Recently in Overtime Category

December 10, 2014

The hella-best post you'll read today on yesterday's Supreme Court employee-pay opinion

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.

November 4, 2014

An app to stop employees like #AlexFromTarget from checking work email

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.


July 16, 2014

Another PA court concludes that "fluctuating workweek" is dead in PA

It's been a rough year for RadioShack. One that, for me, came out of nowhere.

That Super Bowl commercial was freaking brilliant! (Second only to this one).

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.

May 1, 2014

GUEST POST: 4 Overtime Myths Debunked

guestblogger.jpgToday 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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Continue reading "GUEST POST: 4 Overtime Myths Debunked" »

March 14, 2014

What is it exactly that President Obama wants to do to the FLSA?

Thumbnail image for obama.jpegSo, 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.

February 14, 2014

3 minor leaguers claim Major League Baseball violated the Fair Labor Standards Act

mlbstadium.jpgWhen you think of minor league baseball, you may draw on movies like Bull Durham or The Rookie; long bus trips from stadium to stadium where teams play in front of small crowds for small pay.

Well, apparently, the pay may be small enough to trigger a violation of the Fair Labor Standards Act

As pitchers and catchers being to report for Spring Training, Craig Calcaterra at NBC Sports HardBall Talk reports here that three minor league baseball players have initiated a putative class action in federal court against Major League Baseball, among others. In the Complaint (copy here), the plaintiffs allege violations of the FLSA stemming from the failure to pay minimum wage and overtime for working more than 40 hours per week.

Over at CNNSI, Attorney Michael McCann, discusses the case here and notes that the defendants are not without defenses:

Baseball will argue that professional athletes are not entitled to overtime pay. The life of a professional athlete commands atypical hours and an arduous work schedule. Some of this work may also be more in line with a player's own professional development than his employment. Baseball will surely cite case precedent and Department of Labor Wage and Hour Division materials that support an argument that minor leaguers are exempt from wage and overtime benefits. Baseball might stress that under the FLSA, "professional employees" are usually exempt from FLSA benefits and that classification includes those who perform original or unique work.

Indeed, the FLSA has a seasonality test, which could exempt baseball teams from having to abide by the minimum wage and overtime requirements. 

Here is a case in which the Sixth Circuit Court of Appeals determined that the Cincinnati Reds did not qualify for the exemption. And here is a case where the Eleventh Circuit determined that a minor league baseball team did meet the exemption.

How this one will turn out is anyone's guess. But, I'll keep a close eye on this one for you.

December 13, 2013

Your President/CEO may have to pay your company's wage and hour debts herself

MacGyver.jpgWell, that certainly sucks. Even worse than the time I found out that Santa Claus MacGyver wasn't a real person.

(My psychiatrist says that there's a light at the end of the tunnel. I'm not so sure...)

But seriously, I thought that the purpose of a limited liability company was to insulate members from the debts of the company.

After the jump, see how that rule doesn't necessarily apply when an LLC fails to pay minimum wage or overtime...

Continue reading "Your President/CEO may have to pay your company's wage and hour debts herself" »

October 18, 2013

Does the FLSA require paying employees who wait in security lines at work?

True story.

Back in 1999, when I was in law school in Washington DC, I went with my buddy to see The Matrix at the Uptown Theater in Cleveland Park. At the time, the Uptown was one of the best places around to watch an action flick. And what better movie to see than The Matrix -- one of my top 10 movies of all time.

WTH does this have to do with the Fair Labor Standards Act? 

Uh, duh...

[Humor me and click through, would ya?]

Continue reading "Does the FLSA require paying employees who wait in security lines at work?" »

September 16, 2013

Lady Gaga may owe her former assistant a lot of unpaid OT

meatdress.jpg

We're talking a lot of money honey.

[Bravo, Eric. You couldn't even make it one line without a stupid Gaga pun].

Pun free after the jump...

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Continue reading "Lady Gaga may owe her former assistant a lot of unpaid OT" »

May 20, 2013

GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Jesse Brar. Jesse is a Utah Employment Lawyer at Preston & Brar.

(Want to guest blog at The Employer Handbook? Email me).

Continue reading "GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace" »

May 10, 2013

House passes bill permitting employees to swap OT for comp time

Schlangenmädchen Neyenne Circus BelyOn Wednesday, the U.S. House of Representatives voted 223-204 to pass the Working Families Flexibility Act of 2013, which would amend the Fair Labor Standards Act to permit employers to provide compensatory time off in lieu of monetary compensation for overtime hours worked. Presently, through the Federal Employees Flexible and Compressed Work Schedules Act, only state and federal employees may receive comp time in lieu of OT.

Specifically, the Working Families Flexibility Act authorizes compensatory time off at a rate of no less than one and one half hours for each hour of overtime worked. Under the FLSA, employers must pay OT at a rate of no less than one and one half the employee's regular rate of pay. Republicans contended the measure would allow parents to spend more time with their children. House Democratic Whip, Steny Hoyer [D-MD] has hyperbolized that the Working Families Flexibility Act "would eliminate the 40-hour workweek as we know it."

It should come as no shock, then, that House passage was basically along party lines. And, even if it somehow passes the Senate, the President would likely veto the bill.

April 17, 2013

Employee caught in a pick, Supreme Court scratches her FLSA claims

** drops microphone, walks off stage **

Fine, I'll play a quick encore.

In a case decided yesterday, the U.S. Supreme Court in Genesis Healthcare Corp. v. Symczyk (opinion here) held that if a plaintiff who brings a claim under the Fair Labor Standards Act on behalf of herself and her co-workers rejects an offer of judgment from the defendant that would fully satisfy the plaintiff's own personal claim, then the entire case gets dismissed unless the plaintiff can demonstrate a personal interest in representing the unnamed claimants.

They call this a "pick off" of the lead plaintiff and, yeah, I shouldn't have played that encore. I told my manager. I says, "Charlie, I don't do these FLSA collective action cases. But no....." 

Charlie's gonna get an earful from me...

February 19, 2013

Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?

CoyoteUgly.LYH No body shots here; just a swift federal court kick to Coyote Ugly's social-media jewels.

You get the ice. I'll pour a double and serve up the details after the jump...

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Continue reading "Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?" »

November 7, 2012

Paying banana boxes of food as OT is not an a-peeling option

bananas for those cramps[brrrring brrrring]

"Eric Meyer."

"Uh, yeah, Eric. I just learned that we've got facilities managers who have been working overtime 'off the clock' and...."

"Off the clock, you said?"

"Yeah, and instead of paying time-and-a-half---"

"Yes......"

"We've been giving them banana boxes."

"Did you say, banana boxes?"

"Yes."

"Hold please."

[Chuckles. Calls in five colleagues. Puts phone on speaker]

"Say that again. Sloooooooowly."

"Yeah, we've been giving banana boxes of food to employees who work off-the-clock overtime. Is that, uh, ok?"

"You're f***ing with us, uh, me, right?

"No, really."

"Ok."

"I'm going to email you this case I read yesterday from the Northern District of Mississippi. Wouldn't you believe that these two facilities managers were working 'off the clock' OT and getting paid with banana boxes of food. Yadda yadda yadda. You're screwed."

Folks, don't monkey around -- couldn't resist again, could I -- with OT. Non-exempt hourly employees work over 40 hours in a workweek; it's generally best to pay them time-and-a-half...in money.

August 30, 2012

Kiss the "fluctuating workweek" OT method goodbye in PA

kiss.jpgmmmmmmmmmmmmwah!

What is the fluctuating workweek method of overtime compensation? Why is it no longer good in PA? And why should you care?

I answer all of these hard-hitting questions -- like a BOSS -- after the jump...

Continue reading "Kiss the "fluctuating workweek" OT method goodbye in PA" »