The Employer Handbook Blog

This Sunday, Daylight Savings Time begins, as we push the clocks forward one hour at 2:00 AM on March 10, 2013.

Did someone say Clocks?

How does the time change affect the manner in which you pay hourly non-exempt employees who work the graveyard shift? I'll let the Department of Labor explain:

On the Sunday that Daylight Savings Time starts at 2:00 a.m., the employee does not work the hour from 2:00 a.m. to 3:00 a.m. because at 2:00 a.m. all of the clocks are turned forward to 3:00 a.m. Thus, on this day the employee only worked 7 hours, even though the schedule was for 8 hours.

The FLSA requires that employees must be credited with all of the hours actually worked. Therefore, if the employee is in a work situation similar to that described in the above example, he or she worked 7 hours on the day that Daylight Savings Time begins....

Of course, when we get to November and set the clocks back, remember that employees working the graveyard shift must be paid an extra hour.

But, until then, enjoy the sun.

P.S. - If you are going to be in Washington, DC on Monday for SHRM's 2013 Employment Law and Legislative Conference, please drop me a line. I'd like to meet you. 

First drink is on you. After all, it's the least you could do.

Have you checked out DriveThruHR yet?

DriveThruHR is the baby of Bryan Wempen and William Tincup, a half-hour radio show on which these two HR leaders, along with a guest, discuss the latest trends, thoughts and sentiment within the industry.

Yesterday, I was on DriveThruHR, Human Resource's #1 Daily Radio, talking social media and the workplace, Americans with Disabilities Act, hockey, and gettin' freaky with the mashed potatoes. Yeah, that's right. Hockey. 

Have a listen...

With a title like that, this post could only arouse the interest of an employment lawyer. 

But, all of y'all should pay attention.

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Putting on and taking off (or, in legalese, "donning and doffing") protective clothing is considered a principal activity. However, the FLSA expressly provides that employees don't get paid for time spent "changing clothes" if a union contract says so.

The question that the Supreme Court must answer now, in this case, is what the heck are "clothes" under the FLSA?

• Four circuits hold that "clothes" includes anything that can be worn on the person, even "accessories." Ah yes, clothes.


• Another circuit has ruled that "special protective gear different in kind from typical clothing" is not clothing. Clothes?


• And yet another circuit held that "clothes" does not include earplugs or safety glasses. Nice clothes, but no "clothes."

In any event, sometime later this year, maybe we'll get an answer to this question. 

For those of you in a unionized environment, you'll want to tune in to make sure to get this right to avoid violating the Fair Labor Standards Act.

No doubt, an early contender for 2013. 

Kind've like The Lincoln Lawyer -- except way less glamorous and with far more bounced paychecks and ejaculate. Yes, definitely more of those. Allegedly.

Read all about it here.

Like most employers, you likely have a workforce comprised of both non-exempt and exempt employees. Under the Fair Labor Standards Act, non-exempt employees who work more than 40 hours in a workweek must be paid OT. Employers don't need to pay OT to exempt employees.

Let's assume that, each year, you provide your workforce with a bank of paid time off. Let's further assume that you implement a policy that mandates that any additional leave be taken in unpaid full-day increments, event if the employee only needs a few hours off. 

Is that policy legal? Or does it violate the FLSA? The answer follows after the jump.

Continue reading "When can an employer require an exempt employee to take unpaid leave?" »

I'm punching out this post on Sunday night, from my home in Philadelphia, before the brunt of Hurricane Sandy strikes. Like many of you, I'm locked, stocked, and ready to go, hoping that the impact is far less than is forecasted and the recovery is easy.

Inevitably, however, for you good folks -- especially if you have closed shop on Monday, employment issues are sure to arise. To help you out with some of them, read on past the jump...

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Continue reading "An HR guide to the workplace implications of Hurricane Sandy" »

Earlier this month, the Supreme Court reconvened for its 2012-2013 term.

Although not chock full of pending employment-law cases, this term will see several important issues decided which could affect your workplace. Below, I have a collected a series of links to stories on these cases:

• "New Supreme Court Term Promises a Range of Labor and Employment Cases" by Lindsey Marcus and Jeff Nowak at Franczek Radelet P.C.
  
  
• "2012 SCOTUS Employment Law Preview!" from Phil Miles at LawfficeSpace.com
  
  
• "Employment Cases on the Supreme Court's 2012-13 Docket" from the folks at GPH Employment Law Blog

Of the five employment-law cases on the Court's docket, the one in which I am most interested is Vance v. Ball State Univ., where the Supreme Court will clarify just who is a "supervisor" for purposes of Title VII.

photo © 2007 Zest-pk | more info (via: Wylio)I just re-read yesterday's blog drivel. What the hell was that?!? As much as I do love the two great tastes that taste great together, that was an utter FAIL and I vow never to incorporate Reese's Peanut Butter Cups into a blog post again. Unless, of course: (a) a makeshift Peanut Butter Cup bra is prominently featured in a reported sexual harassment case; or (b) Hershey's wants to discuss some strategic product placement on The Employer Handbook. What can I say? YOLO and even this blogger has his price.

[Editor's note: I was determined to work YOLO into this blog post. Be nice. Although, my blogging chops are generally sharp, I'm about three months behind on the lingo.]

Focus, Eric. Short blog post. You can handle haiku. 

Arrgh! I cannot believe that Haiku-themed blog post, 17 syllables, would require readers to click through past the jump. Ah, whatever. Click through and someone call my editor...

Continue reading "The 3rd Circuit's new FLSA joint-employment test...in HAIKU" »

After seeing Fatboy Slim perform in a bubble at the Olympics Closing Ceremony, I had trouble falling asleep last night. 

I tossed. I turned. But, I eventually drifted off into a deep sleep; a wonderful slumber. I dreamt that the Third Circuit Court of Appeals decided two cases under the Fair Labor Standards Act (FLSA), and then I blogged about them in a single blog post. Like peanut butter and chocolate, it was the Reese's Peanut Butter Cup of blog posts.

What a sweet, decadent dream. Or was it a dream? Find out after the jump... 

[Hint: no dream, no chocolate, just two FLSA decisions (one of which I'll blog about tomorrow, because I ramble a bit after the jump, much like I'm droning on now). Maybe this is all just an excuse to play Katy Perry. Yeah, this all makes sense. About as much as having Russell Brand sing "I am the Walrus" from on top of a psychedelic VW bus in front of a worldwide audience of millions. Just jump.]

Continue reading "Peanut butter cups for everyone! Thank you, Third Circuit!" »

HEY! Which one of you just threw that breast pump at my head?

[annnnnnnd cue music]

** Dons sensitivity invisibility cloak **

Nearly two years ago, I wrote here about how the The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require companies to afford employees a "reasonable break time" in a private room (but, not a bathroom -- ick!) to "express breast milk for her nursing child for 1 year after the child's birth."

But if an employer violates the law by not provide what the FLSA now requires, can an employee sue? The answer, according to an Iowa federal court is: Corn! No.

In Salz v. Casey's Marketing Company, the court held that since: (1) employers are not required to compensate employees while they are expressing milk; and (2) the FLSA limits recovery to unpaid wages, there is nothing for a private litigant, deprived of a place to express breast milk, to recover from an employer. Plus, the Department of Labor, in this Guidance, limits an employee to filing claims directly with the Department.

For some tips on what employers can do to avoid the wrath of the Department of Labor, check out my tips.

UPDATE: The plaintiff's FLSA retaliation claim survived the employer's motion to dismiss.

As evidenced by the nature of this blog post and the picture on the right, it's best not to leave me in the office alone, unsupervised, with an iPhone, and App Store credits, as I punch this out at 10:52 at night on a Thursday. (And yet, somehow, the Wall Street Journal deems me quotable).

Rest assured, everything I do, I do it for you. And, best of all, it's all employment-law related. Love my job!

(My wife has to be cool with me using our wedding song for this blog post, right? Love ya, baby! "Take me as I am....")

• Evan Brown at Internet Cases reports that an alleged voyeur boss cannot pursue his Computer Fraud and Abuse Act claim.
  
  
• At FindLaw's Legally Weird, Stephanie Rabiner blogs about a reporter fired for stripping after work who has sued her newspaper-employer for discrimination.
  
  
• And over at the Social Media Employment Law Blog, in what he writes in nothing short of "naked ambition," Michael Schmidt discusses a social-media discovery battle in a wage-and-hour lawsuit filed by a group of former "entertainers in the Penthouse Executive Club". Click through to find out how this got resolved. [Note: I used all of my will power -- all of it -- not to resort to a dirty pun in the preceding sentence]. Winning!

And that's what they said...

Now, you'll have to excuse me as I try to beat the locksmith to my house (kidding...)

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post" d/b/a (just for today) "Eric's 36th-Birthday Post". 

*** Sigh ***

Ahh...let's get to today's question:

May an employee raise claims in federal court against an employer under both the Fair Labor Standards Act (federal) and a state wage and hour law? Or is the latter preempted by the former, such that an employee may only pursue FLSA claims?

The answer to today's question -- at least in the Third Circuit Court of Appeals -- comes to us from a decision rendered Tuesday in Knepper v. Rite Aid Corp. There, the court recognized that the FLSA "evinces a clear intent to preserve rather than supplant state law." Consequently, it held that state wage and hour laws such as the Maryland Wage and Hour Law and the Ohio Minimum Fair Wage Standards Act -- two laws that track the federal overtime requirements -- are not preempted by the FLSA.

The answer to today's QATQQ is FICTION.

Yesterday, I presented "Reducing the Risk of Wage and Hour Litigation" with my partner, Jennifer Platzkere Snyder, at ALM's In-House Counsel Labor and Employment Law Forum. We talked best practices, common mistakes, and Supreme Court.

We also dipped into some hot issues, the hottest of which, by far, based on audience engagement, was unpaid internships. Oh boy, is it easy for companies to potentially screw up unpaid internships. Just ask Charlie Rose and Harper's Bazaar. 

Want to get 'em right without running afoul of the Fair Labor Standards Act. Six steps to success follow after the jump...

Continue reading "6 keys to keeping unpaid internships from becoming a hot wage & hour mess" »

Last month, the U.S. Department of Labor published new fact sheets on its website. Employers and employees alike will want to check these out:

Here is a link to the FLSA fact sheet. This fact sheet provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.

The FMLA fact sheet, a copy of which you can find here, provides general information concerning the Family and Medical Leave Act's (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

And, then, there are those that allegedly do. It is on those occasions that this blog can practically write itself.

Take, for example, AutoNation. According to a complaint recently filed in California state court -- well, let's just say that AutoNation better have some good lawyers.

A copy of the complaint and some crazazy unlawful harassment -- allegedly, of course -- follows after the jump. Along with a few employer tips on same-sex harassment.

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Continue reading "Nothing good comes of forcing employees to go to brothels" »