When Will They Ever Learn?  

If that sounds like the lyrics from an old song you are correct (click here to name that tune!) But it also seems to describe how employers misstep time and time again when it comes to wage and hour issues.  Take a few recent headlines:

• November 29th - US Labor Department  nets more than $2.3 million in back wages for 578 restaurant workers;
• November 22nd - US Labor Department enforcement initiative records more than $1 million in back wages for 295 workers;
• November 17th - Company will pay $400,000 to 71 women to settle US Labor Department sex discrimination allegations.

Now consider this recent case decided November 7, 2011. I am occasionally asked, "Is an employer required to give employees a meal or rest period?"  What's the answer?  You know!...it depends.  The Fair Labor Standards Act (FLSA) does not require employers to provide a rest or meal period to employees.  But if an employer chooses to offer rest or meal periods that are unpaid, then the FLSA regulates the conditions under which such unpaid time must be administered.

But state laws vary.  So mirror federal law and have no such requirements.  Some require meal and/or rest periods only for minors. Some require only rest or meal periods for certain employees or in certain industries.  So, you see, it can be a bit more complicated than one might assume to simply pay an employee proper wages.  Consider this recent case decided November 7, 2011 in which the Washington State Court of Appeals affirmed the lower court's ruling finding the employer failed to provide a "class" of employees with rest and meal periods as required by state law and affirmed a judgment of $2.1 million dollars against the employer.  Pellino v. Brink, Inc.

Proactive Tips? First be sure your compensation practices are in full compliance with the FLSA.  Ensure that every employee you have classified as exempt from the minimum wage and overtime requirements is properly classified.  This assessment must be done on an employee-by-employee basis, not by job title.  It is possible to have multiple incumbents with the same job title; four may qualify for exempt status and one may not.  Be sure each person meets the minimum salary and salary basis requirements and at least one duties test. 

Next, be sure you are in compliance with your state wage and hour laws as well as the corresponding regulations.  Today there are at least 16 states that have their own "white-collar" regulations e.g., those that define "exempt" status, which are different from the federal regulations.  This means it is possible that you may have an employee who qualifies for exempt status under the federal regulations but not under the state regulations. Click here for a list of those 16 states. 

Then ensure you are in compliance with your state wage and hour laws.  Just some issues addressed at the state level may include: wage payment upon termination; (im)permissible pay deductions; notice of wages and/or pay day; rest periods; meal periods; minimum frequency of pay; when paid leave may be withheld; and more.

Where to Begin? In addition to the links provided in this article the U.S. Department of Labor also provides a list of the state meal and rest period laws. Have more questions?  Contact FiveL Company for information on FLSA auditing services.  

 Hot Hits!! Education Corner

Upcoming Public Speaking Engagements (presented by Ms. Walters)

Click here for the full calendar of upcoming events.

Upcoming Client Training Programs

"HR & the Law for Managers" (Maryland)

"Managing Change in Changing Times"(a.k.a. Union Avoidance) - (4 sessions; New York)

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NEXT WEBCAST: January 24, 2012 - 10:00-11:00 a.m. EST: 

"Union Issues for Non-Union Workplaces" 

The news has been replete with headlines announcing vacancies, appointments, legal challenges, regulatory reform and decisions with, to, about and by the National Labor Relations Board (NLRB).  Understanding the basics of the National Labor Relations Act (NLRA) is important for all employers, including those who are union free (and those who want to stay that way). Join this interactive program as we review the rights of employees; obligations of employers; latest interpretations of the NLRA by the NLRB; and proactive tips for employment policies, practices and procedures.

Click here to register.  

This webcast is pre-approved by HRCI for 1.0 general credit hour.

2012 discounted annual subscriptions also available; register for all 11 webcasts in 2012 for the price of 8!

Posting Updates!

One Goes Up! If you have 11 or more employees and are not otherwise exempt from OSHA's recordkeeping requirements then be sure you post your OSHA summary report by February 1st.  Not sure if your company is exempt or not?  Find your Standard Industry Classification (SIC) Code and then click here.

One Comes Down! Some employers (excluding covered government contractors) have already posted the notice of "Employee Rights" published by the National Labor Relations Board, which was required to be posted by January 31st.  If you have already done so, that's fine.  You might also want to take it down; the effective date of this posting has been delayed a second time, this time to April 30, 2012.    

Is It Just Me? 

Since the inception of this newsletter in 2002 I have written about legal, legislative and regulatory changes that impact employment policies, practices and procedures, the latter two driven by federal and state governmental bodies or agencies.  I believe, however, I have never observed more aggressive, meticulous, burdensome (and inaccurate) actions that I have in the last several months.

• A small business receives an EEOC charge. We reply that it was filed not by an employee but by a part-time volunteer who runs his own full-time business and publishes on his own business website that he "volunteers" for this local organization. Doesn't the EEOC do a little research first?
• A small business receives an audit letter from the OFCCP requesting a copy of written affirmative action plans. We reply that the employer is not a covered government contractor; it has less than 50 employees. About three weeks later after nearly daily phone calls requesting more information (up to five calls in one day); different "cuts" of wage information; demographic analyses; and repeated reminders by us that the client is not a covered contractor the agency issues a written finding of no violations.  Doesn't the agency do a little research first? 
• If you follow me on Twitter you saw my "Tweet" a few weeks ago about the US DOL's publishing states' average, unemployment insurance improper payment rate over the last three years, ranging from a low of 4.54% to a high of 43.57%.
• Is it just me or do you also find it odd that on the same website the US DOL's touts the needs to extend, Emergency Unemployment Compensation (EUC)?  I get the human side of the argument but as a business advocate I struggle with the seeming contradiction. FYI - since the posting of that webpage EUC was extended through March 6, 2012. 

Suggestions?  I hear much about regulatory reform -- from the President to my own state's Governor.  If your business is burdened with regulatory compliance share your concerns with a representative from the respective state agency - whether it's environmental, economic, employment or other - let your business voice be heard!

 This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.