Tag Archives: Classification

by | July 30, 2012 · 7:01 am

Hospitality Industry Employment Risks: Hotel Management Must Perform Regular "Self-Audits" To Determine If Company Is Properly Classifying Workers As Employees Or Independent Contractors

“(The hotel) industry in particular has a tradition of using staffing companies and other staffing arrangements to provide workers, and I think that industry tradition has provided problems for some hotel companies,”

“Hotel companies need to be ahead of the law…do a self-audit … If you’re not compliant, you can take remedial measures to avoid fines from the Department of Labor.”

As the U.S. Department of Labor under the Obama administration is cracking down harder on violations, staying informed about employee misclassification is crucial for hotel operators if they want to avoid costly fines, according to employment attorneys.

Because employment laws often can be complicated, Feldstein suggests employers classify employees themselves by applying the “Right-to-Control” test.

The Right-to-Control test compares the ends versus the means in producing the work the employee was hired to do. If the employer is concerned with only the end result, the employee should be classified an independent contractor.

However, if the employer controls the means and methods of the project in addition to establishing the routine and schedule, it is likely the worker should be classified an employee.

Should an employer need further information, the U.S. Department of Labor website contains basic guidelines that serve as a good starting point, Chapman said.

“There are HR organizations such as (the Society for Human Resource Management) that conduct training and research and guidance on this law and others, which can be helpful,” he said.

Applying the law to a specific set of facts to determine whether or not that individual should be classified as an employee or independent contractor might require the help of an actual practicing attorney, Chapman said.

For more:  http://www.hotelnewsnow.com/Articles.aspx/8674/Classify-employees-properly-to-avoid-penalty

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by | February 29, 2012 · 8:01 am

Hospitality Industry Employment Risks: Hotel Management And Owners Must Have Firm And Comprehensive Policies For Hiring And Classifying New Employees

Hiring

Background checks are routine now, but one size does not fit all, explained Paul Wagner, shareholder of Ithaca, New York-based Stoke Roberts & Wagner. Know the different rules for each jurisdiction.

  • Beware of process and policy around background checks, where decisions might create discrimination issues related to U.S. Title VIII, or the Fair Housing Act, said David Sherwyn, professor at the Cornell University School, of Hotel Administration.
  • Ensure new hires don’t have restrictive covenants from prior employers, said Gregg Gilman, partner with New York-based law firm Davis & Gilbert LLP. Be sure to tell new hires explicitly, “We don’t’ want your former employers’ trade secrets.” “We’re seeing more and more of this kind of litigation,” Gilman said, adding it’s very expensive and disruptive to defend.

Classifications

 The U.S. Department of Labor’s definition of an independent contractor is not the only factor used in determining who is an employee. The courts use a more expansive test when determining who can file Title VII claims, which prohibits employment discrimination based on race, color, religion, sex and national origin, Sherwyn said. “The issue here is that people sometimes relax a little bit with contractors,” he said. Even if someone is not directly employed by your organization (i.e. a contractor) that person can still bring litigation against you.

  •  In light of increased enforcement by the DOL, companies should have protocols in place before classifying independent contractors, Gilman said. Have a written agreement stating the independent contractor is just that. And avoid the “perma-lancer,” or those permanent freelancers, who are more likely to be classified as regular employees, he said.
  • Self audit often, said Ilene Berman, a partner with Atlanta-based Taylor English Duma LLP. Annually review any exempt employee with “assistant” in the name as well as sous chefs and sales managers. Those are the positions most frequently targeted by plaintiff attorneys.
  • Check local and state laws because exempt in other states does not mean exempt in California, said Nancy Yaffe, partner with Los Angeles-based Fox Rothschild LLP. California is a different beast, she added. You have to analyze employee classifications on a continuous basis.

For more:  http://www.hotelnewsnow.com/Articles.aspx/7647/26-legal-tips-for-hotel-HR-professionals

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