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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
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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:.
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Time Is Money: On or Off the Clock? Vol. 57 No. 12 Many managers still don’t understand the Fair Labor Standards Act.
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.
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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
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:
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:
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:
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:
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.
Wage and Hour Revolution
It is an honor to post my first article for Fortune/CNN: http://management.fortune.cnn.com/2012/05/29/the-new-workplace-revolution-wage-and-hour-lawsuits/
This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing attorney-client relationship.
Thank you.
DMi - Remaining Programs for Spring 2012
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Costly Unpaid Internships
As originally published by SHRM's "We Know Next," found here.
An important customer, client, colleague or business partner asks an executive if her son can intern with your company for the summer. Don’t worry about the money, she says. My son is only looking for the experience.
As we approach the summer, expect more of these requests. I personally have received quite a few already!
Sounds like a classic “win-win.” The intern learns something and you strengthen an important relationship at no cost. So, the executive says “of course.” Not so fast, please!
There have been several recent high-profile cases in which interns have alleged that they were really employees and should have been paid. While mere allegations do not mean actual liability, the fact is that the Department of Labor and the plaintiffs’ bar are focusing very closely on this issue.
In September 2011, a case was filed against Fox Searchlight Pictures, Inc. by two interns who had worked on the production of “Black Swan.” They claim that they were misclassified as unpaid interns and that they should have been paid.
In February of 2012, an unpaid intern who worked for Harper’s Bazaar sued Hearst Corporation, the publisher of the magazine, claiming that her unpaid internship did not meet the internship requirements, and she should have been paid.
And, just last month, a class action suit was filed against Charlie Rose and the production company Charlie Rose Inc., alleging that unpaid interns who worked for the Charlie Rose Show should have been compensated saying they were really employees, not interns, under the federal Fair Labor Standards Act (FLSA).
Under FLSA, six requirements must be met for an individual to qualify as an intern. Take the time to read the regulations now or you may find yourself reading them later -- responding to a DOL audit or answering a complaint.
The six requirements are:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Of the six factors listed, the fourth is typically the hardest to meet. It requires that the employer not receive any real benefit from the intern’s “work,” and that, at times, the intern’s presence actually impedes operations. Ouch.
So, talk with your executives. Let them know that before they say yes to an offer that sounds too good to be true, they should check with you -- because it may be too good to be true. You don’t want your unpaid internship to make a plaintiff's lawyer rich at your expense.
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 ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP
Sisyphus Had It Easy
by Jonathan Segal on November 9, 2011
In Greek mythology, Sisyphus was a king punished by being compelled to roll an immense boulder up a hill, only to watch it roll back down. No matter what he did, Sisyphus could not get to the top of the hill.
We can all feel Sisyphus' pain as HR and other executives. We are constantly rolling up against regulatory boulders, plaintiffs' lawyers and labor unions marketed by the NLRB.
But Sisyphus had it easy in one respect. He did not have to worry about the FLSA.
We are in the middle of a wage and hour revolution. More specifically:
The number of FLSA cases filed per year has nearly quadrupled since the late 1990's
DOL back wages collected in 2010: $175,652,665
Employees receiving back pay wages in 2010: 208,615
DOL concluded cases in 2010: 26,815
FLSA cases filed in district courts in 2010: 6,081
FLSA cases filed so far in district courts in 2011 so far are close to 5,000.
One of the most common allegations is that employees are required to work "off the clock" but are not paid. Indeed, it is often now referred to as wage theft.
Although only one area of exposure, it is a big one. And, it is one that can be addressed readily quickly and easily.
Here are five recommendations that will minimize your organization's exposure in this area:
Remember, earlier this year, the U.S. Department of Labor announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. The DOL also has even developed and published an old fashion hard copy calendar for employees to use to record their time.
Want to trade roles with Sisyphus for a day?
This blog post should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship.
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group . He is also the managing principal of the Duane Morris Institute . The Duane Morris Institute provides training for human resource professionals, in house counsel, benefits administrators and managers at Duane Morris, at client sites and by way of webinar on myriad employment, labor, benefits and immigration matters. Read Jonathan's blog at the Duane Morris Institute or follow him on Twitter @Jonathan_HR_Law .
