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

1. The employer is a financial institution;
2. A report is required by law;
3. The employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of the law related to employment; or
4. 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.

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).

• 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.

• 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

The applicant, a Hebrew Israelite, responded to an online job posting for customer service at the call center. The posting was for a job with a flexible work schedule and/or overtime. However, the applicant’s faith required him to conduct no business from sunup to sundown on Saturdays.

The recruiter told the applicant that he would have to work on weekends, but when the job seeker told her that he was unable to work Saturdays due to his faith, she told him the interview was over.

The EEOC seeks front pay, back pay, compensatory and punitive damages as well as injunctive relief and training for all of the employer’s recruiters. “EEOC Sues Convergys Corporation for Religious Discrimination,” www.eeoc.gov (Mar. 3, 2011).

Commentary and Checklist

When an interviewing employee is aware of a need for a religious accommodation, he or she must discuss possible reasonable accommodations with the applicant. This is the requirement of Title VII and the EEOC.

What makes this case interesting is that the job required the employees to work on the weekends…Saturday and Sunday. The complainant could not work on Saturday. Obviously, the EEOC did not believe that working the weekends was an essential function of the job.

As the workforce diversifies, so will the religious practices of applicants and employees. Many times these practices conflict with workplace schedules, routines or rules.

Under Title VII, employers are required to accommodate an employee’s sincerely held religious beliefs as long as the accommodation does not constitute an undue hardship on the employer. Currently, the Supreme Court defines “undue hardship” as anything that poses more than a de minimis (i.e. nominal) cost to the employer.

Flexible scheduling is seen as a reasonable accommodation for religious matters.

In order to prevent religious discrimination claims when it comes to accommodations, employers should:

• Develop and update discrimination and harassment policies to include accommodation procedures.
• Explain what is reasonable accommodation and how applicants and employees can request it.
• Explain in what circumstances reasonable accommodation is granted.
• Create clear, quantifiable criteria for the approval of a religious accommodation request.
• Avoid leaving accommodation requests to the discretion of direct supervisors and funnel all requests to human resources.
• Be cognizant of religious holidays for all religions when making schedules, especially for mandatory training and meetings.
• Uniformly apply the policy to all applicants and employees of all faiths and creeds.
• Involve the requesting applicant or employee into the decision making process as much as possible.
• Before denying a request for accommodation, seek the advice of employment counsel.
• Make sure that all managers understand that retaliation for making a request for accommodation is never tolerated.

This may sound like a trick question, but do you know when you have to pay nonexempt employees for time that they are not really working? The Fair Labor Standards Act (FLSA) clearly requires you to pay nonexempt employees for the time that they are performing work for your organization. But, the Act and its implementing regulations also require you to pay them for some time they are not actually working, such as rest periods and certain travel time.

The requirements can be confusing. Fortunately, regulations issued by the Department of Labor (DOL), found in 29 C.F.R. section 785, provide detailed guidance for determining what are hours worked that must be compensated. The five questions and answers below review the legal definition of working time and provide examples of when a nonexempt employee should be paid for that time.

1. What is the basic definition of working hours?

The Supreme Court provided the definition for working hours adopted by the FLSA regulations in its long-standing decision Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). In that case, the Court determined that working hours include all time during which a nonexempt employee is engaged in physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and its business. (See 29 C.F.R. §785.7.) In addition, the time an employee spends after clocking in, getting to his job, and preparing for it generally should be paid. However, the time which the employee spends waiting, just because he arrived early, is not. (See 29 C.F.R. §785.7.)

As a general rule, employers do not have to pay for any time before and after the employee’s principal activity, unless there is a contract, custom, or practice requiring pay for these preliminary and concluding activities. However, time spent by employees in activities before or after the regular workday must be counted as time worked if the activities are an integral and indispensable part of the employee’s principal activities. (See 29 C.F.R. §785.9.) Working hours also may include time when the employee does not actually perform any work but is engaged to wait.

2. Do we have to pay nonexempt employees for time spent waiting?

Your obligation to pay for waiting time depends on the particular circumstances. According to the FLSA regulations, facts may show that the employee was engaged to wait or they may show that he waited to be engaged. Such questions must be determined in accordance with common sense and the general concept of work or employment. (See 29 C.F.R. §785.14.) The regulations generally distinguish between on duty time, off duty time, and on call time.

– On duty time. Where waiting is an integral part of the job, the employee is engaged to wait, and the time spent waiting is compensable work time. Typically, the periods of inactivity are of a short duration and unpredictable, and the employee cannot use the time effectively for his own purposes. (See 29 C.F.R. §785.15.) Examples provided by the regulations include:

– Off duty time. An employee is considered to be off duty during periods when he is “completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes. An employee is not completely relieved from duty unless he is told in advance he may leave the job and that he will not have to begin work until a specified hour has arrived. (See 29 C.F.R. §785.16(a).)

– On call time. An employee who is required to remain on call on the employer’s premises is working while on call and must be paid for that time. In addition, an employee who must remain on call so close to the employer’s premises that he cannot use the time effectively for his own purposes is also working while on call. (See 29 C.F.R. §785.17.) In determining whether on call time should be paid, courts typically examine how much control the employer has over the employee and whether the employee can effectively use the on call time for personal purposes.

3. Do we have to pay nonexempt employees for meal and rest periods?

Meal and rest break pay requirements are fairly straightforward. Federal law generally does not require employers to give breaks; it only regulates how the breaks should be paid if they are provided.

An employer may treat meal breaks as unpaid personal time if they meet the conditions set out in the DOL regulations for bona fide meal periods. For the meal period to qualify as bona fide, the employee must be completely relieved from duty for the purposes of eating a meal and for a period of at least 30 minutes. A shorter period may qualify under special conditions. Employees do not have to be permitted to leave the premises as long as they are freed from duties during the meal period. The regulations emphasize that an employee is not relieved, however, if he is required to perform any duties while eating. (See 29 C.F.R. §785.19.)

A quick look will show you the information that you need to include on the notice to all new employee’s hired on or after the act’s April 9th effective date. You may use your own form as long as all required information is included or you may use the forms provided by the labor department. Including this new information in a hire letter does not satisfy the requirements of the new law. It must be a separate form. For the labor department’s forms, just scroll down. You are also urged to read the labor department’s Frequently Asked Questions about the WTPA.

If you have new employees whose primary language is Spanish, Chinese or Korean, those foreign language forms are here. Scroll down for the applicable form; then find the needed language. If you have new employees whose primary language is other than Spanish, Chinese or Korean, you only need to provide the information in English. Other foreign language forms may be released by the labor department in the future. We’ll let you know.

Wage theft prevention act guidance and language forms

• Frequently Asked Questions
• Foreign language forms

A: Telecommuting, an alternative work schedule where employees work from a remote location (usually at home) via a computer that can access your organization’s databases, is one of the more common flexible work options you can offer employees. Often referred to as telework, this arrangement gives employees significant control over setting their own schedules and allows them to eliminate lengthy commutes to a distant office. As a result, many employees would like the opportunity to try this work option.
That said, it is not appropriate for every job, since it requires job duties that can be performed effectively off site, or for every employee, since not every worker has the skill sets necessary for unsupervised work. Accordingly, you do not have to offer telecommuting to all employees. But, as with all perceived benefits, you should be prepared to explain why some employees are eligible for telecommuting and others are not. If you cannot show your business-related and job-related reasons for allowing certain employees to telecommute, you may face criticism that your process is unfair and thus be exposed to claims of discrimination.

So, when establishing a telecommuting program, you first should determine which jobs are eligible by looking at the nature of the jobs and whether they can be done effectively away from the office environment. For example, jobs that require special equipment or security requirements, face-to-face interaction with coworkers, or on-site customer service may not be well-suited for telecommuting. 
 
Second, supervisors should decide which employees are eligible, taking into consideration the nature of the job and the employees performance and work habits. Generally, the best telecommuters are those employees who work well with little supervision, meet deadlines consistently, and can communicate effectively by telephone and email. Some employers also limit telecommuting to employees who have been with the organization for at least a year (so that they have a performance record you can evaluate) and whose performance is considered above average. Even if you do not impose a length of service requirement, telecommuting typically is not offered to new hires since these employees frequently need face-to-face training and contact with colleagues and supervisors.

Third, you should establish a specific duration for each telecommuting arrangement and evaluate its effectiveness before extending it. Many employers begin telecommuting for a trial period initially, such as three to six months, to evaluate whether the telecommuting is effective and then extend the agreement for a longer period.

Fourth, you should consider offering potential telecommuters training on workplace safety, dealing with isolation, and time management. You also should make sure that nonexempt employees understand the importance of providing accurate time records and of working only their assigned hours to prevent unauthorized overtime.
 
Finally, you also should consider having telecommuters sign an agreement that explains the nature of the telecommuting arrangement, such as how many days a week the employee will work off site, where the employee will work off site, what equipment (if any) will be provided, how the employee will report in, normal work hours off site, etc. You should make sure that any agreement does not alter the employee’s at-will status, but instead just explains the nature of the telecommuting arrangement and expectations for the arrangement.
 

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.