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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.

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

EEOC Issues Final ADAAA Regulations

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

On March 25, 2011, more than two years after the Americans with Disabilities Act Amendments Act (ADAAA) went into effect, the EEOC published final regulations to implement the law. The final regulations are effective May 24, 2011.

The ADAAA amended the Americans with Disabilities Act (ADA) to “reinstate a broad scope of protection” for individuals (i.e. applicants, employees, and former employees) by revising the definition of the term “disability.” The regulations also supply more detail on the terms used in that definition.

Employers should not focus on whether an individual’s impairment meets the definition of a disability, but rather on whether discrimination occurred. The changes should make it easier for employers to assess whether or not an individual has a substantially limiting impairment, which should not require extensive analysis.

As a result of these changes, employers will need to provide more reasonable accommodations. An increase in lawsuits is also expected.

Perils of having non exempt employees not punch in and out for lunch

Published by Ed Kowalski on March 18th, 2011 in category Management, Management Tips | Comment now »

It’s tempting to have employees work through lunch—there’s always more to be done, business doesn’t necessarily come to a stop at lunchtime, and anyway, management often works through lunch without additional compensation. So, why not other staff?

The “why not” is that management are generally exempt from the overtime pay regulations and are receiving a salary without regard to how many hours they work a week. Other staff (the receptionist, data entry clerks, administrative assistants, secretaries, billing clerks, customer service reps., etc., etc.) are “non-exempt” and need to (a) be paid for every hour they work and (b) have all hours worked counted towards potential overtime pay. That’s what seven of Philadelphia’s largest health systems are discovering: they were recently sued by employees who were not paid for working through lunch. If history is any guide, the health systems can expect to pay for this failure—the law firm bringing the suit won a $9 million settlement in a similar New York State case against the University of Rochester in 2006.

Even though the federal Fair Labor Standards Act requires that non-exempt employees be paid for all hours worked, it does not actually clarify what is working time and what is not. Regulations have been passed by the Department of Labor to help clarify this, such as the “meal break” and “rest break” rules. Essentially, if a meal break is 30 minutes or more and the employee is relieved from performing all duties (meaning he or she is not eating at their desk with the responsibility to answer the phone if it rings), that meal break time is unpaid. However, “rest periods of short duration, running from 5 minutes to about 20 minutes . . . are customarily paid for as working time [and] must be counted as hours worked.”

Even if the break is greater than 30 minutes, however, if a non-exempt employee is expected to do something for the company’s benefit during this “break,” including catching up on paperwork or answering the phone, the entire period counts as paid time under federal law. Employees need to be completely relieved form any duties in order for a meal period to be unpaid.

Companies that require nonexempt staff to work during their supposedly unpaid break time could ultimately end up paying far more than they saved by having employees do extra work for “free.”

Unemployed? Don’t Apply

Published by Ed Kowalski on March 17th, 2011 in category Management, Management Tips | Comment now »

The Equal Employment Opportunity Commission (EEOC) held a public meeting on February 16, 2011 to examine employers’ treatment of unemployed job applicants.

Helen Norton, an Associate Professor at the University of Colorado School of Law, was one expert that testified at the meeting. She testified that employers are advertising jobs with explicit restrictions on unemployed candidates. Some employers are using current employment to signal future quality job performance. However, Norton claims the correlation between an applicant’s employment status and future performance is weak.

Employers and staffing agencies have publicly restricted candidates to those currently employed in fields ranging from electronic engineers to restaurant and grocery managers to mortgage underwriters. But experts warn that the practice of denying jobs to the unemployed may have a disproportionate effect on racial and ethnic minorities because unemployment rates for African-Americans, Hispanics and Native Americans are higher than to those of whites. The unemployment rate for Asians is also higher when compared for college-educated workers.

The Vice President for Education and Employment of the National Women’s Law Center testified that an individual’s employment status as hiring criteria is troubling especially for older women and those in non-traditional occupations because they are disproportionately affected by the restriction. Yet another expert on labor testified that the practice likely limits opportunities for older applicants and people with disabilities.

An attorney who counsels employers expressed doubt about the extent of the problem, but notes that the automatic exclusion of unemployed persons does not constitute due diligence in the screening of applicants. “Out of Work? Out of Luck,” www.eeoc.gov (Feb. 16, 2011.)

Commentary and Checklist

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race and color, national origin, sex, and religion. The protections offered by Title VII cover job applicants as well as employees.

Screening job applicants based on current or recent employment status carries some of the same risks associated with screening based on credit scores or criminal records.

The EEOC frowns on employer practices that create a disparate adverse impact on protected classes. Disparate impact is the result of a practice that affects a protected group of employees disproportionately to others. Any practice of automatically screening job applicants has the potential for illegal discrimination if it has a disproportionate impact on protected groups.

Experts testified at the EEOC hearing that automatically banning applicants based on employment status, like similar bans based on credit history, could have the effect of discriminating against women, ethnic minorities, older employees and the disabled. They also suggest the criteria has a weak relationship to the applicants’ potential for successful employment.

The EEOC does not suggest that employers should abandon background checks including checking an applicant’s prior employment history. In fact, it is a best practice to consider the applicant’s employment history and talk to past employers and other references. Employers should compare what they learn in a background investigation to the job duties outlined in the particular job description.

The key is that employers should evaluate each applicant for employment on a case-by-case basis. Again, employers should avoid the blanket elimination of candidates based on employment status.

For related articles on this Site, go to Knowledge Vault, click on Library and enter the search term “background checks.”

In addition to verifying employment history, here are some additional background check pointers:

If a person has a criminal background, review the crime. A victimless crime (possession of marijuana) may not hold the same risk to the workplace as a crime against individuals (identity theft) or the community (selling drugs to minors).
Reference checks are a must. If candidates cannot provide recent references or if their references refuse to cooperate, then you should give preference to those whose references check out positive.
If an applicant’s references refuse to cooperate, ask the applicant for other references. It is important that you find past employers that can state the applicant is a good worker and an asset.
On personal references, question the reference closely to determine that the reference worked with the applicant in the manner that was described to you.
Google the candidate. See if you can find blogs or other writings by the candidate or about the candidate that will shed more light on the candidate’s personality.
Check social websites like MySpace and Facebook. Social websites ask users to post personal information. How a candidate describes himself outside of the hiring process can be very helpful.
If an applicant is untruthful in his or her written application, then that is a sign to move on to the next candidate.
Check a candidate’s educational background. Make sure that they obtained the degrees and achieved the accomplishments listed.

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