2012 Winter Webinar Series - CLE APPROVED CA, FL, NJ, NY and PA
2012 Winter Webinar Series
THE DOL AND SMARTPHONES: BE SMART AND TAKE THE OFFENSIVE
Last week, the DOL issued guidance on how employees can use smartphones to keep track of their time (which could aid employees in investigations and or lawsuits). You have to read it yourself to believe it:
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. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.
For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.
The DOL also has proposed an old fashion hard copy calendar for employees to use to record their time. See http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdfse.
The DOL also includes guidance on what constitutes time worked. For example, the DOL states: “Generally, you should know that your employer must keep records of all wages paid to you and of all hours you worked, no matter where the work is done.”
Some have interpreted the recent DOL guidance as not simply an advisory on the law but rather as encouraging employees to file wage and hour complaints and providing them with exhibits to do so. Regardless of the DOL’s intent, the effect likely will be to increase the number of claims by employees for hours allegedly worked but not paid.
We already are in the middle of a wage and hour pandemic. Consider the following:
· The number of FLSA cases filed per year has nearly quadrupled since the late 1990’s.
· The number of FLSA cases filed in federal district courts has more than tripled in the past few years, from 1,920 cases in 2000 to 6,754 cases in 2006.
· 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: 2,278 (as of May 16).
Expect the recent actions of the DOL to accelerate the trend.
While most employees are honest, it would be naïve to assume all are. Dishonest employees may use the new DOL tools to claim that they worked hours that they did not.
It is absolutely critical that employers have complete and accurate records of all time worked by employees and that employers pay employees for such time. If an employee works time that is unauthorized, pay him or her for the work but then counsel/discipline him or her for doing what was not authorized.
In particular, just as the DOL has encouraged employees to do, employers need to address work “no matter where it is done.” More specifically, employers should make clear whether and when employees are permitted to work remotely and, if so, how they should record their time so that they can be properly paid.
Moreover, employers need to make sure that employees know that they cannot do any work off the clock and whom they should contact if any manager or supervisor requires or even suggests that they work off the clock. Managers need guidance too on the need to contact HR or Payroll if they know or have reason to believe an employee is working of the clock.
If you are not sure whether you should review your wage and hour policies, practices and communications to make sure they are complete and compliant, please re-read this blog.
PHILADELPHIA’S BAN THE BOX PLUS FEDERAL AND STATE LAWS TOO
PHILADELPHIA’S BAN THE BOX PLUS FEDERAL AND STATE LAWS TOO
On April 13, 2011, the Mayor of the City of Philadelphia signed an Ordinance entitled “Fair Criminal Record Screening Standards” which establishes requirements for the screening of criminal records by certain employers within the City of Philadelphia and limits an employer’s ability to consider arrests and convictions of job applicants. The stated purpose of the legislation is to “give the individual with a criminal record an opportunity to be judged on his or her own merit during the submission of the application and at least until the completion of an interview.”
The Philadelphia Ordinance applies to city agencies and private employers of 10 or more people (employees) in the City of Philadelphia. However, even if an employer is covered by the Ordinance, it applies only to applicants who are applying for jobs in the City of Philadelphia.
The Ordinance makes it unlawful for an employer to make any inquiry about, to take any adverse action against any person on the basis of or to require any person to disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction.
The Ordinance goes a step further and limits the ability of an employer to consider even criminal convictions as part of the early stages of the application process. The Philadelphia Ordinance makes it unlawful for employers in the City of Philadelphia to make any inquiry regarding or to require any person to disclose or reveal any criminal convictions during the application process, which begins when an applicant inquires about employment and ends when an employer has accepted an employment application.
What’s more, the employer cannot make an inquiry regarding or require a person to disclose or reveal any criminal convictions before and during the first interview either. If the applicant voluntarily discloses any information regarding his or her criminal convictions at the interview, the employer may discuss the criminal conviction disclosed by the applicant.
The Ordinance becomes effective ninety days after it was signed into law, in other words, on July 13, 2011.
Violations of the Ordinance will carry a fine of up to $2,000 per violation. Further, it is inevitable that violations of the Ordinance will be argued as the basis for wrongful failure to hire claims.
What This Means For Employers
Employers in Philadelphia will need to remove from their Applications for Employment any questions about criminal convictions (except where required by another law, in which case a separate application with an appropriate question consistent with the legal requirement must be developed for such applicants only).
Employers in Philadelphia who wish to inquire about criminal convictions will need to develop a criminal conviction inquiry form (focusing only on convictions) to give to applicants who have completed their first interview and to whom they wish to extend either a second interview or a job offer.
In this regard, employers should be careful to avoid the temptation to give the criminal conviction form to all applicants immediately following their initial interview to make things easier administratively. Why obtain information about applicants in whom you have no interest? Applicant may assume--and argue--the information was the basis for adverse action (even though it was not). At a minimum, there is the cost of defense.
Philadelphia employers must consider not only the Fair Criminal Record Screening Standards Ordinance, but also the Pennsylvania Dissemination of Criminal History Records Information Act, which restricts when Pennsylvania employers can consider criminal records and includes notice requirements.
Under the Pennsylvania Dissemination of Criminal History Records Information Act, employers can consider felony and misdemeanor convictions only if they relate to the applicant's suitability for the job for which he or she has applied. Further, the employer may be precluded absolutely from considering arrest records (which have not resulted in convictions) as part of the pre-employment process.
Further, both the EEOC and PHRC have released guidance which states that disqualifying applicants due to arrest or conviction records may have a disparate impact on certain racial and ethnic groups, and therefore, have suggested similar (but not identical) factors which should be considered before making any adverse employment decision upon a criminal record.
Employers need to be particularly careful of per se rules (for example, individuals with felonies are disqualified from employment for all jobs). These rules maximize consistency but also may serve as the basis for class actions alleging disparate impact.
According to the National Employment Law Project, at least five (5) major civil rights lawsuits were filed against employers for blanket prohibtions relating to criminal convictions.
If you have questions about how the various laws affect criminal conviction checks, please feel free to contact me at 215-979-1869 or firstname.lastname@example.org.