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 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 ocassionally 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

When does an employer have to pay a terminated employee his final paycheck?

Amtrak employee checks with the station at the Los Angeles Union Passenger Terminal, May 1974

Your employment is over, terminated or quit, and now one of the questions on most people’s minds is: When do I get my final pay check?

Under Oklahoma law, regardless of the reason for termination, an employer is required pay the employee’s final wages in full, less any legal authorized offsets, at the next regular designated payday established for the pay period in which the work was performed either through the regular pay channels or by certified mail postmarked within the deadlines specified by law if requested by the employee.

There are substantial penalties for failing to pay wages even if you [the employer] believe you have a stellar reason for non-payment.  There are a few circumstances where a “bona-fide disagreement” over what is due could relieve an employer from being penalized for failure to pay.

If you [the employer] think you have one of those rare, limited circumstances, consult an attorney.

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

Explaining Federal Employment Law – The Series

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I usually cover legal topics that I see in my practice, particularly if they are common issues small businesses confront. One of those of areas is federal employment law. You might recognize the area more rapidly through terms such as “sexual harassment” racial discrimination” or “wrongful termination.” All of these issue emenate from federal employment law, laws created in Washington, D.C. but applicable to many employers throughout the United States.

What businesses are covered by federal employment law? What types of things are prohibited under federal employment law? What can a business do to eliminate risks of violating federal employment law? Find out the answers to these questions and more by reading the series “Explaining Federal Employment Law”.

What is Federal Employment Law?

What areas are covered by Federal Employment Law?

Is your business covered by federal employment law?

What steps can employers take to protect themselves from employment law claims?

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law
Is your business covered by federal employment law?

Is your business covered by federal employment law?

In Friday’s post, I covered what types of conduct are regulated or prohibited by Federal Employment Law. The focus today is a critical one:

What Oklahoma employers are covered by Federal Employment Law?

Most employers with at least 15 full-time employees are covered by EEOC laws (20 employees for the age discrimination statute). Most labor unions and employment agencies are also covered.

What Oklahoma employers covered by Oklahoma law?

Yet, be cautious because if your business is not covered by federal employment statutes, there may be a state statute that covers you.  For example, in Oklahoma, the Discrimination Act prohibits a business of any size from discriminating against an employee based on an employee’s race, color, religion, sex, national origin, age, genetic information or disability.  There are several types of businesses that are exempt from the Discrimination Act including a religious corporation, association, or society, Native American tribes or a bona fide membership clubs that are exempt from taxation under Internal Revenue Service Law.

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