Workplace Compliance: How to Protect Your Business from Legal Risk

The FLSA requires employers to pay non-exempt employees the federal minimum wage and overtime pay at one and one-half times the regular rate of pay for all hours worked over forty in a workweek, and an employee who is misclassified as exempt can recover back wages, an equal amount in liquidated damages, and attorney's fees in a private lawsuit or DOL investigation. The FLSA's primary exemptions require that the employee be paid a salary of at least eight hundred forty four dollars per week and satisfy a duties test demonstrating the employee performs executive, administrative, or professional work, and an employer that relies on an inaccurate classification faces back pay liability for the preceding two years, or three years if the violation is willful.

Wage and hour and employee misclassification counsel can advise on the specific wage and hour classification and FLSA compliance obligations and develop the exempt and non-exempt classification and wage and hour compliance strategy.

The FMLA entitles eligible employees to twelve weeks of unpaid, job-protected leave per year for qualifying family and medical reasons, and an employer that fails to notify an employee of her FMLA rights, denies a qualifying request for leave, or retaliates against an employee for exercising FMLA rights is liable for actual damages, interest, and attorney's fees. ERISA imposes fiduciary obligations on employers who administer employee benefit plans, requires employers to provide plan participants with accurate and timely summary plan descriptions, and subjects employers who breach their fiduciary duties to civil liability and DOL enforcement.

Labor and employee rights and labor laws counsel can advise on the specific workplace compliance legal framework and develop the comprehensive federal and state labor law compliance and audit defense strategy.

FMLA and employee benefits counsel can advise on the specific FMLA and ERISA compliance obligations and benefit plan requirements and develop the FMLA leave management and ERISA benefit plan compliance strategy.

OSHA's General Duty Clause requires employers to provide each employee with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm, and OSHA's industry-specific standards impose additional requirements for hazard communication, lockout/tagout, personal protective equipment, confined space entry, and a wide range of other specific hazards. An employer that receives a notice of an OSHA inspection should immediately notify its legal counsel, preserve all relevant documents, and designate a management representative to accompany the OSHA compliance officer, because statements made by employees during the inspection can be used by OSHA to support citations.

OSHA compliance and occupational safety counsel can advise on the specific OSHA standard compliance and hazard identification requirements and develop the OSHA inspection defense and workplace safety compliance strategy.

Employers that use artificial intelligence tools in hiring, promotion, performance management, or termination decisions face increasing regulatory scrutiny from the EEOC, the FTC, and state and local agencies that have issued guidance identifying the ways that AI-driven employment decisions can produce disparate impact discrimination against members of protected classes. Numerous states and municipalities have enacted pay transparency laws that require employers to include salary ranges in job postings and disclose pay ranges to current employees on request, and employers operating in multiple jurisdictions must track and satisfy a patchwork of state and local pay transparency requirements.

Workplace discrimination and equal employment opportunity counsel can advise on the specific AI in hiring, pay transparency, and disparate impact risks and develop the AI employment compliance and disparate impact defense strategy.

At-will employment is modified by a growing body of state and local law that restricts an employer's ability to terminate employees for reasons including employee exercise of legal rights, participation in protected activity, and a wide range of other protected categories that vary by jurisdiction, and an employer that terminates an employee in violation of a state or local restriction faces liability for wrongful termination. The ADA's reasonable accommodation requirement obligates an employer to engage in an interactive process with an employee who requests an accommodation for a disability, to provide an effective accommodation that does not impose an undue hardship, and to document the interactive process and accommodation decision in sufficient detail.

Civil rights and equal opportunity employment and workplace retaliation counsel can advise on the specific at-will employment limits and reasonable accommodation obligations and develop the at-will employment and reasonable accommodation compliance strategy.

An employee handbook that accurately describes the company's policies on at-will employment, equal employment opportunity, anti-harassment, complaint procedures, leave, safety, and technology use establishes the standards against which the employer's conduct will be measured if an employee claim arises and provides evidence that employees were informed of applicable rules and procedures. An employer that discovers potential misconduct through its internal complaint procedure should retain experienced outside legal counsel to direct the investigation, conduct witness interviews with appropriate privilege protections in place, preserve all relevant documents, and document the investigation findings.

Employee misconduct and internal investigation services counsel can advise on the specific employee handbook, policy review, and internal investigation requirements and develop the handbook drafting, policy review, and misconduct investigation strategy.

Department of Labor wage and hour investigations can be triggered by a single employee complaint, a wage payment lawsuit, or a DOL targeted enforcement initiative, and an employer that is the subject of a DOL investigation should retain experienced legal counsel immediately to manage the response, assess the scope of the employer's potential back pay liability, and negotiate with DOL investigators to limit the investigation's scope. A proactive compliance audit that reviews the employer's exempt classification determinations, overtime calculations, and pay stub and record-keeping practices can identify and correct compliance deficiencies before they are discovered by government investigators.

Wrongful termination and wrongful termination lawsuit counsel can advise on the specific labor audit, regulatory defense, and litigation risk management requirements and develop the labor audit defense and wrongful termination risk management strategy.