“Once is happenstance. Twice is coincidence. Three times is enemy action.”
(I’m pretty sure that was from Ferris Bueller)
Yesterday, in the Wall Street Journal, I read Lauren Weber’s article “Can You Sue the Boss for Making You Answer Late-Night Email?” And the answer is yes, provided that you are a non-exempt employee under the Fair Labor Standards Act and the time you spend answering that email is more than a few minutes a week. It’s no different than when an employee checks company email at work. Work is work. Employees get paid to work. Continue reading
I’ve gotta hand it to the company in this recent federal appellate court opinion. The company almost — soooooo close — avoided several claims for unpaid overtime.
Let me set the stage for you.
So, there I was wearing nothing but feathers and a coy smile. Back in 2011, the U.S. Department of Labor began investigating a complaint that a marketing company had misclassified some employees and failed to pay overtime. During the DOL investigation, the company sent the employees checks for back wages. Each check bore the following note in fine print:
“full payment from Actinlink [sic] or [sic] wages earned, including minimum wage and overtime, up to the date of the check.”
A bunch of employees deposited these checks. So, the marketing company claimed that, voila, those employees had agreed to waive their right to any additional back pay. Continue reading
More specifically, as posed in this recent federal court decision, “when an employer requires an employee to attend alcohol counseling and treatment sessions as a condition of keeping her job, must the employer compensate the employee for the time she spends in counseling and treatment?”
The three plaintiffs, NYPD police offers, identified three aspect of counseling that they claim they were required to undertake: (1) inpatient counseling at a residential treatment facility (with respect to one plaintiff); (2) outpatient counseling during regularly-scheduled work hours; and (3) outpatient counseling after regularly scheduled work hours. All three were paid their regular wage while in counseling. However, none of these employees received overtime.
More after the jump…
When you’re part of the bloggerati, just one half-step below the illuminati, well, let’s just say membership has its privileges. AMEX taupe card, rinkside seats to the local roller derby, earlybird specials, the world is your oyster.
And, at work, the staff
sees me coming and runs the other way throngs to my office. Indeed, it’s gotten so bad, that we had to install security machines to control ingress and egress. While my firm can’t wait for me to jump ship loves the attention that my blog brings — remember you can vote for my blog in the ABA Blawg 100 — the folks who sign my mega-paycheck expressed concern that it would also have to compensate our non-exempt employees for the spent clearing security.
Thankfully, yesterday, the Supreme Court, in this opinion, unanimously ruled that the time these folks spend clearing security is not compensable under the Fair Labor Standards Act. That’s because the time our staff spends waiting in line to clear security is neither indispensable nor integral to their principal activities in the office. They get paid to do legal work; not wait in line. And, absent the security, these folks could still do their jobs. And, even though my firm requires our awesome staff to clear security because of my blogging greatness and related fame and notoriety, the Portal-to-Portal Act exempts employers from FLSA liability for this this preliminary and postliminary time.
Although in reality, our firm had no direct stake in yesterday’s SCOTUS ruling, and I made up everything in this post, except for the SCOTUS opinion, hopefully, you’ve learned a thing or two about the FLSA and compensable time.
Today’s post is brought to you by the letters S, E, and O.
With a tip of the hat to whomever posted a link to this story on Twitter, it got me reading about this app that companies can install on employees’ smartphones and tablets that would preclude them from accessing work-related email on those devices.
Why would you want to do that?
For starters, app maker touts the feature as increasing productivity, reducing stress, and creating a more stark line between work and personal time.
But, this is an employment-law blog. And, little known fact: When Ice Cube wrote Check Yo Self in 1992, he created a prescient radio remix, addressing the Fair Labor Standards Act implications of employees using smartphones for work email.
Right hand to God.
You see, the FLSA (and, by extension, parallel state laws) requires that employers pay minimum wage to all employees and overtime to non-exempt employees, like #AlexFromTarget, for all hours over 40 worked in a particular workweek. And Cube knew that when a non-exempt employee is accessing work-related email on a handheld device either on or off the clock, unless de minimis, that is still compensable time.
(Just kidding on the Ice Cube thing. Even #AlexFromTarget knows that).
Even without this app, if you won’t want non-exempt employees using work email “off the clock,” have a rule in your handbook. You can strictly forbid non-exempt employees from accessing work-related emails “off the clock.” If employees ignore the rule, you still have to compensate those employees. However, you can discipline them too.
It’s been a rough year for RadioShack. One that, for me, came out of nowhere.
So, of to a great start in February, I thought things were looking up for RadioShack. But, then they announced they were closing 1,100 stores and one analyst later cut RadioShack’s stock price target to $0. ZERO!
And, then, last week, in this opinion, a Pennsylvania federal court delivered a swift kick to the RadioShack’s you know what, when it held that RadioShack use of the “fluctuating workweek” method for calculating overtime violates the Pennsylvania Minimum Wage Act.
We’ve talked about the fluctuating workweek here before, in a post I trust maybe three of you read. Because wage-and-hour posts appeal to my readers about as much as Paula Deen likes kale and quinoa.
Maybe, now would be a good time to cue up the music.
For those who care — hey, welcome back you three — basically, the fluctuating workweek method of calculating overtime compensation allows an employer to pay a non-exempt employee a fixed, weekly salary, regardless of the number of hours worked. OT is then paid out at one-half times the regular rate of pay (rather than one and one-half times the regular rate, as is the default for payment of OT). The regular rate of pay is determined by dividing the fixed salary by the total number of hours worked in a workweek. This method of paying OT benefits the employer if employees generally work more than 40 hours per week (because the effective hourly rate is driven down).
But, unlike under federal law, the supporting regulations to the PMWA require that even if an employer reaches an agreement with its employees before work is performed as to a regular rate of pay, the employer must still pay OT at a “rate not less than 1 ½ times the rate established by the agreement.”
Between the regulations two prior cases (this one and this one), which both held that the fluctuating workweek method of overtime calculation is impermissible under the PMWA, the Court concluded that RadioShack too had violated the PMWA by not paying out OT at one and one-half times the regular rate.
At this point, it’s safe to say that PA employers who utilize the fluctuating workweek are just asking for trouble.
Today we have a guest blogger at The Employer Handbook. It’s Kimberly Erskine.
Ordinarily, when I’m offered a wage-and-hour guest blog post, I just yawn — much like you do with the FLSA posts I do myself. But, this one, written from employee’s perspective, is a worthwhile read for both employees and employers alike.
(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).
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So, by now, you’ve likely read the news, first reported on Wednesday night by The New York Times reporters Michael Shear and Steven Greenhouse that “Obama Will Seek Broad Expansion of Overtime Pay”.
Messrs. Shear and Greenhouse indicated that, yesterday, President Barack Obama was to the direct the U.S. Department of Labor to “revamp its regulations to require overtime pay for several million additional fast-food managers, loan officers, computer technicians and others whom many businesses currently classify as ‘executive or professional’ employees to avoid paying them overtime.”
Possible targeted changes to the FLSA
The New York Times article suggested that President Obama would call on the DOL to raise the minimum salary level for employees to qualify for an overtime exemption.
Currently, to fit under either the “executive” or “administrative” exemptions to the Fair Labor Standards Act, among other things, the employee must make at least $455 per week in salary. Raising that number would render fewer employees “exempt,” thus increasing the pool of overtime-eligible employees.
Additionally, Messrs. Shear and Greenhouse report that “the new rules could require that employees perform a minimum percentage of ‘executive’ work before they can be exempted from qualifying for overtime pay.” The current rules contain more amorphous standards.
A directive from the President that’s long on newspeak and short on specifics
With all of this buildup, yesterday, the White House issued a “Presidential Memorandum” entitled “Updating and Modernizing Overtime Regulations.” The memo contains nothing as specific as reported in The New York Times. Instead, it contains an overview of the Fair Labor Standards Act followed by a vague directive to the DOL:
“I hereby direct you to propose revisions to modernize and streamline the existing overtime regulations. In doing so, you shall consider how the regulations could be revised to update existing protections consistent with the intent of the Act; address the changing nature of the workplace; and simplify the regulations to make them easier for both workers and businesses to understand and apply.”
Quite frankly, although this is a general edict, I’m all for streamlining and simplifying an arcane law that has become a nightmare for businesses and their employees to comprehend.
Don’t expect swift change.
How, specifically, the FLSA may change, is less than clear. What is clear; however, is that this process will take a lot of time. If the DOL wishes to amend the regulations supporting the FLSA, it must first propose rule changes, then entertain a public comment period, then, as necessary, tweak the changes, before finally implementing them.
Bottom line: don’t expect much in the way of change to the FLSA anytime soon.
What can employers do now to protect themselves?
However, news like this, together with the growing trend in wage-and-hour claims, should serve as a wakeup call to employers. Consider taking some proactive steps, such as a retaining outside counsel to perform a wage-and-hour audit, to spot issues now, limit exposure, and reduce the risk of future litigation.
UPDATE: The SHRM A-Team has released this update on the proposed changes to the FLSA.