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The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued joint guidance on Oct. 20, 2016, https://www.ftc.gov/system/files/documents/public_statements/992623/ftc-doj_hr_guidance_final_10-20-16.pdf, on how Antitrust Law applies to employee hiring practices and compensation decisions.  The guidance focuses on managers and human resource (HR) professionals who are normally responsible for regulatory compliance and can, therefore, implement safeguards.  In addition, the guidance announces a significant shift in the DOJ’s enforcement policies stating that the DOJ intends to proceed criminally against “naked wage-fixing and no-poaching agreements”.  The agencies underscored the fact that violators could be pursued both civilly and criminally. The new guidance makes it clear that DOJ and FTC will look suspiciously at employers sharing information regarding terms and conditions of employment — such as industry wage surveys.

As part of their guidance, the DOJ and FTC issued what they called Antitrust Red Flags for Employment Practices. The link to these nine Red Flags is https://www.ftc.gov/system/files/documents/public_statements/992623/ftc-doj_hr_red_flags.pdf. The list is a starting point for what they will be looking for and is not exhaustive of possible indications of antitrust violations. They note that if you notice these red flags or other suspicious behavior and believe that there may have been an antitrust violation, they encourage you to report it to the DOJ and FTC.

The DOJ and FTC caution employers about sharing compensation information with competitors. While not per se illegal (like wage-fixing and no-poaching agreements), the agencies note that such information-sharing such as salary and benefits surveys conducted by industry associations and trade groups could be suspicious.  The guidance directs HR professionals to avoid sharing competitively sensitive information with competitors.  Evidence of exchanges of wage information such as discussion of compensation levels or policies at industry meetings or events could be sufficient to establish an antitrust violation.  Exchanges are permissible in certain circumstances (i.e., it may be appropriate for a company to obtain competitively sensitive information in the course of M&A due diligence), but only if suitable precautions are taken.

Statement of Department of Justice and Federal Trade Commission Enforcement Policy on Provider Participation in Exchange of Prices and Costs, an issue in August 1996, remains as the primary guidance in the exchange of compensation information for employees that will not result in a challenge of an antitrust violation by the DOJ and FTC. From an antitrust perspective, firms that compete to hire or retain employees are competitors in the employment marketplace.  Managers, HR professionals, and employees with access to compensation information should not communicate the company’s policies to other companies competing to hire the same types of employees.

Not all information exchanges are illegal.  It is possible to design and carry out information exchanges in ways that conform to the antitrust laws.  For example, an information exchange may be lawful if:

  • A neutral third party manages the exchange;
  • The exchange involves information that is relatively old;
  • The information is aggregated to protect the identity of the underlying sources; and
  • Enough sources are aggregated to prevent competitors from linking particular data to an individual source.

WageWatch surveys are fully compliant with all antitrust guidelines including aggregating the results to protect the identity of the participants, ensuring that the age of the data is at least 90 days old, and ensuring that data results contain at least 5 participants.  At WageWatch, we offer accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including market compensation data, benefits survey data and salary reports, please call WageWatch at 888-330-9243 or contact us online.


In September, 21 states sued the Department of Labor to block implementation of the FLSA overtime regulations slated to go into effect on December 1st of this year.  Separately, over 50 business groups challenged the DOL’s authority to establish a salary test for determining if an employee is or is not exempt from overtime. Those two cases were eventually consolidated.  On November 22nd, federal judge Amos Mazzant, a judge for the eastern district of Texas, appointed by President Barack Obama, entered a nationwide preliminary injunction to stop the implementation of the new overtime regulations. The new regulations would have increased the minimum salary for exempt “white collar” executive, administrative and professional employees from $455 per week to $913 per week, or $47,476 per year.

The Federal Court ruled that Congress intended the EAP exemption to apply to employees doing actual executive, administrative, and professional duties rather than an employee’s salary.  The Court concluded, that the new regulations, which raise the salary threshold significantly would have created “essentially a de facto salary-only test.”  The Court explained, “[t]he [DOL’s] role is to carry out Congress’s intent.  If Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

This past Thursday, December 1st, the DOL filed an appeal asking the Fifth Circuit Court of Appeals to overturn the preliminary injunction against its new overtime regulations. Since an appeal in the Fifth Circuit can take a year or more, many labor experts and attorneys expect there will be further legislative or administrative action once the Inauguration occurs and a new Secretary of Labor is in place and this likely will happen well before a final court ruling takes place.

However, many employers have already implemented changes, by either raising exempt employees’ salaries to meet the new threshold or reclassifying employees who are still earning less to nonexempt status.  Employers who have already implemented such changes, may want to leave decisions in place as It would be difficult to take back salary increases.  Employers may want to postpone reclassifications that have not yet been done to give the litigation a chance to play out.  And Employers may want to communicate that there may be future changes depending on Federal Court, Congressional, or Trump administration activities.  Employers shouldn’t assume that the overtime rule will be permanently barred and should have a plan to move forward if necessary in the future.

This said, here are a few possible future scenarios that could unfold:

  • A lame-duck Congress comes up with a compromise bill for President Obama’s signature (not likely);
  • President Elect Trump addresses this after his confirmation by abandoning the Obama administration’s defense of the final rule; and
  • The new administration may introduce legislation seeking a compromise, with a lower, or graduated salary threshold increase, and without the automatic escalator clause.

Regardless of what action the current administration or the new administration take, it is very likely we will see more activity at the state and local government levels. Unions are leading the effort for a $15 minimum wage at the state and local levels. They have had some success in California, Oregon, Washington and New York. As part of that effort, adding a doubling of salary for exempt employees is a logical extension of the unions’ efforts. Why? Because the minimum wage effort impacts exempt employees under FLSA. Exempt employees who are not paid for overtime may see their line employees earning more than they do.

WageWatch offers accurate, up-to-date HR metrics, benefit survey data, market compensation data and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. The PeerMark™ Wage Survey is the only Web-based custom survey tool that allows individual survey participants to select their competitive set for comparison purposes.  Our experienced compensation consultants can assist with your organization’s compensation needs.  We can help you ensure internal equity and compliance with regulations as well as help you structure your compensation programs to support your company’s business strategy and objectives.   For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.


Mergers and acquisitions are extremely challenging and even chaotic events.    Therefore, it is critical that everyone involved has a clear understanding of their role in the process. Mergers and acquisitions have become the norm in the business world and are often necessary for survival.  Almost every major company in the US today has or will experience a major acquisition.  There is a subtle yet distinct difference between a merger and an acquisition.  A merger is when two separate companies merge into one new entity.  An acquisition is when one company buys the assets of another company.  A merger or acquisition can be desired due to many different strategic reasons including positioning in the market, acquiring another company’s areas of strength or expertise, acquiring capital, diversification and short term growth.  There are several phases or steps in the acquisition process and human resources will typically be involved in at least 2 to 3 of these phases including the due diligence and investigation process and the post-merger integration process.


The human resource role in the due diligence and investigation process is to perform a thorough review of all human resource contracts, benefit plans, plan documents, systems, personnel, employment records, all forms of compensation, policies and procedures especially related to human resource regulations that relate to all human resource disciplines including compensation, benefits, recruiting, employee relations, training and development and payroll and HRIS.  Human Resources will also help to determine the organizational structure and staffing models for the new organization.  Some other important items that fall under the Human Resources umbrella are wage and hour or other compliance claims, employment litigations, collective bargaining agreements, any FMLA, OSHA, Workers Compensation, EEOC and OFCCP compliance issues.


Transition issues need to be discovered and addressed, for example pay levels between the two organizations may be very different and a cost analysis may be needed to determine the cost of bringing pay levels more in line between the two merging entities.  Other transition issues that often need addressed are transitioning pay increase and performance review cycles, differences between benefit levels in health care and retirement plans.  Most items will need to be addressed immediately, and some items can be completed during the first or second year following the merger or acquisition.  For example if the acquisition occurs in the first quarter and your merit increases are done in January, you may be able to wait until the following January for this transition.  Conversely, it will be highly desirable to transition the acquired entity employees immediately to your health and welfare plans rather than take on the administrative burden and ownership risk of additional plans.


Human Resources is also responsible for layoffs, stay bonuses, culture differences and synergies and will play a key role in the orientation and welcoming of the new employees.  These are just a few key items on the Human Resources Acquisition Checklist.  And each item has its own list of key points and issues that must be addressed.  While most of the transition work will happen prior to the closing date, the job of transitioning employees into your policies, pay models, practices, procedures and culture does not end at transition date and typically continues for 2 to 3 years following the transition date and requires continued review at the management level.


Change can be challenging and demanding.  With over 5,000 properties in our lodging compensation database, 150 casinos, and 125 hospitals and clinics, we regularly see properties being acquired, divested, and rebranded. Consolidations are occurring at a rapid pace in the healthcare industry as well with hospitals buying physician groups and primary care practices. There are numerous human resources concerns to address every time a property changes hands. WageWatch consultants can guide you through the process of integrating two or more compensation models, rebalancing grades and ranges, examining internal equities between plan documents, developing a market based approach to resolve inconsistencies, and helping you along the way with all your transition needs.  For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.


Many organizations today are focusing on their company’s culture including determining their culture, deciding what it should be, aligning with strategic goals and transitioning to the desired culture.  Culture is important because it reinforces the values in the organization, which in turn shapes team members behavior.  There are many success stories of companies with cultures that are aligned to their business goals including Google, Zappos, and Patagonia.  These companies have not only developed a culture that supports their business, but have fully embraced their culture.

Organizational culture is the collective behavior of the people who are part of the organization and has important effects on the morale and motivation of the organizational members.  It includes the values, norms, systems, beliefs, attitudes and habits of the organization and affects the interactions of the employees with each other, and with customers.  Even before you define it, you know it is there and that it has an impact on your business. This is why it is so important to internalize the culture and understanding when company activities are in sync or not with the culture.

Once the company values and desired culture are defined, compensation can support and help drive the values and corporate culture.  It is important that the role of compensation in an organization and the compensation strategy are also defined.  For example, where does the organization want to set pay levels in comparison to the competitive market?  Perhaps the organization’s culture is strong on training and developing its employees, acknowledging their successes and offering advancement opportunities. This in turn may allow the organization to set lower pay levels than what is paid in the market.  Of course, when recruiting it is important to align the compensation strategy to support the values of the culture through highlighting performance management, performance appraisals and the goal setting process for each team member.

Once values, business objectives and desired behaviors are determined then compensation plans can be put in place to support the culture.  For example, if the business objective is innovation and the desired behavior is risk-taking, then short term incentives may be the compensation strategy.  If the goal is for a highly trained workforce and the behavior is learning and upgrading skills, then skill or competency based pay may be the compensation strategy.

Corporate culture is about people’s behaviors – how goals are accomplished – so to establish a culture that drives company success, organizations should link a significant component of their compensation systems to behaviors.

At WageWatch our compensation consultants can assist with your organization’s compensation needs and help you ensure that your compensation programs are supporting your company’s business strategy and objectives.  WageWatch also offers accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online .

To Check or Not To Check: A Background Check Primer

On May 24, Randy Pullen, President and CEO of WageWatch, Inc., published an article in HotelNewsNow.com about a local Arizona case involving a registered sex offender who allegedly used employment in the hotel industry as a front desk agent to target his next sexual assault victim.  The article concludes that thorough pre-employment background checks are a critical tool in mitigating new hire risks. 

There are many types of background checks available to HR professionals that can be conducted in house or externally by vendors who specialize in employment screenings.  HR professional should take a strategic view of onboarding as a process. By doing so, several layers of checks and screenings are implemented to best reduce new hire risks.  It is the old adage that the result is more than the sum of its parts.

New hire selection process starts with the job advertisement or announcement.  The announcement needs to be designed to attract specific skills and behaviors while discouraging those without. Posting in the advertisement that the position requires a drug test or criminal background check is a potent deterrent.  Those still interested should be directed to a job application that captures information that will form the groundwork for the pre-employment screenings in the next recruitment phase.

The EEOC enforces Title VII of the Civil Rights Act; Age Discrimination Act; Title I of the Americans with Disabilities Act; Equal Pay Act; and Title II of the Genetic Information Act.  Employers are welcome to use all manner of pre-employment screenings – as long as they comply with EEOC standards. None of these Acts directly prohibit employment discrimination based on credit information, conviction records, previous employment, education, or psychological/behavioral profiles. However, the EEOC has a published a Compliance Manual and provides guidance on a number of pre-employment scenarios, because of the disparate impact facially neutral polices can have on these numerous protected classes.

This is the tightrope that causes many HR professionals to gloss over background checks out of fear of inadvertently triggering an EEOC investigation.  What you don’t know, can hurt you.  HR has a duty to the company to traverse this tightrope and understand the often gray and contradictory playing field (between state and federal guidelines) in which they conduct pre-employment screenings.

Criminal Background Checks – Treat each criminal record individually in the context of the job sought, work environment and conditions, and risk to the organization. Ask the candidate about the situation. Deliberate omission and lies can be used a basis to disqualify the candidate.

Credit Check – Most commonly used for positions that have are executive level, have financial responsibility, or have access to confidential information such as social security numbers to reduce the risk of theft or embezzlement.  Allow candidates the opportunity to explain negative results as some reasons, such as medical bills, are protected.

Physical/Medical Exam – This screening is allowed only after a conditional offer of employment is extended and is used in specific jobs that require a proof of fitness in order to safely perform duties.  All candidates in the job category are required to have the same medical examination.  The candidate medical history is confidential and must be kept separate from employment records.  HR professionals need to keep in mind that the medical examiner does not make the final hiring decision.

Motor Vehicle Record – This is a critical check for positions that are required to operate a company vehicle as part of the job requirement.  In some states, DUI convictions are kept with the DMV not the criminal court system.  There are vendors that make multi-state verification easier by consolidating searches.

Work & Education History – Past performance is a strong indicator of future performance.  The goal of the work history and education background check is to establish that the glowing resume represented to the recruiter is factual and accurate. On education, check with the governing body on the authenticity of the degree.  We recommend asking for full transcripts for recent graduates with a short work history.

As a company, it is important for you to understand the new regulations set forth by the EEOC and implement them in your hiring and workplace practices. Additionally, for the good of your employees, it is helpful to analyze benefits survey data, compensation surveys and salary reports. Having this information at hand allows you to plan a budget, including competitive employee salaries and benefits, which will help you to hire and retain a happy, talented team.

At WageWatch, our expert evaluators provide businesses in a large range of industries with accurate and beneficial benefits survey data, compensation surveys and salary reports to ensure that payment and benefits plans are on par with those in the industry. For more information on market compensation data, please call WageWatch at 888-330-9243 or contact us online.

New EEOC Requirements on Arrest or Conviction Records

In the past, criminal background checks were used only to review the backgrounds of candidates applying for more sensitive positions, such as those that required working with children. Due to advancements in technology, which have provided easier access to information, this is no longer true. Today, an astounding 73 percent of employers have reported using criminal background checks on all employees, regardless of the job position and the duties entailed.  

The job market today contains a surplus of applicants and a shortage of jobs. When a company has positions available, the human resources department receives a very large quantity of applications. In order to more easily sift through the pool, background checks have been employed to narrow down the numbers of qualified applicants, discarding those with arrest or conviction records.

Advocates of employee rights were well aware of this practice, and recently came out victorious in approving regulations that will make it easier for those with records to obtain jobs. In a vote of 4 to 1, the Equal Employment Opportunity Commission (EEOC) approved new laws that require companies to change how they use background checks for hiring activities and in the workplace.

Criminal background checks have long created racial disparities at companies because members of racial minority groups statistically have higher rates of arrests and convictions. When background checks are performed for all jobs, these minorities immediately become locked out. The new regulations intend to prevent this kind of discrimination from occurring by changing when and how background checks can be used. Now, the approved regulations state that criminal background checks can only be performed if it is proven that they are necessary and relevant to the duties of the job. The law also state that employers should exercise caution when reviewing background checks as arrests do not necessarily mean criminal activity has occurred, and these candidates should not be wrongly eliminated from consideration.

While the new guidelines passed by the EEOC are a win for both employees and those seeking employment, they are also still beneficial for employers. The rules on when and how background checks can be used by companies may have changed, but employers still uphold the right to use criminal background checks in their business operations when appropriate. Many businesses see them as necessary for creating a safe work environment as well as building a team that they can trust.

The new requirements serve the interests of both the employers and employees. While these laws act as a check on employers, protecting the rights of job seekers and employees, they aren’t banned from running background checks should they see it fit for the job at hand.

As a company, it is important for you to understand the new regulations set forth by the EEOC and implement them in your hiring and workplace practices. Additionally, for the good of your employees, it is helpful to analyze benefits survey data, compensation surveys and salary reports. Having this information at hand allows you to plan a budget, including competitive employee salaries and benefits, which will help you to hire and retain a happy, talented team. At WageWatch, our expert evaluators provide businesses in a large range of industries with accurate and beneficial benefits survey data, compensation surveys and salary reports to ensure that payment and benefits plans are on par with those in the industry. For more information on market compensation data, please call WageWatch at 888-330-9243 or contact us online(https://www.wagewatch.com/Contact/ContactUs.aspx).


Hoteliers Face Complex Union Negotiations

(This column recently appeared in Hotel News Now where Randall Pullen is a columnist for their on-line publication)

I attended the annual Hospitality Law Conference recently concluded at the Houston Omni Hotel.  Besides meeting with many of the leading labor attorneys across the country, it is an opportunity to learn about the latest legal issues and rulings that are affecting hotel human resources and labor markets.  This year was no different; there are a lot of new developments that are or will impact the hospitality industry now and in the near future.

It would take several columns to just deal with the many unknowns of the Patient Protection and Affordable Care Act also known as Obama Care, or the proposed changes to the immigration laws that are now being discussed in Congress, or with the many labor union contract negotiations scheduled to occur in 2013. While all three of these issues are very important to the Hospitality industry, I am going to focus on the upcoming negotiations between hotel companies and the labor union, UNITE HERE. There is much that can be learned from the last round of negotiations to prepare for this new round of union contract negotiations.

UNITE HERE represents the most hotel workers of any union with over 100,000 hotel workers in almost 1,000 hotels across the country.  The union currently has contracts with several of the major hotel companies that expire later this year.  The negotiations for the current contracts started in 2009 when the prior contracts expired, and were not signed until last year. The negotiations were contentious and drawn out due to many of the contracts expiring during the great recession. Management companies were looking for wage freezes, longer work hours as well as employees picking up a portion of the healthcare premium costs. Now, a year later the process will start all over.

In the prior negotiations, UNITE HERE made several changes in the tactics it used. The most notable was negotiating on a regional or national level with individual hotel companies instead of using the multi-employer model market by market previously used.  Once they achieved a concession from one employer, they would use it in negotiations with the other companies to accept a similar concession. Although carrying on multiple negotiations at one time made it more complex, the tactic appeared to work as they played management companies off against each other as well as in individual markets.

Also notable in several current contracts is the requirement that a successor company purchasing the hotel must honor the existing contract with the union.  This clause was added due to the many sales of hotels over the last 5 years where the contracts with the unions were ended and employees were rehired without a contract.  This expanded interpretation of succession was approved by the NLRB, which is quite different to how succession is typically determined. There have already been a number of hotel sales that have been cancelled due to this requirement.

Going forward this year, we will see a number of new tactics as well as some that were tried in the last round and will likely be front and center this time. Management companies successfully used poor financial performance as a tactic, which will not be available this time.  The strong recovery of the hotel industry with record occupancies and continued strong financial performance forecasted for 2013 and 2014 generally will preclude such a defense, even though RevPAR still lags.  For those markets not recovering as quickly as the major markets, hotel companies that make this argument will likely have to produce financial statements for all affiliated companies to prove there is a financial hardship.

We have already begun to see the counter arguments being made by the unions.  They are claiming that hotel companies have recovered and are making record profits.  The only ones left out of the recovery are the workers. A good example of this tactic is what occurred in Seattle last April.  In a report issued by SAGE (a union supported non-profit), Seattle Hotels Do Not Pay a Living Wage, they claimed that many hotel workers in downtown Seattle did not earn a living wage, had no benefits and a housekeeper’s job was more dangerous than working in a coal mine. Of course none of these claims were true, but it became a national news story. The AH&LA, with the help of WageWatch, was able to refute all of these claims.  No doubt, we will see this played out again and again this year and next as negotiations drag on into 2014.

UNITE HERE will intensify its efforts to negotiate one-on-one with management companies. The example they have made of Hyatt Hotels over the past 2 years is what awaits other management companies who refuse a union contract for all their hotels.  Flash mobs (Lady Gaga Flash Mob), boycotts (Hyatt Hurts) and employee lawsuits brought against individual hotels (Hyatt Settles Complaint) with the backing of the NLRB await those who don’t play ball.

Labor lawyers also believe a number of other provisions will become more mainstream in negotiations including: expanded successor language to require new owners to honor existing union contracts; more limitations on subcontracting of services including such things as prepackaged food, wedding cakes, arguing that such purchases equate to subcontracting culinary services; extended length of contract to 7 years; and significant wage increases to “catch-up” with wage freezes implemented during the recession.

Looking ahead, hotel companies will face an entirely new bargaining landscape in union negotiations this time around. Some of the lessons learned from the prior contract negotiations will likely shape the new negotiations, bargaining goals, concessions, and tactics employed. As more unions move toward the UNITE HERE model of nationally-focused bargaining strategies, employers that operate in multiple markets will be forced to take a “big picture” approach to their negotiations as well as to unique circumstances in individual markets. Smaller hotel companies that operate in a few markets or in a single market will be forced into accepting provisions negotiated with the major hotel companies or face the consequences.


Randall Pullen is President and CEO of WageWatch, Inc., which he founded in 1999 to design and implement Web-based wage and benefit surveys. Mr. Pullen’s work experience includes over 30 years of software development and consulting to the hotel industry. Mr. Pullen is a certified public accountant and a member of the AICPA. He earned a Bachelor’s Degree in mathematics and an MBA from Arizona State University. He serves on the boards of a number of companies and associations, and is currently the Treasurer of the Arizona Housing Finance Authority.

The opinions expressed in this column do not necessarily reflect the opinions of HotelNewsNow.com or its parent company, STR and its affiliated companies. Columnists published on this site are given the freedom to express views that may be controversial, but our goal is to provoke thought and constructive discussion within our reader community. Please feel free to comment or contact an editor with any questions or concerns.

Copyright © 2004-2011 Smith Travel Research /DBA HotelNewsNow.com (HNN). All Rights Reserved.

The Paycheck Fairness Act: Are you ready for this?

“Giving women my Lilly Ledbetter Fair Pay Act without the Paycheck Fairness Act is like giving them a nail without a hammer.”  Lilly Ledbetter (AAUW.org) 1/28/13

If you don’t already have the compensation structures, policies and administrative processes in place to ensure fair and equitable pay within your organization, this may be a good time to do so.  The Paycheck Fairness Act (PFA), which has been rejected twice by the United States Congress, was reintroduced by Senator Mikulski & Representative DeLauro earlier this year.  Additionally, in his recent inaugural speech, President Obama highlighted equal pay for women as a priority for this next term.  The PFA, if passed, would close ‘loopholes’ in the historic 1963 Equal Pay Act (EPA) and build upon The Lilly Ledbetter Fair Pay Act which was signed by Obama four years ago.  The Lilly Ledbetter Act most significantly stated that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action.

The PFA’s objective is to further narrow the pay gap between men and women by limiting employer defenses and removing the caps on punitive and compensatory damages from pay discrimination lawsuits.  The Paycheck Fairness Act would apply to all businesses that must comply with the FLSA and would have widespread implications for businesses and their employees.  The PFA would amend the Fair Labor Standards Act of 1938 and the Equal Pay Act of 1963 in the following ways:

  1. Broadens the definition of the term “establishment” from the same job site to any location owned by the same firm within the same county.  The new definition would no longer permit pay differentials on the basis of different working conditions.  For example, the PFA would no longer permit pay differentials for employees doing the same work in different locations owned by the same fast food establishment within a county.  Currently, pay differentials may be permitted for reasons such as the different competitive markets in each location.
  2. Only wage differentials that can be proved to be caused by something other than gender, truly related to job performance and consistent with “business necessity” will be defensible.
  3. Includes all female workers within an establishment in class-action lawsuits, unless they specifically opt out.
  4. Lifts the cap on punitive and compensatory damages and leaves it up to the courts to decide what appropriate damages are.
  5. Protects employees who discuss, or disclose their wages with another employee.
  6. Authorizes subsequent regulations that require employers to collect and report pay information data on their employees’ sex, race, and national origin.
  7. Creates a new grant program for training girls and women how to negotiate.

The PFA, if passed has the potential for numerous new lawsuits exposing employers to far greater liability.  It is critical for employers to continually manage and monitor their compensation practices.  Managing internal and external equity is a dynamic process requiring human resources to remain vigilant on changes in market conditions and business demands. HR must also continually ensure internal compensation structures, policies and administrative practices are achieving their intended goals.  The WageWatch Compensation Consulting Team is available to conduct internal equity audits to address employer concerns and add creditability to pay practices.  Additionally, the WageWatch PeerMark ™ Salary Survey reports the most current data available which forms the basis of the external analysis. To learn more about our compensation surveys, salary reports and other market compensation data, please call 888-330-9243 or contact us online.

Common FLSA Pitfalls

The Fair Labor Standards Act (FLSA) is a federal statute that applies to most jobs within the United States. The law regulates such things as minimum wages, overtime hours and child labor laws. In addition to following these regulations, your business should also use salary reports, compensation surveys and other market compensation data to make sure your employees are being compensated fairly.

While the FLSA is designed to protect employees, there are certain elements of the law that can be a cause of confusion for employers. The following is a list of common FLSA pitfalls that employers can and do fall into:

  • “The FLSA doesn’t apply to our business because we’re too small”. While many state and federal employment laws take the number of employees into consideration, the FLSA does not; therefore, this law does apply no matter how big or small your business may be. The FLSA covers all employees who work for a company that affects interstate commerce, which is the majority of businesses.  To save time, legal expenses and a lot of headache, it is safe to assume that your employees are covered under the laws of the FLSA.
  • “Our salaried and/or high ranking employees are exempt from overtime pay”. This is not entirely true. There are many non-exempt employees that are paid set salaries based on salary reports, compensation surveys and other market compensation data, such as secretaries or technicians. Also, even if an employee has a high ranking job title, such as manager or director, it does not necessarily mean they are exempt. The Department of Labor has designed tests regarding the nature of each employee’s job in order to qualify for exemption. Pay and job title are completely irrelevant.
  • “Overtime is not given because the fixed salary covers straight time and overtime pay”. No matter how large the salary may be, this is false. The Department of Labor requires that if an employee exceeds the maximum weekly number of hours worked, overtime must be paid because salary pay only covers straight time pay.
  • “Our employees volunteer extra time, so no overtime is paid”. Employers should never allow employees to work extra hours off the clock because this can lead to wage claims and lawsuits. At a minimum, the employee must be paid minimum wage and overtime pay for each additional hour. There are exceptions for organizations, such as governmental entities or non-profits, which may have actual volunteers. For these types of organizations, every unpaid individual must sign a volunteer agreement in order to avoid lawsuits.
  • “Our business provides employees with compensatory time in place of overtime”.  While governmental employers are allowed to use compensatory time, private employers are not; however, private employers may informally use compensatory time by adjusting the schedule of a work week to make sure that no employee works over 40 hours. Keep in mind that in most cases, overtime hours cannot be averaged over a long time period. All overtime worked within one work week must be accounted for.
  • “Contracted employees don’t receive overtime”. Independent contractors do not get paid overtime as they are not considered to be employees of the company. While this is true, problems occur when employers misinterpret what it means for an employee to be considered a contractor. For example, employers may hire temporary workers during busy months of the year to help with the workload and think of them as contract employees. In reality, these workers are not contractors and are covered under FLSA.

It is important to know the regulations of FLSA in regards to your business and employees. Additionally, you should be using compensation surveys and salary reports in order to establish a fair rate of pay for your employees. At WageWatch, our market compensation professionals can provide your business with accurate, up-to-date compensation surveys and salary reports from businesses in your industry. To learn more about our compensation surveys, salary reports and other market compensation data, please call 888-330-9243 or contact us online.

The Impact of the Affordable Care Act on Business

The Affordable Care Act is already causing much confusion for American companies as well as for the general public. The law, as passed, was over 2,500 pages long and will require thousands of additional pages of regulatory policy in order to be enacted.  As we enter the year 2013, there will be many more changes to healthcare as the new law and the regulatory policies surrounding it take effect. As the provider of employee benefits, business owners need to fully understand the impact that the Affordable Care Act will have on their business and their employees over the next few years.

The professionals at WageWatch would like to share the following refresher on some of the most important policies within the Affordable Care Act:

1. Small business owners will receive a tax credit on their contribution to employee insurance policies. For businesses with less than 10 employees, each with average wages under $25,000, they will receive a 50 percent tax credit on their contribution. These tax credits apply to all small businesses up to 50 employees with average wages of $50,000, although the credit is reduced on a sliding scale depending on the businesses size and average salary.

2. Beginning in the year 2018, the Affordable Care Act will impose a 35 percent tax on employer provided health insurance plans that exceed $10,200 for individual coverage and $27,500 for coverage of a family. The idea behind this policy is that business owners will aim to avoid expensive insurance policies known as Cadillac Plans, and insurance companies will be forced to modify coverage with an eye to keeping costs down.

3. If you are a small business with 51 or more full time employees, you will be fined $2,000 per employee, excluding the first 30 employees, if you do not offer insurance for employees that work an average of 30 or more hours each week.  For small businesses with 50 or fewer employees, there is no penalty. Small businesses of all sizes are also not required to provide insurance for part-time employees.

4. Business owners must offer insurance that is certified affordable to employees. The premium for each employee’s plan cannot exceed 9.5 percent of their total household income. If the insurance coverage doesn’t meet the affordability law, employees should be offered tax credits to purchase insurance on their own. Business owners will then have to pay whichever is less: $3,000 per employee that receives the credit or $2,000 per employee, excluding the first 30 workers.

5. Businesses with less than 100 employees that work an average of 25 or more hours per week are eligible for grants to start wellness programs. These programs encourage employees to take control of their health by living more healthy lifestyles, which helps to prevent harmful health conditions down the road.

It is clear from just the five points above, that much is still to be determined before implementation can take effect. Please stay tuned as we will continue to provide you with updates on ACA as more information becomes available.

The experts at WageWatch want you to know how important it is to be aware of the new policies under the Affordable Care Act and their effect on small businesses. Employers need to properly plan for the future by developing accurate budgets that take the changing costs of healthcare benefits into consideration for the year 2013 and beyond. For assistance with your budget, WageWatch offers cost-effective reports, including salary, wages and benefits survey data. To learn more about the services provided by WageWatch, please call 480-237-6130 or contact us online.


Posted in Regulatory & Legal Updates on December 12th, 2012 · Comments Off on The Impact of the Affordable Care Act on Business