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Wage and Hour Snow Storms


Now is a good time for a quick reminder of the wage and hour rules on snow storms and employee compensation.

Let's start with the FLSA:

1. As a result of the FLSA’s salary basis requirement, if as a result of a snow storm you close for less than a full work week, you must pay an exempt employee for full or partial days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close.  Note: if sick days cannot be used for personal reasons, then an employer most probably cannot require that an employee use sick days in these circumstances.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  Same caution about sick days. You also must pay him or her if he or she works from home.  

3 No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the snow; however, there is an important exception for non-exempt employees who are paid under the fluctuating work week.

Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed. 

Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.

Keep in mind state law may impose additional requirements or restrictions. For example only, in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours' pay the employee must receive.

Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

Be safe.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship

Jonathan A. Segal is a partner at Duane Morris LLP and a member of the firm's Employment Services Group. He is a routine contributor to SHRM, Fortune, and other legal, business and HR publications. 

 

 

 

 

 
 
 
 

What the Supreme Court's Decision on Donning and Doffing DOES NOT MEAN!


Case: Sandifer v. United States Steel Corporation

Background:  As a general rule, the FLSA requires employers to pay their employees for time spent changing into required protective clothing/gear at work.

Statutory Exception: Section 203(o) of the FLSA provides that time spent changing clothes or washing at the beginning or end of each workday may be excluded from compensable time if it is treated as non-work time by a collective bargaining agreement.

Key issue in the case: does protective gear constitute clothing subject to the statutory exception?

Monday's Supreme Court decision: In construing section 203(o), the Court came up with its own definition of clothes, finding protective gear falling within it:   "Dictionaries from the era of §203(o)'s enactment indicate that 'clothes' denotes items that are both designed and  used to cover the body and are commonly regarded as articles of dress."

Limitation of decision: opinion interprets FLSA provision that applies only to union employees under collective bargaining agreement. Further, many  state laws do not include a  provision comparable to the exclusion under the FLSA so the potential benefit of the decision will not even be available to all unionized employers.

So, be careful of headlines that suggest a broader reach than the decision itself.

A more detailed alert to follow

 

This short alert does not constitute legal advice, is not applicable to factual situations and does not establish attorney-client relationship. 

 
 
 
 

Give Me a Break


I am pleased to share with you my latest article written for SHRM's HR Magazine.

Legal Trends 
Give Me a Break 
Vol. 58 No. 12 
Know the rules for different kinds of work breaks. 

12/1/2013
By Jonathan A. Segal

There’s no taking a breather from the requirements of the Fair Labor Standards Act (FLSA). Some of its most arcane requirements pertain, in fact, to breaks. Got all of those rules memorized? What about your managers—do they remember the rules? Probably not, if it’s been more than a year since your last FLSA training. No, it’s not required, but it’s the best way to reduce your potential (and realized) liabilities. So get out a pen and paper—it’s time for a refresher on the FLSA.

Rest and Meal Breaks

As a general rule, the FLSA does not require that employees (other than minors) receive any breaks, whether paid or unpaid. Rather, the FLSA’s regulations outline only when breaks must be paid if they are offered at an employer’s sole discretion.

The one exception to the general rule is that, as part of the Patient Protection and Affordable Care Act, employers now, under the FLSA, must provide nonexempt mothers with the time and space to express breast milk for one year after the birth of a child. Few employers limit this right to nonexempt employees only, and many states have laws that go further than the federal law.

Aside from lactation breaks, the regulations divide breaks into two categories: rest breaks and meal breaks. In terms of payment, different rules apply depending on the type of break.

For rest breaks, the regulations stipulate that an employer must pay workers if the period is 20 minutes or less. According to the regulations, breaks lasting five to 20 minutes are common and promote efficiency.

For meal breaks, the regulations stipulate that, ordinarily, an employer must pay workers if the break is less than 30 minutes. The regulations leave open the possibility that shorter meal periods may be noncompensable in special circumstances.

With meal breaks, the burden is on the employer to prove that special circumstances apply justifying the shorter break.

Keep in mind also that the regulations do not always fit today’s workplace reality. Sometimes it is hard to tell whether a break is to rest or to consume a meal.

For this reason, it is not surprising that some U.S. Department of Labor (DOL) investigators, as a matter of enforcement, have taken the position that an employer must pay workers for all breaks that are less than 30 minutes. That way, they don’t have to engage in a break-by-break analysis.

In such cases, the DOL’s position is inconsistent with its own regulations and case law. But a 30-minute rule does avoid litigation of that issue.

Even if a meal break is 30 minutes, that does not mean that it automatically occurs without pay. The employer must consider not only the length of the break but also whether the employee is free from work.

If the employer requires the employee to stay in his or her work area, it may have to pay the employee, even if the break is 30 minutes or more. Similarly, if the employer asks an employee to do any work during the break, it may have to pay for the entire break.

It is against this backdrop that this article discusses five common mistakes. Sadly, the risks are greatest when employers are flexible and employees earnest.

The Man in a Hurry

Suppose an employee gets a 30-minute unpaid lunch break. He asks if he can take 15 minutes instead on a regular basis so that he can be home as soon as possible after his kids return from school. Do you have to pay the employee for the 15-minute meal period even though you are accommodating his request for a shorter break?

Ordinarily, lunch breaks must be 30 minutes or more to be unpaid. This is not one of those exceptions that would qualify as a special circumstance. The presumption is against the employer and an issue for litigation.

Sad but true: Accommodate employees by giving them a short lunch break without paying them and you most probably run afoul of the FLSA.

An alternative way to accommodate the employee and not set yourself up for FLSA liability is to allow the employee to waive his lunch break entirely (so no extra pay). Like many people, he can eat something quickly while walking or working. That assumes you are not in a state where breaks are mandated and cannot be waived.

The Desk Diner

A different scenario: An employee takes her 30-minute meal break at her desk because she likes to be alone and read. It is her "quiet time." However, if the phone rings, she will answer it. And if her boss is out of town, she will check her boss’s e-mail occasionally over lunch to make sure there are no emergencies. Is her lunch compensable?

There is always a risk that employees will be tempted to work if you allow them to remain at their desks or in their general work areas. While the federal DOL allows a de minimis exception, what is de minimis is determined in the aggregate (looking at day after day). Plus, not every state recognizes the de minimis exception.

Accordingly, if you are going to allow employees to remain at their desks or work areas during lunch, make explicit in writing that they cannot do any work of any kind during their lunch break. To take away the temptation to work, consider instructing them to turn the computer off and forward their phone calls to voice mail or to co-workers when they eat at their desks. This feels awkward but is less onerous than defending a collective action.

If employees do any work during their lunch, you may have to pay them for the entire lunch break (since they did not get 30 minutes of uninterrupted time)—not because you were flouting the law but because you were flexible and they were earnest.

Consider a timekeeping attestation at the end of the day that asks employees whether they did any work during their unpaid meal break. If they say yes, pay them but monitor them. If they say no but later claim they did, you have a strong defense, provided that management did not have actual or constructive knowledge of any alleged work done during the meal break. Supervisory training on this issue is critical.

Overeager Workers

Your employees get 30-minute lunch breaks. They are working on a major project for an important client, so many return to work before the 30 minutes are up. Most return between 25 and 30 minutes after logging out for lunch. Of course, they get paid as soon as they log back in to work.

The fact that the employees are eager to return to work most likely is not a special circumstance. The irony is that your best and more diligent employees may be your problem here.

Three possible solutions are available—none of which is particularly appealing but all of which are more desirable than a collective action.

Have the timekeeping system prohibit logins before the 30 minutes have expired and make sure no work is done until the minutes are up.

Have a supervisor monitor when employees return from lunch to prevent early returns.

Monitor, pay and discipline those who return early.

State, Federal Law Conflicts

Some state laws require an unpaid 20-minute rest break every day. Say the employer provides its employees with a 20-minute break in accordance with state law. How do you respond to the federal DOL when it tells you that the rest period must be paid according to the FLSA?

For example, under West Virginia law, employers must provide an unpaid 20-minute break during a workday of six hours or more. Under West Virginia law, bona fide breaks are not work time.

But even if breaks are unpaid under state law, they may be compensable under federal law. If you are required to provide a 20-minute unpaid rest break under state law, increase it to 21 minutes so you can argue that it should be unpaid under federal law, too.

The safest approach is to pay for all breaks that are less than 30 minutes. While that may mean a longer day for your employees, it will result in less time for you fighting in court.

Sneaky Smokers

Last example: An employer prohibits smoke breaks other than during lunch. A few employees sneak smoke breaks that average three minutes before and after lunch. When the employer discovers this, it tells the employees that it won’t pay for their smoke breaks and that they must clock in and out for smoke breaks; otherwise, they will be fired. Is this a lawful alternative to discharge?

There is no duty to provide smoke breaks. You can discipline employees for taking them, up to and including discharge.

What you cannot do is provide short smoke breaks that are unpaid. Smoking without permission is a rule violation that must be dealt with through performance management, not through compensation reduction.

What if the employee asks for the break as an accommodation because, after all, smoking is addictive?

Sorry, no dice. We don’t have to give Jack Daniels breaks when employees depend on alcohol, and we don’t have to give smoke breaks to those who depend on nicotine. That may be the only break the law gives us.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law.

 
 
 
 

Wage and Hour Implications of the Government Shutdown


I am pleased to post a guest blog I wrote for the Philadelphia Business Journal regarding the wage and hour implications of the government shut down:

http://www.bizjournals.com/philadelphia/blog/guest-comment/2013/10/how-the-government-shutdown-can-impact.html

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 
 
 
 

Fish Don't Know They Swim in Water


It is with pleasure that I share with you this blog on corporate culture I wrote for SHRM's We Know Next. http://weknownext.com/blog/fish-dont-know-they-swim-in-water

Thank you,

Jonathan

 
 
 
 

Common Pitfalls: The Devil Is In The Details; Regulatory Compliance


Here are 10 common or potential regulatory hurdles that may confound employers:

1. Under the Fair Labor Standards Act (FLSA), a meal period of less than 30 consecutive and uninterrupted minutes is work time unless "special conditions" exist. Be prepared to litigate hard to establish those special conditions. Bon appetit.

2. What constitutes "exercise of discretion and independent judgment" for the administrative exemption? The FLSA definition is as clearas mud.

3. The FLSA does not permit docking pay for exempt employees who are ready, willing and able to work when the employer shuts down, for example, for holidays or weather emergencies. Don't jeopardize exemptstatus by treating these employees like nonexempts.

4. Expect more age discrimination claims as some Baby Boomers postpone retirement and others re-enter the workforce.

5. Under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission all but suggests that employers should assume that an employee has a disability, ensure nondiscrimination andmake accommodations where reasonable. Expect the EEOC--and probably many courts--to spend less time on threshold coverage questions.

6. When it comes to making hiring decisions based on criminal records, the EEOC prefers that employers make individual assessments. Theagency's aggressive position will be tested in the courts.

7. Family and Medical Leave Act regulations allow employees to take extraordinarily short periods of leave. Unscheduled intermittent leave continues to flummox employers, but call-in policies can help.

8. Employers cross the border into problematic territory for not purging 1-9 forms when permitted, if such forms are not in compliance.

9. The Uniformed Services Employment and Reemployment Rights Act requires employers to work to re-employ service members. They have to track factors from compensation to promotions employees would have received had they not been on military leave.

10. Proposed rules for the Labor-Management Reporting and Disclosure Act would make those who advise employers "indirect persuaders." That means an employer might have to report that a lawyer gives adviceon how to stay union-free. This arguably is a government intrusion into attorney-client privilege.

The author, a contributing editor of HR Magazine, is a partner with Duane Morris, a Philadelphia. based law firm. 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

 
 
 
 

DMi 2013 WINTER WEBINAR SERIES


WELCOME TO THE NEW YEAR! 

Webinars begin January 22 with

Tough Love:  What Your CEO Won’t Tell You About HR But I Will (Jonathan Segal)  STRATEGIC HRCI APPROVED

Check out all of our offerings here.   Happy New Year!

 

 

 
 
 
 

Is There Room for Humanity in HR?


I am pleased to post my recent blog for SHRM's We Know Next: http://www.weknownext.com/blog/is-there-room-for-humanity-in-hr

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

 

 
 
 
 

Santa and The FLSA by my colleague: NATALIE HRUBOS


Santa and the FLSA – Natalie F. Hrubos – 12-16-12

 

 

Delivering presents to the well-behaved children all over the world in a single night is hard work.  Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of nine flying reindeer.  But does that mean he is any less entitled to compensation? Of course not!  Let’s just assume that Santa’s employer – the North Pole, obviously – is covered by the Fair Labor Standards Act (FLSA).  To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

 

 

First, is Santa’s position exempt or non-exempt?  There’s no doubt that Santa works more than 40 hours per week during the holiday season.  Think of all the letters pouring in from kids across the globe.  Think of how much time it takes to figure out who’s been naughty and who’s been nice.  The guy sees you when you’re sleeping.  If Santa’s non-exempt, the North Pole owes him some serious overtime. 

 

 

Santa may qualify for one of the FLSA’s white collar exemptions.  For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise, he customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer.  But if it’s really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

 

 

Santa may however qualify for the administrative exemption.  He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

 

 

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole.  But how clean must a child’s bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings?  And what if she tells the truth most, but not all of the time?  Santa necessarily uses his discretion and independent judgment when making these determinations.

 

 

That said, to qualify for the exemption, Santa’s primary duty must be the performance of office or non-manual work.  Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered non-exempt, manual work.  But Santa does that only one night per year.  Responding to letters from children could qualify as office work, but is that Santa’s primary duty and is it directly related to the running or servicing of the North Pole’s business?  If either answer is no, Santa may not qualify for the administrative exemption. 

 

 

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn’t mean Santa qualifies as exempt from the FLSA.  If he doesn’t meet the duties test for one of the FLSA exemptions, Santa is non-exempt and must be paid overtime compensation for every hour he works over 40 hours per week.

 

 

If Santa’s position is non-exempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk and cookie breaks, whether Santa is “on the clock” when he’s using his iPhone to check in with the head elf, and whether his travel time to and from the North Pole and from house to house is compensable.

 

 

In some cases, the law of the North Pole may be more restrictive than the FLSA and Santa’s employer will be required to comply with whichever law is more beneficial to employees.  The same is true with state law.  For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement. 

 

 

It doesn’t take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season.  But even if you’re not the North Pole, you don’t want to be on the wage and hour naughty list.  Much like Santa, costly wage and hour lawsuits keep coming to town, so check with counsel on how best to review and if necessary correct your pay practices. Happy holidays!

 

 

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT PRIVILEGE.

 

 

 
 
 
 

Time is Money: On or Off the Clock Work?


As published by SHRM's HR Magazine:.  

12/1/2012  By Jonathan Segal 
 
 

Time Is Money: On or Off the Clock?  Vol. 57     No. 12  Many managers still don’t understand the Fair Labor Standards Act.  

12/1/2012 

 

 

 

By Jonathan Segal 

 

 

 

 

 

 

 

Virtually every week I hear about another employer allegedly requiring, encouraging or tolerating situations in which nonexempt employees are working off the clock. Even large employers with robust compliance programs are not immune to such legal missteps.

 

Of course, it is not just larger employers being sued. Employers with relatively few workers—that literally cannot afford the cost of defense—are being sued, too.

 

The goal for employers is not to win "off-the-clock" cases but to avoid them.

 

Consider these suggestions for minimizing your exposure to such claims and maximizing your chances of winning if such a claim is brought.

 

Basic Principles

 

Some strategies for avoiding off-the-clock cases should take employers back to the basics, including training and retraining, enforcing policies that prohibit off-the-clock work, and encouraging managers to report suspected off-the-clock work to HR.

 

Train and retrain.

Provide supervisors with training that makes clear they cannot require, encourage or even suggest that nonexempt employees work off the clock.

 

The most important message to convey is that supervisors cannot direct someone to work off the clock, explicitly or implicitly. Also, include guidance on how to address restrictions on overtime.

 

The untutored have said, "We cannot pay for any overtime." Some employees have heard "work it but don't record it."

 

Where overtime is not permitted, make clear that "No one is permitted to work any overtime" as opposed to saying, "We cannot afford any overtime."

 

Let supervisors know that if they break the foregoing rule, they will be subject to discipline up to and including discharge.

 

Carry a big stick.

Let supervisors know that if they require, encourage or even suggest that an employee work off the clock, they will be subject to discipline up to and including discharge. This prohibition will help prove that deviations were those of a rogue supervisor and not part of an established corporate culture.

 

Make clear that among the most serious violations would be altering an employee's time to reduce the amount owed to him or her to stay within budget. Almost always, such "wage theft" should result in immediate discharge.

 

Don't go it alone.

Train supervisors to report incidences to HR if they know, or have reason to know, that an employee may have worked off the clock, even if the employee has not said anything.

 

In harassment cases, it is not enough to avoid objectionable conduct. If employers have actual or constructive knowledge of it and ignore it, they are condoning it. Doing nothing is not a defense; it is an admission.

 

The same principle has been adopted in the wage and hour context. Even if employers don't require, encourage or suggest that an employee work off the clock, employers cannot allow it if they have reason to believe it may have occurred.

 

Supervisors need training on the obligation to report to HR potential off-the-clock work so that HR professionals can talk with the employee and determine whether and what is owed to him or her. If there is a pattern of working extra hours without permission, this may be cause for discipline of the employee, but the employee almost always should be paid.

 

Clear Policies

 

Don't leave employees guessing about the organization's policy on off-the-clock work. Spell out the employer's policy on payment for time worked, but make it clear that off-the-clock work is not permitted and that there may be disciplinary action for it. That said, set up a process encouraging employees to report off-the-clock work to HR without fear of retaliation.

 

Pay up.

Develop a procedure HR professionals can use when they speak with employees who report off-the-clock work.

 

Use the procedure to determine if they are telling the truth, and then make sure they are properly paid.

 

If a supervisor reports that an employee has or may have worked off the clock, an HR professional should contact the employee. HR needs to determine whether the employee performed any off-the-clock work and how much time is involved. An appropriate adjustment must be made.

 

Sometimes, HR professionals make the mistake of assuming that no money is owed as long as the employee does not go over 40 hours in a workweek or eight hours in a day in California. Payment may be owed for off-the-clock work, even if the employee does not become eligible for overtime.

 

For example, assume that an employee is paid a salary for working 35 hours for a workweek. If the employee works additional hours but is short of 40, the employee generally must be paid for the "gap time."

 

Be specific.

Develop a policy that prohibits off-the-clock work. Leave no doubt that employees must record all time worked.

Make clear that you will not tolerate any off-the-clock work.

 

Make clear that you will not tolerate any off-the-clock work and that all work must be on the clock.

 

A general rule is not enough. Spell it out. For example:

 

An employee may not do any work before clocking in, and, if he or she does, management must be contacted to override the start time so that he or she will be paid for all time worked.

 

An employee may not do any work after clocking out, and, if he or she does, management must be contacted to override the stop time so that he or she will be paid for all time worked.

 

Have an open-door policy.

Develop a complaint procedure with appropriate assurances of nonretaliation so that employees can report concerns without fear of retribution.

 

There must be a strong policy and a robust complaint procedure. Contacting their supervisors should not be employees' only option. After all, supervisors often are the perceived perpetrators.

 

At a minimum, employees should be given the option of speaking with HR as an alternative. Employers may want to go one step further and provide another option outside of HR, just in case the problem employee works for HR.

 

Of course, the policy should prohibit retaliation, which should be defined broadly. If employees don't feel comfortable raising their concern in-house, they could consult with a plaintiffs' lawyer and you could end up in court.

 

Automated Backup

 

Technology can be HR's friend or foe in preventing off-the-clock work. On the one hand, time-keeping systems may be adjusted to provide HR with notifications about interrupted meal breaks or other off-the-clock work

.

 

While technology may facilitate telework, however, telecommuting poses unique compliance risks to employers, particularly regarding their nonexempt employees.

 

Tweak time-keeping system.

 

Determine whether questions should be included in your time-keeping system that ask employees if they have done work off the clock, so that you can follow up with the employees, capture any time worked but not recorded, and then pay them for it.

 

Most employees are honest, but some are not. How do you protect yourself against those who may claim later that they worked hours off the clock but then bring bad-faith claims?

 

Most modern time-keeping vehicles include the potential for questions at the beginning or end of each shift. The answers may be helpful in ensuring that employees are paid in real time, as they should be, and in defending against false claims.

 

For example, at the beginning of every shift, employees can be asked before they clock in if they have done any work since they clocked out on their last shift. If they answer yes, HR should receive notification and speak with the employees.

 

Similarly, at the end of the day, ask a question about the employee's meal break, such as "Did you enjoy an uninterrupted meal break of 30 consecutive minutes?" If the answer is no, either HR would be contacted to determine if payment is owed or the unpaid meal break would be automatically converted to paid time.

 

If an employee who responds affirmatively to the meal break query later claims that he or she was interrupted almost every day but not paid, any subsequent allegations are inconsistent with his or her prior answers, sometimes referred to as attestations. This should weigh heavily against an employee's credibility.

 

Limit telework.

Establish clear rules about whether and when employees may work remotely, such as checking e-mail, and how to ensure that time is properly documented and paid.

 

Sometimes it is your hardest-working employees who can cause trouble in this area because they log in at all hours and perform work. While their intentions are likely noble, you could pay a handsome price for such dedication.

 

Set boundaries for remote work, even for stellar employees. For example, you could block remote access to your network by nonexempt employees. Or, you could allow access only if approved and provide guidance on how to record the time to ensure proper payment.

 

A similar issue arises with personal digital assistants. The safest policy legally is to deny your nonexempt employees smartphones, BlackBerry devices and the like. But is that smart from a business perspective?

 

There may be times when nonexempt employees need these devices, so set limits as to when they can use the devices and pay them appropriately.

 

For example, you might set a specific block of time outside of working hours when a marketing employee away on business can use his or her BlackBerry. If you allow such periodic use, under the continuous day rule your duty to pay could be continuous, too.

 

Even if you have not developed specific policies yet, if you have reason to know an employee may have done work remotely, you must speak with the employee and pay him or her accordingly.

 

To illustrate this point: A client forwarded me an e-mail from her assistant regarding information that we needed to respond to a U.S. Equal Employment Opportunity Commission charge. The message was "Good news. See below."

 

My response: "Not really. See when your nonexempt assistant sent it to you!"

 

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT PRIVILEGE.

 

 

 

 

 

 
 
 
 

Employees with Extended Shifts and Sandy: Wage and Hour Issues


Some employees may be required to stay on site for extended periods of time as a result of Sandy.  Here is summary of the FLSA payment rules for non-exempt employees from the DOL website:

Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

Keep in mind state law may be more restrictive and employers must comply with whichever law is more beneficial to the employees. Indeed, many state regulations provide that employes must be paid for all time they are required to remain on the employer's premises. 

Stay safe! 

This blog should not be construed as legal advice, as applying to specific factual situations or as creating an attorney-client relationship

 

 

 

 

 

 

 

 

 

 

 
 
 
 

Avoiding Wage and Hour Hurricanes After Sandy


At the risk of being jaded, it seems that, after every natural disaster, plaintiffs' lawyers follow.  So, now is good time to brush up on wage and hour rules relatives to closings that may result from Hurricane Sandy:

 1.      As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close. [Note: general rule most probably would not apply to sick days; same is true for #2 below]. 

2.        If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she works from home.  

3.         No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.

4.         Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed. 

5.        Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.

6.        Keep in mind state law may impose additional requirements or restrictions. For example only, in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours' pay the employee must receive.

7.   Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

8.   Be safe: http://www.cdc.gov/Features/HurricanePreparedness/?s_cid=tw_DrCP38

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATINSHIP

 
 
 
 

Meditate and Then Read: Off Duty Policies and the NLRB


As published by SHRM's We Know Next: my latest article can be found here.

Many employers have rules that prohibit employees from returning to work while they are not on duty.  These rules are designed to keep order but they also have the effect of limiting employee access to engage in union activity while off duty.

The NLRB has long held that a rule barring off-duty employees access to the workplace is valid only if:

  1. It is limited solely to the interior of the facility
  2. It is clearly disseminated to all employees (so it must be in writing)
  3. Is applied to off duty access for all purposes, not just union activity. Tri-County Medical Center, 22 NLRB 1089 (1976).

In addition to the above, the policy must not be implemented in response to union activity. Otherwise, the Board will find anti-union animus.

Last year, the Board applied Tri-County to a case in which employees were called back to Company-sponsored events, such a retirement party or baby shower.  The Board held that the employer’s inviting off duty employees to return to the Company’s premises violated the rule so that it could not be applied to employees returning to the premises to engage in union activity.  Saint Johns’ Health Center, 357 NLRB NO.  170 (2011)

The Board objected to the employer’s reservation of its right to invite employees to return to its property whenever it wanted.  “The employer is telling its employees, you may not enter the premises after your shift except when we say you can.”

The Board obviously ignored the difference between the “employer acting as employer” providing direction to its employees and the employer acting as “traffic cop” in terms of when off duty employees can return to the workplace on their own initiative.  The NLRB’s analysis makes sense to me when applied to the latter but not so when applied to the former.

The message from the Board’s decision:

  1. Do not include a broad reservation of rights unless you want the Board to say you have no rights.
  2. If you want to host a special event, such a holiday or retirement party, consider a local restaurant or other location.  It is not without cost but inviting employees back to your workplace while they are off duty is not without risk either.

Note:  calling “on call” employees into work is not asking them to return off duty. To the contrary, you are asking or requiring that they be on duty. 

Last month, the Board decided another case involving off duty employees, Sodexo America LLC, July 2, 2012. The employer in the case is a hospital and it had an off duty policy that included three (3) exceptions:

  1. Visiting a patient
  2. Receiving medical treatment
  3. Conducting hospital-related business

The Board held the first two exceptions did not violate Tri-County.  Critically, in those circumstances, when the employees returned to the workplace in a different capacity, they were treated like all other non-employees. For example, when employees were visitors of patients, they complied with all of the rules which applied to other visitors, such as wearing a badge and having only the same access as non-employee visitors.

However, the Board held the third exception violated the NLRA.  The Board “reasoned” the rule violated the NLRA because it gave the employer “free reign to set the terms of off duty access.” The Board noted in a footnote that even something as “innocuous” as allowing employees to pick up pay checks may render a rule lawful on its face discriminatory in its application.

Again, what does this mean for employers:

  1. Be careful of reserving your rights in the policy or you may end up with no rights
  2. Make sure employees who return to work in a different capacity have no greater rights than non-employees and are subject to the same restrictions as them.  We all know that health care workers and retail workers are in the unions’ cross hairs. I already have discussed health care workers. What would this mean for retail workers? When they shop, they cannot access “employee only” areas for starters!

A difficult case is when an employee asks to return to work to pick up a paycheck.  Does this automatically give employees rights to access the property for other purposes?  The Board might say “Yes,” although hopefully a court reviewing the issue would say “No.” One simple solution is for the employer representative to meet the employee in the exterior of the building, if possible.

There are other difficult issues, such as allowing employees to return to the  premises to share a meal in a non-public cafeteria with family members or friends who also are employees of the company.  For example, a husband and wife work for employer.  Wife is working. Husband is off.  Husband returns off duty to have dinner with his wife in the company’s non-public cafeteria. This would appear to violate the Board’s all or nothing  “analysis.”  A victim of the NLRB’s assault on management rights could be family and other relationships.

In these cases, prohibiting such access may avoid the legal risk.  But it may create an employee relations problem which could serve as the catalyst for union activity.

It is policy that the Board’s analysis may apply beyond just off-duty employees. It could have broader implications for Solicitation and Distribution policies where the employer invites 3rd parties onto its property. But I will need to meditate more before I can write about that!

Employers need to evaluate carefully the current decisions by the NLRB recognizing that sometimes the most cautious legal approach is the riskiest in terms of employee relations.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 
 
 
 

Widening Web of Social Media


I am pleased to post an article I wrote for HR Magazine on minimzing the risks and maximing the rewards of social media: http://www.weknownext.com/trends/widening-web-of-social-media

Thank you to SHRM's We Know Next for tweeting the article!

Jonathan

This blog should not be construed as legal advice, as pertaining to specific factual sitautions or as establishing an attorney-client relationship.

 
 
 
 

Off-the-Wall Judgments/Settlements in Off-the-Clock Cases


Virtually every week we hear about another employer allegedly requiring, encouraging or tolerating non-exempt employees working off the clock.  Even large employers with robust compliance programs are not immune to such attacks.  It takes just one manager to edit down an employee’s time to stay within budget—true wage theft—and the legal ball may start rolling.

It was an honor to have published an article for Fortune  on wage and hour issues in general and off-the-clock issues in particular:  http://management.fortune.cnn.com/2012/05/29/the-new-workplace-revolution-wage-and-hour-lawsuits/

Here are 10 steps you can take to minimize your legal exposure to off-the-clock cases:  

1.         Train supervisors that they cannot require, encourage or even suggest that non-exempt employees work off-the-clock.

2.         Let supervisors know that, if they break this rule, they will be subject to discipline, up to and including discharge.

3.         Train supervisors to report to HR  if they know, or have reason to know,  that an employee may have worked off-the-clock (even if the employee has not said anything).

4.         Develop a procedure by which HR speaks with employees about whom reports are made to determine  if they have worked off-the-clock and then sure that they are properly paid.

5.         Develop a policy that prohibits off-the-clock work which makes clear that employees must record all time worked.

6.         Develop a complaint procedure with appropriate assurances of non-retaliation so that employees can report concerns that they may have in this area without fear of retribution (broadly defined).

7.         Determine whether  question(s) or attestation(s) can be included in your time keeping system that asks employees if they have done any work off-the-clock so you can follow up with the employees, capture any time worked but not recorded and then  pay them for it.

8.         Establish clear rules about whether and when employees can work remotely, such as checking e-mail, and how to ensure time is properly documented and paid.

9.         Establish clear rules on when overtime can be worked (for example, only with permission or if emergency circumstances); if an employee works overtime that he should not have, manage his/her performance, not his/her pay.

10.       Review supervisory changes/edits periodically to make sure that supervisors do not reduce the time of their subordinates so that they come in under budget.

Of course, some of these are best practices as opposed to legal mandates.  But best practices in this area can save a lot of money.

Under federal law, if a violation is found willful, you may be required to pay double what is owed to the employee, interest and two sets of attorneys’ fees, yours and the employees. Plus, a longer statute of limitations may apply.

And, under federal and state law, in some cases, there can be criminal liability.

Plus, state law damages may be even greater.

Have your attention?

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.  

 

 
 
 
 
 

Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.