Oklahoma Employment Law

Nearly everyone has employment law issues at some whether as an employee or an employer. I provide answers to questions about Oklahoma employment law – for both Oklahoma employers and Oklahoma employees.

What is an Oklahoma employer required to tell its employees about the Family and Medical Leave Act?

If you are an Oklahoma business with 50 or more employees, you have probably heard of the Family and Medical Leave Act (“FMLA”). IMG_0407

If you have not heard of it, it is probably a good idea to learn a little bit about the FMLA.  Employers have obligations to tell employee certain details about the FMLA and the document below provides an outline of the details an employer (who is, of course, a covered employer under the FMLA) is required to provide to its employees:

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Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

What does the IRS say about Oklahoma limited liability companies?

From my recent experience I can tell you that when people are considering what type of entity to create, Oklahoma limited liability companies are vastly outpacing Oklahoma corporations.  With the limited liability companies the most common form of entity I see, it seems like a prudent idea to provide some additional material about the limited liability company.  The Internal Revenue Service is helpful with this idea in that the IRS provides a basic description of how it classifies entities. 

Below is a diagram I created summarizing the IRS’s characterization of a limited liability company:

 

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

How does Oklahoma law protect an employee’s social media accounts?

Social media has existed long enough to become common in our lives. 

Although it not the only way to use social media, public broadcasting and interaction is the norm for many people (as opposed to say protecting your Twitter account from public consumption).  It is quick and simple for one to broadcast any thought, feeling, question, rant or tangent into publicly-occupied cyberspace.  With the ubiquity of social media, Oklahoma employer and employees are likely to encounter “issues” from the use of social media.    Recognizing this reality, in 2014 the Oklahoma legislature enacted a law to address employer actions regarding personal social media accounts.  The statute is titled § 173.2. Prohibited actions regarding personal social media accounts–Exemptions–

Below are some of the actions that an Oklahoma employer is prohibited from taking related to employees’ social media accounts:

1. Require an employee or prospective employee to disclose a user name and password or other means of authentication for accessing a personal online social media account through an electronic communications device;
2. Require an employee or prospective employee to access the employee’s or prospective employee’s personal online social media account in the presence of the employer in a manner that enables the employer to observe the contents of such accounts if the account’s contents are not available to the general public, except pursuant to an investigation as provided in subsection D of this act;
3. Take retaliatory personnel action that materially and negatively affects the terms and conditions of employment against an employee solely for refusal to give the employer the user name or password to the employee’s personal online social media account; or
4. Refuse to hire a prospective employee solely as a result of the prospective employee’s refusal to give the employer the user name and password to the prospective employee’s personal online social media account.

You can find the Oklahoma Statute here. As always there are exceptions and qualifications, so if questions arise for you, please feel free to reach out to me.

 

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

When can an Oklahoma employer deduct from an employee’s paycheck?

An employee’s paycheck is semi-sacred and rightfully so because it is the sole source of income for most people in Oklahoma.

The sacrosanct nature of the paycheck means that it cannot be withheld or deducted from except in certain circumstances.  Generally, an Oklahoma employer cannot deduct from or withhold out of an Oklahoma employee’s paycheck unless:

  • The deduction is permitted by state or federal law (taxes, unemployment compensation, etc. . .), or
  • The employer and employee have agreed in a written document that is signed by parties and only in these circumstances:
    • repay a loan or advance or to recover a payroll overpayment,
    • for the cost of merchandise purchased by the employee,
    • uniforms,
    • insurance premiums,
    • retirement or other investment plans,
    • for breakage or loss of merchandise, inventory shortage, or cash shortage so long as the employee was the sole party responsible for the cash shortage or item damaged or lost.

This material came out of the Oklahoma Administrative Code Section 380:30-1-7 and with the assistance of this website.

This is a general summary of allowable withholdings from paychecks of Oklahoma employees.  For assistance with a specific matter, please feel free to reach out to me.

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

What is an independent contractor under Oklahoma law?

Unfortunately, there is no easy answer to this question.  It is based on a range of factors and determined by different sources depending on what you are doing and who is raising the question.  For example, the Internal Revenue Service has a list of factors it considers which you can find here.  If you are in Oklahoma, it is important to know what Oklahoma authorities say matters.

According to the Oklahoma Worker’s Compensation Commission, these are the relevant factors to consider in determining whether a worker is an independent contractor:

  • The nature of the contract shows that the worker is independent from the contractor. For example, the contract may contain an agreement that the contracting party is an independent contractor.
  • The degree of control exercised by the principal (employer) over the work. The greater the degree of control exercised by the principal, the greater the likelihood is that the worker is an employee, rather than an independent contractor.
  • Whether the worker is engaged in a distinct occupation or business for others. For example, the worker is a painter who paints houses for multiple employers.
  • The kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
  • Whether the occupation requires special skills, license, education, or training; which tends to indicate that the worker is a contractor.
  • The worker supplies all or most of the materials that he or she needs to perform the job. If this is the case, it tends to indicate that the worker is an independent contractor.
  • The length of the job, i.e., whether the job is a one-time job or a job that will be performed on a regular basis.
  • The worker is paid as a separate contractor, e.g., an invoice is provided to the worker for his/her services; the worker is paid by the job; the worker files a federal income tax return for his/her business; the worker is provided with an IRS Form 1099 from the principal.
  • Whether or not the work is a part of the regular business of the employer;
  • Whether or not the parties believe they are creating the relationship of master and servant;
  • The right of either party to terminate the relationship without liability.
Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

Oklahoma Business Law: When is an employer required to pay for overtime?

If you are a business owner or someone in a position of authority with a business, do you know if your business required to pay overtime to employees?

You might be surprised by the answer, read on to find out.

For Oklahoma employers covered by the federal Fair Labor Standards Act (“FLSA”), the FLSA controls the payment of overtime.  Here are the basic requirements your business must meet to required to pay overtime pay:
  • The business must be covered by the FLSA.  Consider this blog post to answer the question of whether your business covered by the FLSA.
  • The employee must not be an exempt employee to qualify for overtime pay.  Consider this post for the type of employees who might be exempt from the FLSA.
  • The employee must work more than 40 hours in one work week. 

 

What is the work week? I have seen some uncertainty about this from employers.  According to the United States Department of Labor:

The Act applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

 

To summarize:  All nonexempt employees of an FLSA-covered employer must be paid at a time and a half for all hours worked over 40 in the same work week.


Discouraging fact provided by the Tulsa World:

Oklahoma Minimum Wage

Oklahoma Minimum Wage

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

While you were sleeping . . . Oklahoma non-compete law changed a bit

The New Law

While you were [probably] sleeping, Oklahoma law about non-compete agreements and non-solicitation agreements shifted a little bit.  The new law passed in May 2013 went into effect as of 12:00 a.m. today as Title 15 O.S. sec. 219B:

A contract or contractual provision which prohibits an employee or independent contractor of a person or business from soliciting, directly or indirectly, actively or inactively, the employees or independent contractors of that person or business to become employees or independent contractors of another person or business shall not be construed as a restraint from exercising a lawful profession, trade or business of any kind. Sections 217, 218, 219 and 219A of Title 15 of the Oklahoma Statutes shall not apply to such contracts or contractual provisions.

Regular readers of this blog know that non-compete related topics are a popular subject.

What does this mean?

Not nearly as much as you might think.  Similar to many laws that result from the political process, it appears to be “full of sound and fury” but ends up signifying . . . very little.  This law was passed in response to a decision from the Oklahoma Supreme Court that voided out an entire employee non-solicitation clause because it also prohibited hiring people that might seek employment on their own initiative and without any solicitation or inducement by past employees. In light of this decision, some people thought that all “anti-raiding” provisions might be unenforceable under Oklahoma law.

The practical effect

An employer and an employee (or independent contractor) can agree that when an employee leaves the employer, the employee will not try to hire away the employer’s other employees.  An employer may lose one employee, but that doesn’t necessarily mean there is going to be a mass exit of other employees.

The result of this new statute is that provisions that are in many sharply-drafted employment agreements are now “officially” enforceable (assuming they comply with the statute of course).

Daniel Joshua Salinas identified one other notable item about the new law in this blog post: the law permits restrictions on non-solicitation of employees but does not appear to limit the hiring of those people.

  An example

Here is an example of what a restrictive non-solicitation clause might look like in an employment agreement:

During the term of the Employee’s employment under this Agreement and for a period of twenty-four (24) months thereafter or, if longer, a period of twenty-four (24) months following the termination of the Employee providing any services to the Company, whether such termination be by the Company or by the Employee, the Employee will not directly or indirectly (i) recruit, solicit, encourage, or induce any employee of the Company or its affiliates to terminate such employment (ii) approach any such person for any foregoing purposes, (iii) otherwise disrupt any such employee’s relationship with the Company or its affiliates.

By the way, if you copy this language and use it in an agreement, you are doing so at your own peril and you will get no more than the value you paid for it :).

 

 

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law, Oklahoma non-compete

How to craft a business email that will surely get you sued

Email is ubiquitous. It is so ingrained in our personal and professional lives that we sometimes forget that email creates a paper trail that never goes away.

Even super-smart people stumble occasionally when dealing with email. In a recent piece on The Verge, a gadget blog, the emails of some of Silicon Valley’s most famous and successful CEOs show that no one is immune.

The emails came out as part of a lawsuit alleging that several technology companies conspired to prevent employees from moving to other companies. EricSchmidt008
Check out this gem from former Google CEO Eric Schmidt:

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You can see the entire collection of email as well as some solid reporting on the issues at The Verge.

This situation brings to mind a few tips for your email writing that will hopefully help you not get sued:

1. If it could be embarrassing, don’t write it.
2. Remember as you type out that email: email, like diamonds, is forever.
3. Send emails only to the people who absolutely have to see them.

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

4 things to do after terminating an employee

Are you an employer?  Have you ever terminated an employee or had an employee leave?

If the answer is “yes”, consider this checklist of things to do after terminating an employee:

1⃣.  Pay the final paycheck.  Oklahoma law requires an employee to pay the final paycheck by the date that paychecks would have regularly been paid.  There are substantial penalties if the check is not paid.  No offsets or deductions are allowed from the paycheck unless the employee has agreed in writing to them.

2⃣.  Recover company-owned property.  If the employee has a car, a phone, tools or other equipment, be certain to plan for the return of it prior to the employee’s final departure.

3⃣.  Eliminate security access.  If the employee has access to password-protected websites or any confidential company information, cut-off the employee’s access to reduce the risk of the unauthorized capture of information.

4⃣.  Remove employee as the point of contact.  Often, one employee is the point of contact for goods and services used and purchased by the company.  The vendors that provide these goods and services are familiar with the employee.  Upon the employee’s departure, contact the vendors and make arrangement for a new point of contact.  Sometimes this may require something in writing from the company to the vendor.

Are there other issues you have seen that need to be addressed when an employee leaves?


Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law