a time to reflect on the past year and celebrate all your organization has accomplished. It is also a time to avoid liability, hopefully. A lot can go wrong at a holiday party.

For example, consider Shiner v. State Univ. of N.Y. (W.D.N.Y. 11/2/12).

“Who needs the NLRB?”

Bloomberg BNA reporters Chris Opfer and Ben Penn asked this question in their weekly column of workplace musings: “Who needs the NLRB?” (a question I’ve asked myself more than once over the past eight years.)

Said Chris Opfer:

A $15 minimum wage is not without consequences #fightfor15

Donald Trump’s presidency sparks an interesting dichotomy—a Republican that rode into office on a wave of populism, including fiscal populism. Officially, the President-elect favors a higher minimum wage: “On the minimum wage, Mr. Trump has voiced support for raising it to $10 at the federal level, but believes states should set the minimum wage as appropriate for their state.” 

The “Fight for 15” movement is taking notice:

WIRTW #440 (the “muzak” edition)

Earlier this week I had a conference call with a client, an event which I repeat dozens of times per week. This particular client uses UberConnect as its conference call provider. I’ve never used UberConnect before, I know nothing about it, and I am certainly am not endorsing it. I am, however, endorsing its hold music. I was the first participant to dial in, and was prepared for a few moments of smooth jazz for my listening non-pleasure. Instead, I got this song, “I’m on Hold,” by Alex Cornell, one of the company’s founders, who wrote the song specifically for this purpose.



Kudos to any company that thinks outside the box and tries something different to make the mundane a little less so.

Here’s what I read the past two weeks:

Will the 7th Circuit ban LGBT employment discrimination?

Those of you who have been reading this blog for any length of time should know that I strongly believe that it is a national embarrassment that LGBT employment discrimination remains legal. Sure, the EEOC believes that Title VII’s prohibition against sex discrimination covers LGBT discrimination. But, despite what it may think, the EEOC does not make law, it merely enforces laws made by others. And, yes, some federal courts are starting to come around to believing that Title VII covers LGBT discrimination. Yet, until either Congress amends Title VII to expressly cover LGBT discrimination, or all federal courts conclude that Title VII already covers it, employers are compliance limbo.

Federal court denies injunction against new OSHA retaliation rules

Stan Musial, Wade Boggs, Rod Carew, Honus Wagner, Jimmie Foxx, Joe DiMaggio. Six of the greatest hitters in the history of baseball. And all ended the careers with batting averages under .333. If you’re a baseball player, one out of three places you among the all-time greats. If you’re the Department of Labor, however, it’s not so good.

The DOL has already taken two big losses this month (first its Persuader Rule, and then its Overtime Rule), so you’ll forgive it if it’s not overly jubilant about closing November with a much needed win. Yet, a win is a win, and at this point the DOL will take what it can get from federal judges in Texas.

“Perceived” national origin discrimination may not be illegal, but…

Lost in the maelstrom of the last week’s FLSA overtime rule injunction was the news that the EEOC issued updated enforcement guidance on national origin discrimination.

The guidance, which replaces the EEOC’s older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOC’s companion Q&A and small business fact sheet.

Let me point out, however, one area of contention—the issue of “perceived” national origin discrimination.

As sure as today is Cyber Monday, your employees are shopping from work

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $3.36 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

Consider these statistics, pulled from CareerBuilder’s 2016 Cyber Monday Survey:

With the new overtime rules DOA, what now for employers?

Yesterday I promised myself a blogging vacation until after the Thanksgiving holiday. And then Judge Amos L. Mazzant III dropped the biggest employment law story of the year by enjoining the DOL’s new overtime rules.

My 5th grade daughter just completed two long-term school projects—a comprehensive book report celebrating a Newbery Medal winner (she chose Shiloh), and a scientific study of a native Ohio bird (she chose the wild turkey). They were due within two days of each other, and she had several weeks to complete each. We sat down with her school planner and mapped out reasonable due dates for each piece of each project, so that she would not get slammed at the end. With her busy music schedule, this lesson in non-procrastination was vital to her completing the projects on time (which she did).

I hope she doesn’t read this post, because I don't want her ever to think procrastinators win. Nevertheless, employers who procrastinated in preparing for the new overtime rules are feeling pretty good right about now.

BREAKING: Federal judge grants nationwide preliminary injunction against FLSA overtime rule

Consider this the judicial equivalent of a Hail Mary, or full-court buzzer beater, or a bottom-of-the-9th, 2-out grand slam.

Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas has just issued a preliminary injunction enjoining the DOL’s impending December 1 change to the FLSA’s white-collar salary test.