Retaliatory Firing: Don’t Fire Whistleblowers, No Ifs, Ands, or Buts

Wednesday, April 24th, 2013

Employees have a right to report alleged non-compliance to federal and state agencies without fear of retaliatory firing or demotion- no ifs, ands, or buts. A violation of an employee’s protected conduct of reporting potentially illegal or dangerous circumstances, the Department of Labor has made it very clear that retaliatory firing will not be tolerated.

A historical case of retaliatory firing landed one company with a $110,000 back wage payment, as well as fines imposed by OSHA, After an employee reported mechanical issues with his truck and was fired the next day, United Auto Recovery was required to rehire the employee, pay back wages and punitive damages, and was required increase trainings on employee rights, as well as to improve the workplace by posting employee rights posters.

Traditionally OSHA and the EEOC (Equal Employment Opportunity Commission) have been the primary investigators of complaints of retaliatory firing. Other agencies, including the SEC and FTC, have become involved with strong whistleblower protections under Sarbanes Oxley for employees of public companies; new laws including The Patient Protection and Affordable Care Act of 2009, which creates whistleblower protections for employees in the health care sector; and The Dodd-Frank Wall Street Reform and Consumer Protection Act, which provides expansive protection to whistleblowers in the financial services industries.

The bottom line is that you can’t afford to fire a whistleblower unless you have absolute, irrefutable evidence that the firing had nothing to do with the report of fraud, complaint of discrimination, or safety issues.

Seven States Raise Minimum Wage on Jan. 1, 2013

Thursday, November 8th, 2012

The 2013 federal minimum wage will remain the same at $7.25 per hour for non-tipped employees and $2.13 per hour for tipped employees. However, the following states will raise minimum wages on January 1, 2013:






Rhode Island



The Colorado Department of Labor and Employment has proposed a minimum wage increase.

Vermont and Missouri will have wage increases based on increases in the cost of living, but the states have yet to announce details.


Affected employers in these states will need to update workplace wage and hour posters. The poster requirement applies to most dealerships and service centers, even if the business does not actually employ workers at minimum wage rates.

How Old Are Your Labor Law Posters?

Monday, September 10th, 2012
KPA OSHA Store CO Labor Law Posters

Keep your labor law postings current with KPA’s new Employment and Labor Poster Store.

Have you ever paused in your break room and tried to read the labor law posters hanging on the wall? Perhaps you chuckled when you noticed the ancient soup stains, the faded letters … and the copyright date of 2002.

Maybe labor laws have changed since then?

HR professionals are pretty busy. Updating the state and federal labor law posters is one of the many compliance tasks they need to get done as quickly as possible.

This is why KPA has launched an easy-to-use online store with state and federal posters for the entire U.S. You can:

  • Buy posters in English, Spanish or bilingual (English and Spanish) formats.
  • Subscribe to annual updates (optional). When revisions happen, updated poster information will be sent to you via email, or replacement posters will be automatically shipped to your site.
  • Receive a separate NLRA poster with the standard state and federal poster combination.
  • Sign up for store coupons and promotions.

While a 10-year-old poster covered with Joey’s goulash accident may seem a tad funny when you’re sipping your morning coffee, it can trigger a hefty fine from the Department of Labor. Businesses are required to feature federal and state labor law postings in common areas frequented by employees and applicants.

We hope you’ll enjoy our new Employment and Labor Poster Store. If you have any questions, call one of our labor law poster experts at 1 (888) 369-9013.

Comp Time Isn’t a Gift

Wednesday, July 25th, 2012

All too often I have heard an employer say to employees “we offer comp time”.  Unfortunately private sector employer cannot substitute “comp time” for overtime or in lieu of wages. This is the law despite numerous studies that show employees would welcome the idea and since the 1970 federal and state employees have been allowed to substitute comp time in lieu of overtime wages.

If an employee is classified as non-exempt; then the employer must pay overtime. Overtime is sometimes referred to as premium time. The calculation of overtime is determined by federal and state law. The state law takes precedence if more advantageous to the employee than the federal law. There are also consideration as to the start and end date of the pay period with calculating overtime. The bottom line is that comp time in lieu of wages is not permissible under the law.

San Francisco Minimum Wage Tops $10 per Hour and Eight States Increase Minimum Wage for 2012

Wednesday, December 21st, 2011

California regarded as an “employee friendly” state with one of the highest minimum wages in the country at $8.00 per hour.  The City of San Francisco however has an even higher minimum wage that the state minimum wage and beginning in January 2012 will have the highest minimum wage in the country at $10.24 per hour.  Eight states will increase minimum wage beginning January 2012. The federal minimum wage remains unchanged at $7.25 per hour.

Arizona—Standard minimum wage increases from $7.35 to $7.65 an hour. Minimum wage for tipped employees increases from $4.35 to $4.65. (The definition of a “tipped employee” differs under many state laws. However, the term is most commonly used for certain employees in the hospitality industry.)

Colorado—Standard minimum wage increases from $7.36 to $7.64 an hour. Minimum wage for tipped employees increases from $4.34 to $4.62 an hour.

Florida—Standard minimum wage increases from $7.31 to $7.67 an hour. Minimum wage for tipped employees increases from $4.29 to $4.65 an hour.

Montana—Standard wage increases from $7.35 to $7.65 an hour. (Montana law does not allow employers to take a tip credit against minimum wage for tipped employees.)

Ohio—Standard minimum wage increases from $7.40 to $7.70 an hour. Minimum wage for tipped employees increases from $3.70 to $3.85 an hour.

Oregon—Standard wage increases from $8.50 to $8.80 an hour. (Oregon law does not allow employers to take a tip credit against minimum wage for tipped employees.)

Vermont—Standard minimum wage increases from $8.15 to $8.46 an hour. Minimum wage for tipped employees increases from $3.95 to $4.10 an hour.

Washington—Standard minimum wage increases from $8.67 to $9.04 an hour. (Washington law does not allow employers to take a tip credit against minimum wage for tipped employees.)


West Virginia Auto Dealership Learns Expensive Lesson in ADA Compliance and Meaning of Reasonable Accomodations

Tuesday, December 20th, 2011

A West Virginia auto dealership learned a very expensive, $56,000 plus legal fees, lesson in ADA compliance this month.  The dealership settled a federal disability discrimination lawsuit filed by the U.S. Equal  Employment Opportunity Commission (EEOC) on December  16, 2011.  The EEOC had charged that Jim Robinson Ford-Lincoln-Mercury  unlawfully refused to accommodate the disability of a salesperson and then fired  him.

The EEOC charged that Jim Robinson  Ford fired Bryan Perry because of his disability, a leg condition that affected  his ability to walk, after denying him a reasonable accommodation. Such alleged conduct violates the Americans  with Disabilities Act (ADA).

In addition to the $56,000 in  monetary relief paid to Perry, the three-year consent decree resolving the  lawsuit enjoins Jim Robinson Ford from engaging in any further employment  practice that discriminates based on disability or retaliation. In addition, the decree mandates that the  company will adopt certain procedures and training to enable it to accurately  assess whether disabled employees can perform the essential functions of their  jobs and to identify reasonable accommodations that will assist disabled  employees, according to the EEOC press release.

Under the ADA, if an employer is asked to provide reasonable accommodations to a disabled employee the employee must establish what are truly essential and what are non-essential functions of the job.  This requirement is just one of the many reasons why it is so important for a company to have accurate and complete job description for each position.  Employers are also required to make reasonable accommodations with the intent being to balance good process practices, monetary concerns and the requirements of the job.  The ADA does not provide a specific definition of what is a reasonable accommodation since what is a considered reasonable will depend on the facts and circumstances of a particular situation. Reasonable accommodation may include modifying work schedules, making physical changes to the work site or equipment, adjusting supervisory methods, modifying a workplace policy, restructuring a job, providing a job coach, and/or reassigning an employee to a vacant position for which (s)he is qualified.  Reasonable accommodation does not require lowering performance standards or removing essential functions of the individual’s job.

Director Spencer H. Lewis, Jr., of the EEOC’s Philadelphia  District Office, commented “The  employer must then work to identify a reasonable accommodation for the  employee’s disability. Earnest, interactive  communication with the employee, viewing the purpose of the job and its  functions realistically, and carefully researching and considering options for reasonable  accommodation of the disability are all keys to ADA compliance.”

In  Fiscal Year 2011, the EEOC received a record 99,947 private-sector workplace  discrimination charges, the highest number of charges in the agency’s 46-year  history.

Further  information about this case is available at

To download a free template to create job descriptions go to


Getting Ahead of New HR Regulations in 2012- Plan, Prepare and Protect

Wednesday, December 7th, 2011

  The federal Department of Labor (DOL) recently announced that it will significantly change the approach on how it regulates employers’ compliance with certain federal laws. In  2012 the DOL will issue regulations requiring employers to take affirmative steps to ensure compliance with federal wage-and-hour, safety, and anti-discrimination laws. The DOL is moving from the “catch me as you can” approach to regulatory compliance toward a much more proactive enforcement stance with the burden on the employer to “plan, prepare and protect”.  So what’s your plan? Are you prepared? How will you protect? Let’s take it step by step to understand what “plan, prepare and protect” really means.


Plan will require employers to create plans and processes that assess and demonstrate compliance with the federal laws.

Prevent will require employers to implement the plans and demonstrate to the workers that the plans are actually in use.

Protect will require employers to designate certain individual at the company to be tasked with implementing plans and evaluating their effectiveness.

The state of California (as usual) isn’t waiting on the federal Department of Labor. There are several new regulations that take effect on January 1 that will require employers to be much more proactive in notification to employees regarding wage and hour.  California employers should be sure to attend tomorrow’s webinar, “California HR Legislative Update” presented by John Boggs, nationally recognized labor attorney.  You can register for the webinar at


New Tire Charts from OSHA

Monday, December 5th, 2011

There has been a lot of buzz lately over tires. It seems like even touching them is regulated by some federal agency or another. Additionally, I’ve read a few lawsuits, where questions of dealership liability in accidents have been raised, and that doesn’t begin to touch the proliferation of information around waste tire generation, storage or hauling.

So I was not surprised to read that OSHA has revised materials addressing handling and storage standards for workers servicing single-piece and multi-piece rim wheels.

“These updated materials will provide readily accessible information on how to prevent worker injuries and deaths from tire-servicing incidents,” said Dr. David Michaels, Assistant Secretary of Labor for OSHA. “The new format and easy access will simplify compliance with the standard by helping employers provide their workers with vital servicing information.”

The list of Revised Charts

Demounting and Mounting Procedures for Tube-type Truck and Bus Tires Chart

(OSHA 3402) (English: PDF)

Demounting and Mounting Procedures for Tubeless Truck and Bus Tires Chart
(OSHA 3401) (English: PDF)

Multi-Piece Rim Matching Chart
(OSHA 3403) (English: PDF)

Servicing Multi-Piece and Single-Piece Rim Wheels 29 CFR 1910.177 Manual

(OSHA 3421) (English: PDF)


You can also download all of these resources and other publications on OSHA’s Publications page.

Unemployment Rate Declines for First Time Since 2009

Monday, December 5th, 2011

The Bureau of Labor Statistics announced on December 2, 2011  that 120,000 jobs were added in November, and the unemployment rate fell to 8.6 percent. This is the lowest rate since 2009. The largest job gains were in  retail trade, professional and business services, health care, and leisure and hospitality.  The Bureau also reported that productivity rose 2.3 percent in the non-farm business sector in third quarter 2011; unit labor costs decreased 2.5 percent (seasonally adjusted annual rates). In manufacturing, productivity grew 5.0 percent and unit labor costs fell 5.1 percent.

If you are an employer who is finally starting to hire again or never stopped due to turn-over at your organization download the free white paper “HR Compliance Checklist” and do a quick self audit of your hiring and other HR practices.   Make sure that you are hiring in a way that protects you from discrimination claims while ensuring you are selecting the best people for your company.

The white paper “HR Compliance Checklist” is available at

Federal Judge Rules in Favor of Business on Meal and Break Laws

Friday, November 18th, 2011

In the latest ruling on meal and break laws, a federal judge in the Southern District of California ruled in Favor of Penske Logistics. According to this decision, meals and rest breaks are not covered under wage laws. That means that meal and break laws for the transportation industry as defined by individual states are superseded by FAAA laws, requiring that a state:

“may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any motor private carrier, broker, or freight forwarded with respect to the transportation of property.”

Employer’s Bottom Line:

This court’s decision is encouraging for California employers who fit within the definition of “motor carriers.” However, it is too early to tell whether it may be relied upon because it is likely that the order will be reviewed on appeal.


You can read more about the case at our partner’s page: