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On October 17, 2011, the United States Supreme Court agreed to hear Elgin et. al. v. United States Department of the Treasury, et. al., a case involving a group of federal employees who were terminated and/or had job offers rescinded because of their failure to register with the Selective Service. Some of these employees, like many of our clients, simply never learned of the Selective Service registration requirement while they were still eligible to register. One employee believed he had registered, but Selective Service had no record of his registration. Again, a fairly common fact pattern.

On October 14, 2011, OPM issued another ruling in favor of a client, finding his failure to register with the Selective Service was not knowing and willful. The fact pattern was very similar to the many cases we have handled involving a failure to register — our client had immigrated to the United States when he was 15 years old and never discovered the existence of the Selective Service until he applied for citizenship.

As we have written elsewhere in this blog, when an employer misclassifies a worker as an independent contractor, the employer exposes itself to a host of potential claims and liabilities, including but not limited to payroll taxes, income tax withholding, workers compensation, unemployment insurance, overtime pay, and benefits. To encourage employers to voluntarily fix worker classification errors, the IRS has created a new program known as the Voluntary Classification Settlement Program (“VCSP”) pursuant to which eligible employers can significantly decrease their exposure as a result of misclassifying employees as independent contractors. With the creation of the VCSP, employers that use independent contractors should re-evaluate their independent contractor relationships and confirm whether the facts support the independent contractor label. If an eligible employer determines that one or more independent contractors should have been classified as employees, it may apply for relief under the VCSP. An employer participating under the VCSP: (i) agrees to prospectively treat a class of workers as employees; and (ii) pays to the IRS an amount equal to 10% of the employment tax liability that would have been due on compensation paid to the misclassified workers for the most recent tax year and will not be liable for any interest or penalties. In exchange, the employer becomes exempt from an employment tax audit with respect to the worker classification for the group of workers reclassified under the VCSP. While the relief offered under the VCSP is potentially significant, employers must keep in mind that the VCSP provides relief only from federal payroll tax liabilities. The program does not reduce the exposure relating to other potential claims and liabilities, such as state taxes, workers compensation, overtime pay, and benefits. Accordingly, employers should ensure that they understand and weigh both the benefits and the potential risks of participating in the program. For more about the program, the IRS website contains useful information.

This past spring, the U.S. Department of Labor announced the launch of its first application for smartphones, a time sheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.

Late last year, we began representing a sales executive of a publicly traded technology company with unpaid commission claims exceeding $1 million dollars. Our client had greatly exceeded his assigned sales goals that triggered accelerators under his compensation plan that significantly enhanced his commissions.

In the time since I last updated this blog, the Office of Personnel Management (“OPM”) issued decisions on three appeals we are handling, finding in all cases that our clients' failure to register was not knowing and willful. The first case involved a difficult fact pattern involving a United States citizen who had lived the in the United States his entire lifetime. In this case, our client had actually performed a high school project involving Selective Service registration, and was told that his teacher would take care of mailing the registration card to Selective Service.

Many employers require applicants to sign forms providing authorization for the employer to access an employee's credit report — particularly in the banking and financial services fields. When negative information is uncovered, such as poor credit or bankruptcy, that information is often used as the basis for denying employment.

On April 7, 2011, the Office of Personnel Management (“OPM”) issued a favorable decision in another Selective Service “failure to register” case we handled. Unlike many of our other previous Selective Service cases involving individuals born in other nations, our client was a natural born citizen of the United States.

Last year, we began representing an employee of a local business in an unpaid wage case involving rather extraordinary facts — the employer had issued an astounding total of 57 paychecks to our client which the bank would not honor due to insufficient funds. We filed suit in the Circuit Court for Montgomery County seeking treble (triple) damages and attorney's fees under Maryland's Wage Payment and Collection law which requires employers to promptly pay their employee's wages or face severe penalties.

Not long ago, I wrote about the unfortunate waitress who was fired after posting derogatory information about her employer's customers on her Facebook account. In this day and age, workers should understand that employers routinely scour social media sites in conjunction with hiring decisions, when confronted with troubled employees and in a myriad of other circumstances. Putting aside the legal pitfalls associated with this practice, employees and job applicants have discovered the brutal consequences of posting information, pictures or videos that employers may take a dim view of. Think about it — if two qualified candidates with equal credentials apply for the same position but one had explicit and inappropriate information plastered all over his “wall,” which would you hire?