Staff-Line Blog

Staff-Line will be writing blog posts that we hope will be beneficial to our readers. Please feel free to make comments or ask questions. We will do our best to personally answer everyone who comments to these articles. Please let us know if they are helpful to you.

Connecticut restricts use of credit reports for employees and applicants

Published by Ed Kowalski on November 7th, 2011 in category General, Management | Comment now »

Adding to the growing number of states limiting employers’ use of credit reports, including Hawaii, Washington, Oregon, Illinois, and Maryland), Connecticut recently passed Public Act No. 11-223 restricting employer use of credit reports and credit history for employees or job applicants. The Connecticut law goes into effect October 1, 2011, and prohibits employers from requiring an employee or job applicant to consent to a request for a credit report “as a condition of employment.” This includes reports that contain information about credit score, credit account balances, payment history, savings or checking account balances or savings or checking account numbers.

The law has four exceptions. Paraphrasing from the law, employers may request credit data if:

The employer is a financial institution;
A report is required by law;
The employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of the law related to employment; or
Either (a) a report is substantially related to the job or (b) the employer requests the credit report for a bona fide purpose that is “substantially job-related” and discloses this purpose in writing to the employee or applicant.

Regarding the last exception, the law broadly defines “substantially related to the job” to mean that the information contained in the credit report is related to the following: a managerial position that involves setting direction and control of the business; a position that involves access to customers, employees or the employer’s personal or financial information (other than retail transaction information); involves a fiduciary responsibility to the employer; provides an expense account or corporate debit or credit card; provides access to confidential or proprietary business information; or involves access to the employer’s nonfinancial assets valued at $2,005 or more, including but not limited to, museum and library collections and to prescription drugs and other pharmaceuticals.

Job applicants and employees may lodge complaints alleging violations of the law with the Connecticut Labor Department. Employers will be liable to the Labor Department for a civil penalty of $300 for each improper request for a credit check. The Connecticut Attorney General can bring civil actions to recover penalties brought by the Labor Department.

As a result of these new restrictions, Connecticut employers should review hiring policies, and other policies that require employee credit information, and prepare to comply with the law by October 1, 2011.

Connecticut first state in nation to mandate paid sick leave

Published by Ed Kowalski on June 22nd, 2011 in category Management | Comment now »

Service workers entitled to up to 5 days per year

On June 8, Connecticut Gov. Dannel Malloy signed into law legislation mandating paid sick leave for certain employees.

Public Act No. 11-52 requires employers of 50 or more employees to provide up to five paid sick days per year to service workers. Occupations covered by the law include bus drivers, food service workers, home health aides, nurses, retail salespersons, administrative assistants, restaurant servers, and others.

Employees earn one hour of sick time for each 40 hours worked. Service workers who receive at least five paid days per year (e.g., vacation, personal days, paid time off) are not covered by the law if they can use those days for sick leave.

The law goes into effect January 1, 2012.

DOL and iPhone Wage And Hour Application

Published by Ed Kowalski on June 16th, 2011 in category Management, Management Tips | Comment now »

The U.S. Department of Labor (DOL) launched an application for the iPhone, iPod touch and iPad to help employees track their own work hours and independently determine the wages employers owe them.

The app is available in Spanish and English and tracks regular work hours, break time and overtime for one or more employers. The app also provides a glossary of terms, contacts and links to the DOL’s Wage and Hour Division. Users can add comments to reports and email their summary of work hours and gross pay as an attachment.

According to Secretary of Labor Hilda L. Solis, “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.” According to the DOL’s press release, the information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

A printable version is available for workers without a smartphone. The printable work hours calendar tracks rate of pay, work start and stop times and provides easy-to-understand information on how to file a wage violation complaint.

To download the app or calendar go to ITunes, DOL-Timesheet. “Keeping track of wages: the U.S. Labor Department has an app for that!” www.dol.com (May 9, 2011).

Commentary and Checklist

Workers filed a record number of wage and hour lawsuits against their employers in 2010. Approximately 700 more lawsuits were filed in 2010 (nearly 6,800) compared to 2009 and most were class actions according to Seyfarth Shaw, a law firm specializing in labor law.

The DOL has hired about 350 new investigators to follow up on wage and hour violations.

In addition to the new app, the DOL is providing an attorney referral service run by the American Bar Association (ADA) for those wage and hour cases that the Department decides not to take. The DOL defends this measure because they get more than 35,000 calls a year for help and don’t have the resources to deal with every claim. To learn more about the Attorney Referral program, visit the Wage and Hour webpage.

Employers should have a legitimate concern about the new wage and hour app. The information recorded on the app is only as reliable as the users entering the information. There is nothing to prevent workers from entering false information and later challenging their employer’s records against information stored on the app. With a simple push of a button, they can send their independently recorded time sheets to the DOL.

Having one source for determining what hours an employee works is important because it records all employee hours and not just the hours of one employee. The other argument against the new app is that it sends a wrong signal-employees should not trust their employers.

When conflict arises between what an employee records and what an employer records as hours worked, contemporary testimony from other workers about the employee’s hours will determine liability.

Finally, critics argue that the app can only do one thing - increase complaints with the DOL and wage and hour litigation. Another concern is that the app would legitimize time fraud. While the DOL is concerned with employers not recording employee hours correctly, why shouldn’t employers be concerned that employees will do the same using the application to make false or frivolous claims?

These are a few things employers can do to avoid wage and hour violations:

Are your exempt employees properly classified? Too many employers classify employees as exempt when they are really non-exempt.
Are your non-exempt employees receiving their overtime? All overtime, no matter how brief, must be accounted for and compensated.
Are your non-exempt employees receiving proper credit for all their time spent working on your behalf? Employers that hedge employee time, especially when an employee is on an employer’s premise, take a great risk.
Are your non-exempt employees receiving their breaks and other compensated time as required by federal and state laws? Laws differ, but many state laws require mandatory paid breaks during the day.
Are your employees receiving all the wages due to them? Class actions are emerging where employers unlawfully deducted money from employee checks.
Have you had an employment attorney review your wage and hour practices? If not, now is the time.

Nonprofit’s firing of employees for Facebook postings may have violated NLRA

Published by Ed Kowalski on May 25th, 2011 in category Management | Comment now »

A New York nonprofit has been cited by the National Labor Relations Board (NLRB) for discharging five employees in an alleged violation of the National Labor Relations Act (NLRA). The complaint alleges that a Facebook discussion the employees engaged in was protected concerted activity within the meaning of Section 7 of the NLRA, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including workload and staffing issues. After learning of the posts, the nonprofit discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

Unless the case is settled, the complaint will be the subject of a hearing before an administrative law judge on June 22.

Supreme Court Rules Oral FLSA Complaints Are Protected From Retaliation

Published by Ed Kowalski on May 9th, 2011 in category Management, Management Tips | Comment now »

An employee brought a retaliation lawsuit against his former employer claiming violations of the Fair Labor Standards Act (FLSA). The employee claimed that his employer placed time clocks in a location so that workers could not receive credit for the time they spent donning and doffing protective gear for work. When he orally complained about the location of the time clocks, he alleged that the employer fired him in retaliation.

The employer argued to the lower court that the FLSA only protects written complaints and filed a motion for summary judgment. The lower court granted the employer’s motion on a determination that the FLSA’s anti-retaliation provision does not cover oral complaints. The Seventh Circuit Court of Appeals agreed with the lower court and affirmed.

The United States Supreme Court reversed the lower courts on appeal. According to the highest Court, oral complaints regarding violations of the FLSA are protected by the Act’s anti-retaliation provision. The Court reasoned that limiting the coverage to written complaints undermines the Act’s basic objective which is to prohibit, “labor conditions detrimental to the maintenance of the minimum standards of living necessary for health, efficiency, and general well-being of workers.” The Court noted that enforcement of the FLSA relies on complaints received from employees to meet the objectives set out in the Act. Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 563 U.S. ___ (2011.)

Commentary and Checklist

The FLSA anti-retaliation provision, at issue in this case, makes it illegal to:

discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to (the Act), or has testified or is about to testify in such a proceeding, or has served or is about to serve on an industry committee. Section 215(a)(3).

The employer in Kasten argued that “filed any complaint” means that the complaint must be written to activate the anti-retaliation provision. The Supreme Court disagreed based on the purpose and intent of the statute.

Employers should take note that the new rule likely applies to other employment laws with similar anti-retaliation provisions. For example, OSHA is another law that contains similar anti-retaliation language.

So, what does this mean for employers?…While it is a good idea for employers to make sure that all complaints of wrongdoing are put into writing, the FLSA does not require it. Employees who make good faith reports of wrongdoing or participate in an investigation of alleged wrongdoing warrant protection from retaliation.

The struggle for employers is discerning when a person’s statements about the FLSA is a complaint or is simply a suggestion, concern or desire. For example, what if someone states to their manager that they wish to be paid more overtime. Does this comment rise to the level of complaint regarding the person’s overtime classification or is the person simply expressing a desire to earn more money?

Retaliation was the most common charge with the EEOC last year. The conduct of a manager may greatly increase his employer’s risk of liability with behavior or acts that give rise to a retaliation charges. One way for employers to avoid charges of discrimination and retaliation is to provide multiple avenues for employees to report wrongdoing without fear of reprisal. Managers should encourage rather than discourage reporting so that potential issues can be resolved before they escalate into serious problems.

Employers should also establish an open reporting system whereby employees can complain internally to their employer without fear of retribution or retaliation.

Below are additional steps you can take to guard your organization against claims of retaliation:

Enforce well-written policies that prohibit retaliation, including statements, gestures, symbols and threats.
Provide training for managers on retaliation and the rights of employees who have made claims of wrongdoing.
Encourage employees to report wrongdoing, including all types of discrimination.
Provide a method of reporting where employees have more than one channel to report wrongdoing.
Take all complaints of retaliation seriously and respond quickly

Recent Posts

Categories