Tag Archives: Shayna Balch


What employers need to know to prevent workplace violence

Author Shayna Balch is a partner at Fisher & Phillips LLP.

Author Shayna Balch is a partner at Fisher & Phillips LLP.

Stories of workplace violence — from Mesa to Paris and just about every city in between — seem to be never ending. Which begs the question, “How can employers work to keep their workplaces safe?” While there are no ironclad solutions for preventing all workplace violence, employers and employees alike can take a number of proactive measures to keep violence at bay.

1. Create a no-violence action plan

Having a preventative plan in place, while providing all of your employees with information on how to deal with workplace violence, is essential when trying to curb violent situations from arising. Work with your HR team to draft a detailed policy on how your company defines workplace violence and how employees should and should not react to all violent situations. It is also recommended that you hold a practice drill each quarter so that people know what to do and where to go in case of specific emergencies. Distributing a step-by-step process of what to do, should a violet situation erupt, at each telephone and public gathering place throughout the building is another preventative measure to consider.

2. Consider additional security measures

As we’ve continually seen, workplace violence can happen anywhere and at any time. Attacks can be inflicted by someone who works for your organization or by an outside perpetrator who is mentally ill or has an ax to grind. Whatever the case, implementing some additional security measures can work to solve a host of problems. Work with an outside security consultant to determine what preventative resources might work best for your organization. Everything from additional cameras and security guards to self-defense training can be considered.

3. Prohibit firearms

According to the Bureau of Labor Statistics, from 1992 to 2010, there were 13,827 reported workplace homicide victims in the United States, averaging more than 700 victims per year. Unfortunately, a number of those homicides were committed with a firearm. Under Arizona state law, an employer may not institute a policy that restricts employees from lawfully storing a firearm if the firearm is both 1) in the employee’s locked and privately owned motor vehicle or in a locked compartment on the person’s privately owned motorcycle and 2) not visible from the outside of the motor vehicle. In other words, you can prohibit individuals from bringing weapons into your place of work, but you cannot prevent employees from having a legally possessed firearm in their privately owned motor vehicle for purposes of storage and/or transportation. Create a policy that incorporates these laws but still works to keep guns away from your employees.

4. Help manage workplace stress

Workplace demands and societal pressures can often get the best of an employee’s psyche, occasionally resulting in feelings of negativity and employer mistrust. The good news is that if you can provide your employees with the resources to deal with stress, it may benefit your organization a great deal. It is also helpful to create an environment in which employees are able to take adequate breaks for eating and occasional socializing. Encourage stretch breaks or suggest that the next weekly meeting take place during a walk around the building as opposed to in the boardroom. Most importantly, let your employees know that managing stress is something that your company encourages and supports on a consistent basis.

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.”