Recent trends reveal that employment retaliation claims are on the rise. Further, courts are taking a hard line on offending employers accused of retaliation in employment. A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices. Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.
And it’s exhibit one to the wage and hour lawsuit that has just been filed against your company. The Department of Labor (DOL) has announced the release of its first smartphone app – a timesheet that allows employees to keep track of their work hours and calculate how much they are owed each workweek. With this app, English and Spanish speaking employees can track regular work hours, break times, and overtime hours not only for themselves but for others. The app is currently compatible with the iPhone, iPod Touch, and iPad, but the DOL is exploring updates that could enable similar versions for other smartphone platforms and that would enable other pay features, such as the inclusion of tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest. For those employees who do not have a compatible smartphone, the DOL has a printable work hours calendar available for use that not only provides employees with a means on which to independently record their work hours but also a primer on what their employers may be doing wrong. Of course, the DOL’s number is included at the bottom.
This week the United States Department of Labor is hosting a series of Q&A sessions regarding its “Plan/Prevent/Protect” regulatory agenda via webcast. (Here’s the link to the schedule: http://www.dol.gov/regulations/.) While all of this may seem wonky (and it is), everyone needs to start paying attention to items like the Office of Labor-Management Standards’ plans to issue a rule to narrow the application of the “advice exemption” of the Labor-Management Reporting and Disclosure Act (i.e., an effort to require more disclosure of employer spending with outside consultants on union avoidance). As they say, the devil is in the details.
Litigation under the FLSA continues to spread like a cold in a daycare. To further add to our concerns, Congress is entertaining yet another way for employers to find themselves in trouble for wage-hour violations. While the penalties under the FLSA for the misclassification of an employee as an independent contractor can quickly become expensive with backpay, liquidated damages and attorneys’ fees, the proposed “Employee Misclassification Prevention Act (EMPA) may add further salt to the wound. In its present form, EMPA would impose penalties of $1,100 for an initial misclassification, and take that penalty to $5,000 for persistent or willful violators. These penalties are on top of those allowed under the FLSA for any unpaid overtime. EMPA also proposes to add further civil penalties for recordkeeping violations and create a presumption that an employer’s inadequate records the finding of an employment relationship rather than independent contractor status.
Employers are doing more with fewer employees, which means employees are working more hours. That’s fine as long as nonexempt employees are paid overtime if they work more than 40 hours per week. If they’re misclassified as nonexempt employees, employers will owe overtime for the extra hours being worked. That could amount to big money.
The only Elena Kagan brief I haven’t covered was filed in the case of New Process Steel v. National Labor Relations Board. (She also filed one in National Labor Relations Board v. Laurel Baye Healthcare of Lake Lanier, but this case involved the same issue decided in the New Process Steel case.) New Process Steel concerned the issue of whether the NLRB could properly decide cases with only a two-member board. Representing the NLRB’s position, Kagan argued as Solicitor General that the NLRB could act with only a two-member board. The Supreme Court has now decided that it couldn’t.
According to a recent NPR report, the Paycheck Fairness Act (click here for summary) is making some progress toward passage in Congress. The Act builds on the Equal Pay Act (passed in 1963 when women earned 59% of men’s wages). To some extent, it would also supplement the Lilly Ledbetter Fair Pay Restoration Act (the first piece of legislation signed by President Obama), although some observers believe that the Ledbetter Act has done little to narrow the gender wage gap.
I’ve previously written about a common misconception that many employers have about independent contractors. It sort of goes like this. If you hire someone, you can call them an employee or an independent contractor. If the latter, you just need to get the person to sign an independent contractor agreement. Then, you don’t have to withhold income taxes or social security, pay unemployment premiums, or provide benefits.
Human Resources News provides an important update on a program announced by the U.S. Department of Labor last year and rolled out last week. It’s called “We Can Help.” Employers should pay close attention, because this is a program designed to help employees work with advocacy groups in cracking down on wage and hour violations.
Much has been written about the recent New York Times article on whether employers are violating the wage and hour law by failing to pay interns for their work. See Workplace Prof Blog, Philip Miles, Manpower Employment Blawg, The Atlantic, The Huffington Post, YGLESIAS, Hipsterrunoff, Joanne Jacobs, The Kept-Up Academic Librarian, Minding the Workplace, and FindLaw.
In an Administrator’s Letter from the Wage & Hour Division of the U.S. Department of Labor, mortgage loan officers are said to be non-exempt employees under the Fair Labor Standards Act, instead of exempt employees under the administrative exemption of the FLSA. This letter reverses two previous Administrator Letters on this subject. The new letter is based on the following facts:
In California, is an employee’s commute time compensable? In Rutti v. Lojack Corporation, the Ninth Circuit Court of Appeals ruled that commuting time can be compensable under California law. The court denied an employee compensation for commuting time spent in a company vehicle under the federal Employment Commuter Flexibility Act but simultaneously ruled that the employee’s mandatory commute was compensable under California law. For a more detailed summary of this case prepared by two of my colleagues at Miller & Martin, click here.
According to the New York Times, at the annual World Economic Forum in Davos, Switzerland, French President Nicolas Sarkozy called on world leaders to embrace “a more moral form of financial capitalism.” Is he saying that regular capitalism is immoral?
Whether one believes in the recognition of a religious event or dogma during December, it’s impossible to remove Christ from this season. Like it or not, Christmas approaches. Thus, I risk a post, not on the birth of Jesus, but on something he taught about the workplace.
According to the Wall Street Journal, five high-ranking executives at American International Group (AIG) are prepared to quit if their compensation is cut significantly. You may recall that AIG was one of the companies that nearly brought the worldwide economy to its knees last year and that continues to be a problem. AIG was bailed out by American taxpayers and is now 80% owned by the U.S. government.
The U.S. Department of Labor (DOL) has recently updated its Employment Law Guide: Laws, Regulations, and Technical Assistance Services. It’s not the be-all and end-all, but it is a handy reference for basic laws enforced by the DOL. It’s not a substitute for legal advice when complex issues arise under these laws.
The recession is over. Employers continue to lay off employees. Employees work for half of what they used to make. Hefty bonuses are back. America’s tale of two cities today is, at best, unnerving. It is, at worst, dangerous.
I’ve previously encouraged employers to be careful (click here and here) about misclassifying employees as independent contractors. Comcast has now been sued in a class action lawsuit for allegedly doing exactly that.
The issue of misclassifying employees as independent contractors is heating up. Here’s this week’s tip: If you have a bunch of workers classified as independent contractors, you need to get some legal advice about their classification. It’s certainly possible that any employee could have independent contractors. But when there are dozens or even hundreds of workers classified as independent contractors, there’s usually some misclassification going on.
The 14th annual Advanced Employment Issues Symposium (AEIS) is underway in Nashville, I again have the privilege of serving as moderator. The program will be repeated in Las Vegas on October 29-30. Call M. Lee Smith Publishers at 1-800-274-6774 for more information. Here’s a taste of what you can choose from if you attend.