Tag Archives: Nash

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7 Ogletree Deakins attorneys earn honor

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, announced today that seven attorneys from the firm’s Arizona offices were selected by their peers for inclusion in The Best Lawyers in America© 2015. The 2015 list was compiled based on an exhaustive peer-review survey that included more than 5.5 million detailed evaluations of lawyers by other lawyers.

The Arizona-based Ogletree Deakins attorneys appearing on the 2015 Best Lawyers in America© list include:

• Joseph T. Clees (Employment Law – Management, Labor Law – Management)
• L. Eric Dowell (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)
• Leah S. Freed (Litigation – Labor and Employment)
• Mark G. Kisicki (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)
• James K. Mackie (Employment Law – Management, Litigation – Labor and Employment)
• Tracy A. Miller (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)
• Tibor Nagy, Jr. (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)

Best Lawyers® has also named Kisicki as the 2015 Labor Law – Management “Lawyer of the Year” in Phoenix, and Nagy as the 2015 Litigation – Labor and Employment “Lawyer of the Year” in Tucson. The publication awards this honor to a single lawyer in each practice area and designated metropolitan area.

Firm-wide, 184 Ogletree Deakins attorneys were named to the Best Lawyers© list. Many earned recognition in multiple categories—144 were named under the Employment Law – Management category; 104 were named under the Labor Law – Management category; and 105 were named under the Litigation – Labor and Employment category.

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Ogletree Deakins Named a ‘Law Firm of the Year’

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, has been named “Law Firm of the Year” in two categories, Employment Law – Management and Labor Law – Management, in the 2014 edition of the U.S. News – Best Lawyers® “Best Law Firms” list. Only one law firm in each practice area receives the “Law Firm of the Year” honor. This is the third consecutive year that Ogletree Deakins has been named a “Law Firm of the Year.” It is also the second consecutive year that the firm has been named “Law Firm of the Year” in the Employment Law – Management category.

In Arizona, Ogletree Deakins’ offices in Phoenix and Tucson earned “First-Tier” rankings in three practice area categories: Employment Law – Management; Labor Law – Management; and Litigation – Labor & Employment. Nationally, the firm has been recognized with six “First-Tier” rankings: Employee Benefits (ERISA) Law; Employment Law – Management; Immigration Law; Labor Law – Management; Litigation – Labor & Employment; and Construction Law. A complete list of honorees is available today at http://bestlawfirms.usnews.com/.

“We are very excited to have received ‘Law Firm of the Year’ designations again this year,” said Kim Ebert, managing shareholder of Ogletree Deakins. “We will continue our focus on providing outstanding service and value to our clients.”

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Ogletree Deakins Named a 'Law Firm of the Year'

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, has been named “Law Firm of the Year” in two categories, Employment Law – Management and Labor Law – Management, in the 2014 edition of the U.S. News – Best Lawyers® “Best Law Firms” list. Only one law firm in each practice area receives the “Law Firm of the Year” honor. This is the third consecutive year that Ogletree Deakins has been named a “Law Firm of the Year.” It is also the second consecutive year that the firm has been named “Law Firm of the Year” in the Employment Law – Management category.

In Arizona, Ogletree Deakins’ offices in Phoenix and Tucson earned “First-Tier” rankings in three practice area categories: Employment Law – Management; Labor Law – Management; and Litigation – Labor & Employment. Nationally, the firm has been recognized with six “First-Tier” rankings: Employee Benefits (ERISA) Law; Employment Law – Management; Immigration Law; Labor Law – Management; Litigation – Labor & Employment; and Construction Law. A complete list of honorees is available today at http://bestlawfirms.usnews.com/.

“We are very excited to have received ‘Law Firm of the Year’ designations again this year,” said Kim Ebert, managing shareholder of Ogletree Deakins. “We will continue our focus on providing outstanding service and value to our clients.”

iPhone Business Apps

‘Bring Your Own Device’ trend a growing concern

The rise in popularity of smart phones, tablets and laptops has blurred the increasingly thin line between professional and personal life, between work time and personal time. But it’s is also creating security concerns for business owners who let their employees use those tech toys for work.

“Employers need to address the question of how to react to the inevitable or current use of personal or shared devices by their employees,” said Cheri Vandergrift, a staff attorney for Mountain States Employers Council, a leader in human resource and employment law services for the business community. “From IT issues to privacy and litigation concerns, companies that ignore the rising ‘Bring Your Own Device’ tide may find that BYOD brought nothing but disaster.”

While an AccelOps Cloud Security Survey of IT security personnel ranked BYOD as the top source for fear of incurring data loss, there are also concerns regarding employee privacy should litigation ensue and the question of using personal devices goes into the courtroom. The use of personal devices in the workplace stirs questions within the IT, legal and human resources departments of companies.

“Data access and ownership are significant legal issues that surround the BYOD trend,” said John Balitis, director at Fennemore Craig. “Employees accessing employer systems with personal devices can create major network security risks and employer IT staff accessing the devices to support them can infringe on employee privacy. Further, how to define who owns what information on the devices is challenging.”

Laurent Badoux, a shareholder in Greenberg Traurig’s Phoenix office, said there are a number of legal issues that could arise from the BYOD trend. Among them:

* Breach of confidentiality — especially with medical or financial data.
* Commercial espionage or unfair competition.
* Fair Labor Standards Act (FLSA) claims of unreported or unpaid time.
* Dispute as to ownership of data stored on personal devices.
* Claims of harassment, defamation, invasion of privacy, etc. from improper social media posting of workplace conduct.
* Negligence torts if an exployee tries to answer a work text or email while driving and causes an accident.

“The most glaring risk (an employer takes) is that sensitive confidential corporate data becomes compromised, either because an outsider is able to access that data through an employee’s device or to copy data stored on that device,” Badoux said. “When their sensitive data becomes compromised, companies face damage to the bottom lines and public image.”

According to Travis Williams, senior counsel at the Frutkin Law Firm, if a company believes information is jeopardized, or upon termination of an employee’s employment, the employer may have the right to seize the device for a short time to ensure proper protection or removal of company’s sensitive information.

“Employees need to understand that business information on their device is the property of the employer,” Williams said. “The employer has the right to protect the information. The protection may allow the employer to seize or force ‘wipe’ the device to ensure proper removal of the information.”

While there is no doubt that the BYOD trend has given tech-savvy employees the opportunity to create a more flexible schedule and therefore increase their productivity, experts said it’s imperative that companies find a balance between protecting sensitive work data, while still providing employees flexibility and independence.

“Have a policy that specifically addresses what employees can and cannot do with PEDs (personal electronic devices) used for work-related purposes and enforce that policy,” said Tibor Nagy, Jr., a shareholder at the Tucson office of Ogletree, Deakins, Nash, Smoak & Stewart. “Be sure the policy addresses what happens to employer data when the employee leaves employment.”

Experts said companies who worry about issues related to the BYOD trend should look to impose tighter security constraints, develop technology guidelines and policies or employ mobile-device management tools, services and systems.

“An employer absolutely should implement a BYOD policy if the employer allows or encourages employees to use personal devices for work,” Balitis said.

Badoux said an effective BYOD program should include:

1. Mandatory Mobile Device Management software
2. Clarification of expectations on ownership of data, privacy and access to dual-use devices.
3. “Acceptable Use” procedures harmonized with the employee handbook or agreement).
4. A well-crafted social media policy.

“Do not allow highly sensitive employer, personnel, health information, or customer data to be stored on an employee’s PED, unless you are certain that device will be used and protected to the same degree as an employer-owned device,” Nagy said. “Only allow PEDs that are ‘enterprise; enabled. Enterprise requirements include encryption of storage media; the ability to remotely wipe or clean a device; the ability to enforce password changes and password complexity; the ability to apply upgrades and patches; and the ability to revoke rights to data or corporate network access.”

Clees, Joe

Clees Among ‘Nation’s Most Powerful Attorneys’

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, announced that Joe Clees, a shareholder in the firm’s Phoenix office, has been named to Human Resource Executive magazine’s 2013 list of the “Nation’s Most Powerful Employment Attorneys.” This is the fifth consecutive year that he has been selected by clients and colleagues for inclusion in the Most Powerful list.

Attorneys were named to the list based on their excellence in guiding employers through today’s ever-intensifying legal landscape. To make the list, attorneys must receive glowing recommendations from corporate counsel who have benefitted from their services and would hire them again. Listed attorneys typically also must have practiced for more than 20 years and have amassed a number of accomplishments, including defending companies in headline-making cases and holding leadership positions within employment groups both in and outside of their firms.

Clees, who has practiced employment law for more than 25 years, represents employers throughout the United States. He also counsels clients on a wide array of state, federal, and tribal compliance laws. He has served as the chair of the Executive Committee of the State Bar of Arizona’s Employment and Labor Law section, as a member of the Board of Directors of the Arizona Affirmative Action Association and the Valley of the Sun Human Resource Association (VSHRA), and as employment law counsel to many industry and trade groups. Clees regularly speaks and trains on labor and employment law topics, both regionally and nationally.

Beyond the “Most Powerful Employment Attorney” award, Clees has been recognized as one of the Southwest Super Lawyers (2007-2013), including several years in the Top 50 Southwest Super Lawyers, and is regularly included in Chambers USA (2005-present). He has been included in Best Lawyers in America (2006-present), and this year, was named by Best Lawyers as the Phoenix “Employment Law – Management” Lawyer of the Year. Clees has also been singled out as one of the “The Legal 500.” Locally, Arizona Business Magazine rates him as one of the “Top Attorneys of Arizona,” and the Phoenix Business Journal designates him as a “Best of the Bar.”

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Language issues become workplace legal issues

Two Whole Foods grocery store employees in Albuquerque were recently suspended after getting in a dispute with their manager over speaking Spanish in the workplace.

That incident raises an employment law question that leaves many Arizona employers scratching their heads: Can employers require their employees to only speak English in the workplace?

The answer to that question, like the gray area that surrounds many legal questions, is “it depends.”

“While there is no specific law that requires a specific language in the workplace, Title VII of the Civil Rights Act and the Arizona Civil Rights Act prohibit discrimination based upon national origin and language is closely tied to national origin,” said Stephanie Quincy, a partner with Steptoe & Johnson LLP in Phoenix. “The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces Title VII and the Arizona Civil Rights Division of the Arizona Attorney General’s Office enforces the Arizona Civil Rights Act.  Both agencies are very concerned that employers will enact language requirements not because of business necessity, but as a way of excluding certain nationalities from the workplace. The Phoenix office of the EEOC sued a restaurant located on the Navajo Nation for enacting an English-only policy, resulting in years of protracted litigation for the employer.”

That restaurant is not alone. The EEOC recently released figures on what kinds of employment discrimination cases are being brought to the agency and complaints of discrimination based on national origin, including those involving perceived problems with language ability or accent, have increased  77 percent since 1997. The EEOC has suggested that it might be the increasing diversity of the American workforce, but civil rights advocates think it’s more likely due to a climate of fear, particularly in states like Arizona that have been enacting laws hostile to immigrants, both legal and undocumented.

“Generally speaking, English-only rules are not in and of themselves unlawful,” said John Balitis, a director at Fennemore Craig who practices in the labor and employment area. “They are permissible when needed to promote the safe and efficient operation of the employer’s business.”

According to Joseph T. Clees, shareholder, and Alexandra J. Gill, associate, of Ogletree, Deakins, Nash, Smoak & Stewart, there are some circumstances where an English-only rule may be necessary to further a safety, efficiency or other legitimate business concern. The EEOC has provided examples of such circumstances including, communication with customers, employees or supervisors who only speak English; emergency situations; cooperative work assignments where the English-only rule is necessary for efficiency purposes; and to assist supervisors with monitoring of performance.

“This is an extremely high standard and very difficult to meet,” Quincy said. “Furthermore, some of these categories would only permit an English-only rule where the business necessity is present and would not support a rule completely prohibiting non-English languages completely.”
This is where that gray area comes into play when it comes to language in the workplace, experts said.

“If the employer cannot demonstrate that (speaking English) is a ‘business necessity,’ it cannot justify such a rule and could be subject to legal action by any employee who is affected by the policy,” Quincy said. “A policy does not have to be a formal written policy. A rogue supervisor can create a policy by simply telling employees speaking Spanish to quit doing so. Such a policy can almost never be supported when enforced on employee breaks or when employees are having non-work related discussions.”

Because the EEOC has taken the position that English-only policies can violate Title VII, Clees and Gill said employers adopting these policies can face a range of penalties under Title VII if the policy is found to be discriminatory.

“An individual alleging a violation of Title VII may seek to recover damages including back pay, front pay, compensatory damages, punitive damages, and attorneys’ fees,” they said. “Individuals may also request injunctive relief.”

Because of the potential backplash, Clees said employers should carefully analyze their reasoning for instituting an English-only policy prior to doing so.

“Employers should consider whether the policy has important safety justifications and/or business justifications, and whether instituting the policy would be effective in advancing the desired business purpose,” he said. “Employers should also consider whether there are any alternatives to an English-only policy that would accomplish the same goals. If an employer decides to an English-only policy is necessary, it should ensure that employees are clearly informed of the policy, including when and where it applies.”

While there is no precise test for weighing or evaluating the business reasons for a language policy in the workplace, Quincy said the EEOC suggests considering:
· Evidence of safety justifications for the rule.
· Evidence of other business justifications for the rule, such as supervision or effective communication with customers.
· Likely effectiveness of the rule in carrying out obectives.
· English proficiency of workers affected by the rule.

“Employers should only (implemented policies that either completely or partially prohibit the use of any language other than English) if they can articulate a business necessity for such policies,” said Charitie L. Hartsig, an associate at Ryley Carlock & Applewhite. “They should also clearly inform employees of the circumstances under which they will be required to speak only English and the consequences of violating the policy. Limited English-only policies have been allowed under Title VII where the policies are in place to ensure clear communications regarding the performance of dangerous and safety-sensitive tasks. The EEOC presumes that an employer that completely prohibits employees from speaking their native language disadvantages the employee’s employment opportunities on the basis of national origin under Title VII. However, the Ninth Circuit rejected the EEOC’s per se rule. Nevertheless, Arizona employers should be cautious about implementing English-only policies and do so only when there is a business necessity for doing so.”

Despite an employer’s best business intentions, experts said instituting a language policy in the workplace is most likely a powderkeg ready to explode.
“The EEOC presumes that English-only rules applied at all times are discriminatory,” Balitis said. “Because the EEOC looks with disfavor on English-only rules, an employer may be forced to litigate even the most carefully crafted rule.”

Joe Clees, Tibor Nagy, Jr., and Mark Kisicki

Ogletree Deakins Attorneys Ranked in Chambers USA

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, announced that Joe Clees and Mark Kisicki, from the firm’s Phoenix office, and Tibor Nagy, Jr., from the firm’s Tucson office, have been included in the 2013 edition of Chambers USA, an annual ranking of law firms and lawyers comprising an extensive range of practice areas. Ogletree Deakins’ Arizona offices also earned a Band 1 ranking, the highest possible, in the Labor & Employment practice area. This is the fifth consecutive year that the Arizona offices have earned a Band 1 ranking. In total, the firm’s offices in 19 states and the District of Columbia along with 72 of the firm’s attorneys have been included in the 2013 edition.

Chambers USA is widely used by firms and businesses for referral purposes and many utilize the rankings and profiles of firms to find appropriate legal counsel. Firms and individuals are ranked in bands and the rankings are developed through research and thousands of in-depth interviews with clients and peers in order to assess their reputations and knowledge across the United States. The guide reflects a law firm’s high level of performance in key areas including technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other various qualities stated as most valued by the client.

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2013 Top Lawyers list: Employment and labor

Az Business magazine’s 2013 top lawyer list was created after the editorial department asked Arizona law firms to nominate their two best attorneys from 16 different categories for consideration. Those nominees were put on a ballot and were voted on by their peers in the legal community and the readers of Az Business magazine to determine the exclusive 2013 Az Business Magazine Top Lawyers list.

Adrian L. Barton
Sacks Tierney P.A.
480-425-2629
www.sackstierney.com
Barton has several labor-related publications, including “Employee Voting Rights: Arizona Employer Obligations,” “Social Networking and the Workplace,” and “Reducing the Risk of Wrongful Termination.”

James L. Blair
Renaud Cook Drury Mesaros, PA
602-256-3020
www.rcdmlaw.com
Blair is his firm’s chair of the Employment Law and Litigation Practice Group and was a contributor to the “Compendium of Significant Employment-Related Case Law and Statutes,” ALFA International, from 2003-2009.

Joseph T. Clees
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
602-778-3700
www.ogletreedeakins.com
Clees represents employers throughout the United States in discrimination and wrongful discharge cases and labor relations.

Scott Gibson
Davis Miles McGuire Gardner, PLL480-344-0918
www.davismiles.com
Over the years, Gibson has developed a reputation for his uncanny ability to quickly discern the most important issues in a case and to focus on ways to resolve rather than to expand litigation.

Donald Peder Johnsen
Gallagher & Kennedy, P.A.
602-530-8437
www.gknet.com
Johnsen practices exclusively in the area of employment and labor law and has been listed in “The Best Lawyers in America” from 2007-2013.

Pamela L. Kingsley
Tiffany & Bosco, P.A.
602-255-6015
www.tblaw.com
Kingsley’s counseling and advice often includes drafting and analyzing agreements for employment and severance, confidentiality, non-competition, and non-solicitation; policies for sexual harassment and oppressive or violent conduct, drug testing, safety, absences, and disabilities.

Michael D. Moberly
Ryley Carlock & Applewhite
602-440-4821
www.rcalaw.com
Moberly is an elected Fellow of the College of Labor and Employment Lawyers, a national organization established to recognize those attorneys who have distinguished themselves as leaders in the fields of labor and employment law.

Tibor Nagy, Jr.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
520-575-7442
www.ogletreedeakins.com
Nagy represents employers in all facets of labor and employment relations law, including discrimination and wrongful discharge cases, wage and hour law, employment contracts and manuals, and labor-management relations.

Stephanie Quincy
Steptoe & Johnson LLP
602-257-5230
www.steptoe.com
Quincy maintains a regular case load of employment litigation matters. Cases include civil rights (race, age, religion, gender and disability), wrongful termination, sexual harassment, defamation, and breach of contract claims.

Deanna Rader
Gordon Rees
602-794-2460
www.gordonrees.com
Rader has extensive experience advising public employers on constitutional matters, personnel issues, student rights, conflicts of interest, open meeting law, due process under the Individuals with Disabilities Education Act, and public records issues.

Lawrence J. Rosenfeld
Squire Sanders
602-528-4886
www.squiresanders.com
Rosenfeld has more than 35 years of experience in the area of employment law and is a fellow of the College of Labor and Employment Lawyers.

Debora Verdier
Sanders & Parks, P.C.
602-532-5760
www.sandersandparks.com
Verdier counsels companies with an eye toward preventing disputes and providing pre-litigation solutions and has experience in defending employers against EEOC charges and in litigating employment disputes.

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Ogletree Deakins Elects Shareholders

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, is pleased to announce that Christopher J. Meister and Nonnie L. Shivers, from the firm’s Phoenix office, have been elected to the position of shareholder.

Meister has extensive experience litigating matters involving trade secrets and confidential information in state and federal courts and administrative agencies throughout the United States. Meister regularly provides practical and strategic advice to clients regarding compliance with federal and state employment laws, employment policies, and employer best practices to avoid employment litigation. He also utilizes his corporate law experience and business acumen to regularly assist clients with complex employment and incentive agreements, noncompetition and nonsolicitation agreements, confidentiality agreements, and severance agreements. Meister earned his J.D. from the Wake Forest School of Law.

Shivers focuses her practice on defending employers against allegations of discrimination, sexual harassment and wrongful termination in state and federal court, as well as administrative forums. She also regularly provides advice and guidance to employers on reductions in force, disability issues and pre-litigation disciplinary matters. Shivers regularly speaks on current and emerging employment law topics and has published several scholarly articles focused on employment law. Prior to joining Ogletree Deakins, Shivers served as a law clerk to the Honorable Patricia K. Norris on the Arizona Court of Appeals. She earned her J.D. from the University of Arizona.

Nonexempt Vs. Exempt Employees

Arizona employers face an onslaught of wage and hour claims

For Shayna Balch, business is booming.

Since the start of 2012, the labor attorney at Fisher & Phillips in Phoenix is seeing — on average — one to three wage and hour cases filed each day. This is compared with one or two a month in previous years. Nationally, the number of new Fair Labor Standards Act suits lodged in federal courts between 2010 and 2011 jumped more than 15 percent, according to Federal Judicial Caseload Statistics.

Historically, Balch says wage and hour cases have not been an issue in Arizona. Because of that, employers are not prepared for the trend and she worries that this a ticking time bomb waiting to explode.

“There are multiple causes (for the increase)” says John Thompson, who handles wage-hour cases at Fisher & Phillips and is the editor of the firm’s Wage Hour Laws Blog.

“They include a greater familiarity of plaintiff’s lawyers with wage-hour laws and with the many areas in which non-compliance can occur; workers’ increasing awareness of wage-hour requirements — including via the Internet and the media; the growing number and complexity of the laws themselves;  and the stepped-up enforcement efforts of government officials.”

As the economy suffered and employers looked for ways to reduce labor costs, many of the cost-cutting measures conflicted with employment laws, according to Phoenix attorney John Doran of Sherman & Howard, and that has led to an avalanche of wage and hour claims. The number of collective actions has increased by more than 400 percent nationally in the last decade. In Arizona, the increase has been even more dramatic.

“In Arizona, there has been a sudden and dramatic increase in wage and hour collective and class actions,” Doran says. “This should be a source of serious concern for Arizona employers.”

It’s particularly stressful for employers desperately trying to recover from the recession.

“Employers have looked for every possible angle to reduce labor costs including overtime, and many of those angles simply do not jive with the wage and hour laws,” Doran says. “This has been especially true with employers trying to convert their employees into independent contractors, which is an extremely difficult, and often mishandled strategy that has the attention of the Department of Labor and the I.R.S.”

The Department of Labor has increased its strength thanks to a significant bump in funding under the Obama Administration, increasing both its enforcement and public awareness campaigns. More than 250 new investigators have been hired and the revitalized Wage & Hour Division launched its “We Can Help” campaign in 2010 to increase visibility and accessibility to workers.

“The DOL has also been more aggressive in pursuing employers, by expanding the scope of wage and hour investigations, issuing more administrative subpoenas, and imposing more penalties on employers,” says Phoenix attorney Tracy A. Miller, shareholder. Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

And the DOL is making it even easier for employees to build cases against their employers. Last year, the DOL developed a smartphone application that allowed employees to keep track of their own time and monitor employer compliance with certain wage and hour requirements. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Empowered with DOL-provided tools, “We are seeing more individuals who file suit on their own behalf,” says Stephanie Quincy, a partner in the labor and employment practice group for Steptoe & Johnson. “In Arizona, if wages are not paid when they are due or the wages are withheld without a good faith reason, the employee is entitled to three times the amount, as a punishment for the employer. We are seeing employees filing these suits themselves, without an attorney.”

So where are employers most susceptible?

“The biggest increase has been in lawsuits and investigations involving workers who claim to be misclassified as independent contractors,” Miller says. “Failing to pay workers for pre-shift and post-shift activities, such as computer boot-up and power-down, is also still a hot issue. Another common mistake that the DOL and private litigants are focusing on is the failure to include bonuses and commissions when calculating overtime. Wage payments during temporary company shut downs and furloughs has been a hot issue, although usually these issues are resolved without a lawsuit.  Cases involving the misuse of the tip credit or tip pools have also been on the rise.  Finally, we continue to see off-the-clock cases from employees who work remotely and/or routinely use smartphones.”

All of this is a conundrum for employers, considering the changing face of the economy and the workplace. The DOL is encouraging employers to comply with the Fair Labor Standards Act, which was enacted in 1938 when people worked at work. Now, thanks to technology, many of us can work anywhere and anytime.

To protect themselves, employers of all sizes should engage in serious introspection, Doran advises.

“An internal wage and hour audit, if not a must, is still the most valuable tool employers have to fend off such claims,” Doran says, “Annual or bi-annual audits would include analyzing job descriptions and comparing them with what is actually happening in the workplace day to day; examining timekeeper practices; ensuring that supervisors and managers are adequately and accurately carrying out otherwise compliant pay practices; and much, much more. These audits are best conducted through outside legal counsel in order to cloak them in attorney-client privilege.”

Quincy says employers should examine each employee and determine if the employee — not the position — is doing the type of work that is considered “exempt” or “non-exempt.” Non-exempt employees must be paid overtime. Employers should also carefully examine deductions from pay and time, including automatic deductions such as rest and meal breaks. Employers must train supervisors that any changes to hours worked must be explained to the employee and the employee must sign off on them.  The employer should hold supervisors accountable for encouraging — or pressuring — employees to work off the clock or not to accurately record their hours.

“Often businesses feel as though they must be in compliance because they have been paying workers in the same way for years without any problems,” Miller says. “Very few businesses are completely in compliance with the wage and hour laws, however, and an investigation or a lawsuit is an expensive way to learn about violations.  Businesses that proactively audit their pay practices end up saving a lot of money in the long run.”