As sexual misbehavior, assault, and harassment in the workplace are front-of-mind, here are some steps employers should consider taking today:

• Examine existing policies and procedures: Employers should look at the current policies they have in place and ensure they provide employees with multiple avenues to report potential harassment.
• Review current harassment training procedures: Ensure that current training is up-to-date, reflects all legal requirements and is consistent with the organization’s core values. Be sure also to review and confirm that all employees have been trained.
• Refresher Training: Conduct refresher training for current supervisory and non-supervisory personnel in regularly scheduled intervals. In today’s environment, where the national and local commentary is calling into question whether employees can trust employers to handle sensitive claims of inappropriate behavior, training of management-level employees who may be in a position to witness or hear about offending conduct will be more critical than ever. Likewise, any employees who are responsible for conducting sexual harassment investigations should receive additional training on how to conduct them effectively.

The heightened focus on sexual harassment may unearth new allegations within the workplace. In those instances, employers who become aware of new allegations of sexual harassment should immediately:

• Conduct prompt investigations: All allegations should be taken seriously and investigations should be handled by well-trained internal personnel or outside investigators (depending on the situation).
• Act decisively: Depending on the results of the investigation, decisive action should be taken to remediate the offending conduct if it is found to be substantiated. This may include training, disciplinary action, suspension, or termination, depending on the nature and severity of the conduct.
• Be prepared for litigation: Preserve documents created in the course of the investigation for use in any potential future litigation.

These are just some of the most critical things to remember as employers contend with a potential increase in allegations of sexual misconduct and harassment in the workplace. Post & Schell can assist employers with all of the above measures – from helping to craft policies and training materials and training supervisory and non-supervisory personnel, to investigating or supporting internal investigators as they conduct investigations and handling any resulting litigation. If you have questions or concerns, please reach out to any member of the Firm’s Employment & Employee Relations Practice Group in our:

Philadelphia Office:
Sidney R. Steinberg (ssteinberg@postschell.com)
Andrea M. Kirshenbaum (akirshenbaum@postschell.com)
A. James Johnston (ajohnston@postschell.com)
Kate A. Kleba (kkleba@postschell.com)

Harrisburg Office:
Sarah C. Yerger (syerger@postschell.com)

Pittsburgh Office:
David E. Renner (drenner@postschell.com)

Disclaimer: This EFlash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this EFlash without first seeking the advice of counsel.

The Form I-9 has been dubbed a “smart I-9” because it is a fillable PDF with various interactive features. The form has different drop down menus and question marks that, when the cursor hovers over them, provide guidance.

Notwithstanding the new smart I-9 features, the Form still can be completed in good old fashioned paper format. In fact, employers should be aware that once the form is completed (whether electronically, in paper form, or some combination of both), it must be printed and signed in paper format unless employers use an electronic I-9 vendor.

While the acceptable list of verification documents remain the same, some new requirements have been added. For example, users are required to enter N/A in any fields that previously could have been left blank. If no preparer or translator assists in the completion of the Form, employees now must affirmatively check a box indicating that no preparer or translator was used. Going forward, all required reverifications must use the new Form I-9 and be affixed to the original Form I-9.

Given that one of the expected areas of focus for the new Trump administration will be immigration, employers would be well-advised to consider conducting an I-9 self-audit to assess and remediate any violations. The potential uptick in worksite enforcement (which already has been on the rise over the last several years) coupled with the significant increase in potential fine amounts (employers found to have knowingly hired an unauthorized alien for employment in the United States can be fined from $530 to $21,563 for each unauthorized alien) means that I-9 compliance should be on employer radar screens.

For information on the new Form I-9 or on conducting an I-9 compliance audit, please contact Andrea M. Kirshenbaum at 215-587-1126, or akirshenbaum@postschell.com, or any member of Post & Schell’s Employment & Employee Relations Practice Group.

Disclaimer: This EFlash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this EFlash without first seeking the advice of counsel.

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For companies, owners and operators in the hospitality industry, the DOL’s aggressive enforcement efforts is not news. The industry has been a major target of the DOL over the last decade and part of the estimated $1 billion dollars that has been recovered for 1.2 million workers by the DOL’s Wage and Hour Division (WHD) since 2009.

What should concern the industry is that the DOL seems resolute to not just keep the pressure up on the minimum wage front, but actually increase it. In fact, the WHD has had the hospitality industry in its sites for some time, classifying it as a “high risk” industry. In response to the report, U.S. Secretary of Labor Thomas Perez remarked that, “to address the scale of this problem, we will redouble our enforcement efforts and partnerships to ensure workers take home the wages they earned and deserve.”

Regulatory and Legal Pressure

As if an invigorated and focused DOL was not motivation enough to treat the wage and hour risk seriously, hospitality industry players are facing significant financial risk from the private plaintiffs’ bar in the form of class and collective action lawsuits. Recent examples include multimillion dollar suits filed against a national restaurant chain and a franchise fast food chain, settlements paid to employees of a chain of New York restaurants and those of an Indianapolis hotel staffing company.

Private lawsuits filed under the FLSA are on pace to hit a new record high in 2014 and top 8,000 cases filed in federal court, easily topping the 7,764 FLSA cases filed in 2013. Nearly a decade ago the number of FLSA cases was half that.

Nationwide chains and franchise operations have proven particularly susceptible to class action risk as plaintiffs’ attorneys have sought to recruit and gather individuals for large classes. NERA Economic Consulting estimated that some 10 percent of all private wage and hour settlements in 2012 involved defendant companies in the food and food services industry alone.

Hospitality companies are particularly challenged by wage and hour issues, because they employ a large number of low wage workers in an industry that often has razor thin profit margins.

But minimum wage is just part of the story. Overall wage and hour violations present similar if not greater risks to the industry. This includes challenges to the use of tip credits (as well as its use with employees who perform tipped and non-tipped roles), allegations of “off-the-clock” work, and alleged failure to pay for training time.

Protecting the Business

Thankfully, hospitality owners and companies can take definite and immediate steps to mitigate against the risk that alleged wage and hour violations present. The DOL’s most recent study, and the agency’s redoubled enforcement efforts, reinforce the need for companies in the hospitality industry to evaluate their pay practices in an effort to mitigate against the risk of both regulatory and litigation threats.

Hospitality companies should consider a wage and hour audit to identify compliance challenges before they become fodder for the DOL or class and collective action litigation. Wage and hour audits can examine a wide array of pay practices, including worker classifications (exempt vs. non-exempt; independent contractor vs. employee; intern vs. employee; etc.), exposure from off-the-clock work, review of neutral pay practices, and address whether current policies and practices comply with federal, state and local legal frameworks. Depending on the outcome of these audits, companies can then take the steps necessary to address their specific risks.

As evidenced by the DOL’s most recent report, the DOL remains focused on alleged wage and hour violations in the hospitality industry. Whether a hotel, bar, restaurant or food service company, be sure that hospitality industry related pay practices and policies likely will continue to be scrutinized, not just by the DOL, but also your employees backed by plaintiffs’ law firms. Failure to address the inherent risks could spell headaches from both a regulatory and litigation standpoint, along with the attendant financial risk.