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EMP · PRACTICE DESK

Employment & Workforce

Reductions in force, background screening compliance, pay-practice mechanics, and workplace investigations — the operational side of employment law where documentation decides exposure.

Foundational briefing

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EMP-01 · 01

The WARN Act and State Mini-WARN Laws in Workforce Reductions

8 MIN · EMP

Whether a reduction triggers advance-notice duties is an arithmetic question answered before any strategy question. This brief works the counting rules, the notice mechanics, and the state overlays.

  • Federal WARN, 29 U.S.C. § 2101 et seq., reaches employers with 100 or more employees and generally requires 60 days advance written notice.
  • A plant closing needs 50 or more employment losses at a single site; a mass layoff needs 500, or 50-499 at 33 percent of the workforce.
  • Employment losses over any 90-day period are aggregated, so two small reductions can combine into one covered event.
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Workforce reductionPay practicesBackground screeningEmployer auditsBenefits compliance

EMP-02 · 02

Employee Background Checks Under the FCRA: Disclosure and Adverse Action

8 MIN · EMP

Most employment screening claims are about paperwork, not about the underlying decision. This brief sets out the FCRA sequence and the points where employers most often break it.

  • Section 604(b) of the FCRA requires a clear disclosure in a document consisting solely of that disclosure, plus the applicant's written authorization, before a report is obtained.
  • Adverse action is a two-step process: a pre-adverse-action notice with a copy of the report and the CFPB summary of rights, then a separate final notice.
  • No statute fixes the waiting period between the two notices; a reasonable interval, commonly five business days, is market practice rather than law.
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EMP-03 · 03

Wage Deductions and Business-Expense Reimbursement Rules

8 MIN · EMP

Federal law sets a floor on paycheck deductions and says almost nothing about expenses; state law does the opposite. This brief separates the two layers and applies them to the deductions employers actually attempt.

  • Under the free-and-clear rule at 29 CFR 531.35, required wages must reach the employee unconditionally, with no direct or indirect kickback.
  • Deductions for items primarily benefiting the employer may not push pay below the minimum wage, and may not cut into overtime compensation at all.
  • Improper deductions from an exempt employee's salary can defeat the exemption; 29 CFR 541.602 lists the narrow permitted categories.
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EMP-04 · 04

Conducting a Workplace Investigation: Scope, Interviews, Records, and Fairness

8 MIN · EMP

A workplace investigation is judged later on how it was run, not on how it felt at the time. This brief sets out scope, interview discipline, confidentiality limits, and the file that survives review.

  • Employer harassment defenses turn on whether the response was prompt, thorough, and impartial — the standard EEOC guidance and courts both use.
  • Separate the fact-finder from the decision-maker. One person finds what happened; another decides discipline. The file reads far better afterward.
  • Blanket confidentiality instructions carry labor-law risk. Board precedent on investigation-confidentiality rules shifted in 2019 and again in 2023.
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EMP-05 · 05

Payroll Records and Wage-Hour Audits: What Investigators Examine

8 MIN · EMP

Recordkeeping is the one wage-hour obligation that has no good-faith defense: either the record exists or it does not. This brief sets out what must be kept, for how long, and what an investigator does with it.

  • FLSA section 11(c) and 29 CFR Part 516 require specified payroll records to be kept three years, with wage-computation records kept two years.
  • A Wage and Hour investigation typically reviews records, interviews employees privately, and can seek back wages plus an equal amount in liquidated damages.
  • Missing or unreliable time records shift the practical burden: employees may prove hours by reasonable inference rather than by documentation.
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EMP-06 · 06

ERISA Plan Compliance: Documents, Reporting, and Fiduciary Duties

8 MIN · EMP

Most ERISA failures are administrative rather than financial: a plan running on an insurer's booklet, a summary nobody distributed, or a filing that stopped. This brief maps the obligations and who carries them.

  • ERISA requires a covered plan to be established and maintained by a written instrument, with a named fiduciary identified as responsible for plan operation.
  • Participants must receive a summary plan description, and most covered plans file an annual Form 5500 return with related schedules.
  • Fiduciaries owe duties of prudence and loyalty, must follow plan documents, and must act for the exclusive purpose of providing benefits.
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EMP-07 · 07

Worker Misclassification Audits and Voluntary Settlement Options

8 MIN · EMP

One worker can be an independent contractor for one agency and an employee for another, because each applies a different test. This brief maps the tests, the audit triggers, and the settlement routes that exist.

  • The IRS applies a common-law control test, the FLSA applies an economic reality analysis, and many states apply a stricter ABC test.
  • Audits usually begin from a single event: an unemployment claim, an injury, a worker's status-determination request, or an agency information-sharing referral.
  • The IRS Voluntary Classification Settlement Program and Section 530 relief are real routes, each with strict eligibility conditions that must be met first.
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EMP-08 · 08

Arbitration Agreements at Work: Scope, Carve-Outs, and Enforceability

8 MIN · EMP

An employment arbitration program is enforceable in outline and contested at the edges. This brief separates what the federal statute secures from the carve-outs and defects that defeat individual agreements.

  • The Federal Arbitration Act makes written arbitration agreements enforceable and directs courts to compel arbitration of disputes within the agreement's scope.
  • A 2022 federal amendment lets a claimant elect to avoid arbitration of sexual assault and sexual harassment disputes, and a court decides that question.
  • Class and collective action waivers in employment agreements are generally enforceable under the federal statute as construed by the Supreme Court.
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EMP-09 · 09

Employment References: Defamation Risk and Service-Letter Rules

8 MIN · EMP

The dates-and-title policy exists because of a risk most employers have never examined. This brief sets out the elements of a reference claim, the privileges that defeat it, and the states requiring more than silence.

  • Defamation requires a false statement of fact published to a third party with the required fault, so truthful statements and pure opinion are not actionable.
  • Many states provide a qualified privilege or a statutory immunity for good-faith job references, usually rebuttable by proof of malice or knowing falsity.
  • A minority of states have service-letter statutes requiring an employer to give a departing employee a written statement of the reason for separation.
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EMP-10 · 10

Joint Employer Liability: Staffing, Franchising, and Shared Control

9 MIN · EMP

Joint employment is not one test. Each statute asks its own question, and a company can be a joint employer for wage purposes and not for bargaining purposes on identical facts. This brief separates the regimes.

  • Joint employment is analysed differently under the FLSA, the NLRA, and Title VII, so one set of facts can produce different answers under each.
  • Under the FLSA, joint employers are jointly and severally liable for minimum wage and overtime, and hours worked for both are aggregated.
  • The NLRB's joint-employer standard has changed repeatedly with Board composition and litigation; as of mid-2026 the 2020 regulation remains operative after the 2023 rule was vacated.
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Scope

Questions this desk answers

  • Does this reduction trigger notice duties?
  • What does FCRA require before we act?
  • Can we deduct this from a paycheck?
  • How do we run a defensible investigation?
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