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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.

 
 
 
 

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

 
 
 
 

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.

 
 
 
 

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

 
 
 
 
 

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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© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.