702: Aaron Colby on The Top 20 Employee Legal Hotspots

Aaron Colby is a graduate of the University of Michigan and Southwestern University of Law. 

Today he’s practicing law at Davis Wright Tremaine LLP where he represents employers in single-plaintiff, multi-plaintiff, and class action disputes involving allegations of wrongful termination, discrimination, retaliation, harassment, and wage and hour issues such as overtime, meal and rest breaks, and off-the-clock work.

 Aaron defends organizations on public accommodations claims under the Americans with Disabilities Act and California Unruh Act, and claims of defamation, trademark, and other business-related matters.

Today we’re going to cover the "Top 20 Employee Legal Hotspots" restaurant owners and operators struggle with when it comes to compliance.

Show notes…

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In today's episode with Aaron Colby we will discuss:

• The 20 Employee Legal Hotspots

  • Hiring Decisions and Process 
  • 1. Use of Staffing Agencies and Joint Employment
    • Gig economy
    • Hiring vs. contracting
    • Unfair vs. against the law
    • Document when an employee does something wrong so you can prove it later on
  • 2. Independent Contractor (1099) v. Employee (W-2) Classification
    • The difference between independent contractors and employees - defined by the law
  • 3. Form I-9 Compliance
    • You need to make sure someone is legally allowed to work in the United States
    • Be vigilant
    • Ask relevant questions - know what they are
    • Get the I-9 BEFORE they start working
  • 4. Hiring - Background Checks and Criminal History Inquiries
    • Highly regulated
  • 5. Employee Arbitration and Class Action Waiver Agreements
    • Why do you need it?
    • You can make it mandatory
    • Is it a red flag if an employee doesn't want to sign it?
  • Wage and Hour
  • 6.  Non-exempt (Hourly) v. Exempt (Salary) Employee Classifications
    • Everyone is qualified for hourly but not salary
    • Some salary workers still require over-time
  • 7. Local Minimum Wage and Paid Sick Leave Regulations
    • City, county, state laws all apply - NOT only state
  • 8. Equal Pay
    • Everyone deserves the same pay for the same job
    • Some states don't allow employers to ask applicants past payment
  • 9. Timekeeping for Non-Exempt Employees
    • You MUST keep records for all work done
    • No insurance for time-keeping in business
    • Don't ignore it - address it
  • 10. Travel time
    • You MUST be paid for it
    • Delivery functions
  • 11. Meal and Rest Breaks
    • You MUST provide the opportunity to all employees
    • Police it vs. Provide it
    • Not just IF you took a break but also when and for how long and was there an interruption?
  • 12. Paystub and Payroll Practices
    • Federal is baseline - states individually break it down more specifically
    • Paystub requirements
  • 13. Commission Agreements and Bonus Plans
    • Overtime is much more complicated than "time and a half"
    • Anything outside of hourly is complicated and must be understood
  • 14. Expense Reimbursements
    • No federal laws - all state-by-state
    • Driving, getting, phones, insurance - if it's required for the job you must reimburse by state law
  • 15. Uniforms and Tools
    • If you require someone to wear something, you have to reimburse for it
  • 16. and 17. Tips and Service Charges
    • Voluntary
    • You must categorize them
    • Tips are state-by-state
    • Tips belong to the employee not the business
    • Service charge is demanded by the business
  • Harassment and Conduct
  • 18. Anti-Harassment Training and Policies
    • Major differences from every other work environment
    • Some states have harassment training requirements
  • Leave of Absence
  • 19. Leave of Absence
    • Different in restaurant industry than all other industries
    • You need to know what rights the employee has
    • Get a doctor's note
  • Termination Decisions
  • 20. Termination Decisions
    • All the categories where you're unable to fire someone
    • EVERYONE can be protected by discrimination laws
    • Separation agreements
    • Have policies in place before firing someone for a made-up policy

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Contact info:

Aaron Colby @ Davis Wright Tremaine LLP website

Thanks for listening!

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Huge thanks to Aaron Colby for joining me for another awesome episode. Until next time!

 

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