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Legal Landscape 2013: Straight talk for staffing firms (part 2)

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Last week, Ask Haley guest-bloggers Joel A. Klarreich, Esq., and Jason B. Klimpl, Esq., attorneys with the New York City law firm of Tannenbaum Helpern Syracuse & Hirschtritt LLP, began explaining four legal challenges and their implications for staffing firms in 2013.  If you missed the first post, you can read it here.

This week, they examine two more legal challenges:

Potential Department of Labor “Right-to-Know” Regulations

It remains a distinct possibility that, at some point this year, the Obama administration will seek public comments on the controversial “Right-to-Know” regulations, which would update employer recordkeeping and disclosure requirements under the federal Fair Labor Standards Act. Specifically, the regulations may require employers to conduct an analysis of all employees who are classified as exempt from overtime compensation (such as professional and executive personnel), and to provide such employees with a copy of the analysis.

Of course, this would be quite burdensome for employers and could lead to additional class-action lawsuits for failure to provide required notices. Considering also the record number of wage and hour lawsuits and enforcement actions witnessed in 2012, employers must constantly monitor and review their payroll and recordkeeping practices.

2013 goals for staffing employers:

  • Review employee overtime classifications.
  • Review payroll and recordkeeping practices.
  • Maintain awareness of current and pending regulatory guidance from the Obama administration.

U.S. Equal Employment Opportunity Commission Enforcement Agenda

The United States EEOC has made it clear that it intends to focus its upcoming enforcement agenda on “quality over quantity.” That is, the agency anticipates filing fewer overall lawsuits, but pouring more resources into (and thereby winning) those enforcement actions that it does initiate.

Among other things, the agency has stated that it will focus on claims of:

  • “systemic discrimination” (i.e., claims that an employer is discriminating against multiple similarly-situated individuals within the organization);
  • discrimination against individuals with criminal convictions (i.e., where the conviction is not job-related);
  • disability discrimination (such as failing to provide a reasonable accommodation);
  • and pregnancy-related discrimination.

This means that employers will have a more difficult time in the unfortunate event of a court battle with the EEOC. 

2013 goals for staffing employers:

  • Engage in supervisor and staff EEO training.
  • Review and develop non-discrimination and non-retaliation policies and procedures.

Joel A. Klarreich, Esq., General Counsel of the New York Staffing Association, is a partner at the New York City law firm of Tannenbaum Helpern Syracuse & Hirschtritt LLP, where he chairs the Corporate, Staffing Industry and Franchise Departments.


Jason B. Klimpl, Esq., an associate at the firm, is the Associate General Counsel of the New York Staffing Association. This article is general in nature and is not intended to be a substitute for legal or tax advice or a legal opinion rendered in response to a specific set of facts. This article may be considered attorney advertising in some jurisdictions.


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