Tag Archives: FLSA

2018 DOL Opinion Letter Under the FMLA

I am pleased to share my latest post to The SHRM Blog.

Many employers have no-fault attendance control policies.  Stated generally:

  1. An employee’s employment terminates if he or she has a certain number of occurrences in a specified period of time.
  2. An occurrence “falls off,” and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.

The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy.  But does the time that the employee is on FMLA leave count toward the period of time after which a point “falls off?”

The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue.  The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

The Department of Labor concluded that the period of time in which an employee is on FMLA does not need to be considered as part of the time necessary for an occurrence to fall off, provided that the employer applies this rule on a non-discriminatory policy basis.  For example, if the time an employee is on paid parental leave beyond the FMLA counts toward the period of time after which a point falls off, then not counting the time off covered by the FMLA would be discriminatory.

It is important that employers focus on this issue.  It is also important to note that a court might not agree with the DOL opinion letter.  As important, agencies or courts interpreting the ADA could come out with a different result under the ADA.

Further, the answer may be different with state and local leave laws.  We know that many state and local leave laws provide employees with greater protection than federal law.

So, while I am sure I am not alone in being grateful that the DOL has started to issue opinion letters again not only under the FLSA but also under the FMLA, employers need to be careful not to reach certain conclusions too quickly based on them.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

I am pleased to share my latest post to The SHRM Blog.

Just as Texas begins its slow recovery from Hurricane Harvey, Florida braces for Hurricane Irma. So, we must, again, look at wage and hour rules:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work. Just in case there is a manager who does not know this, you should make sure they do. Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

Houston Employers: Wage and Hour Guidance and Hurricane Harvey

I am pleased to share my latest post to The SHRM Blog.

For Texas employers, particularly in and around Houston, the priority is helping employees and remaining as operational as possible.  Just a reminder of the wage and hour rules that apply to remaining as operational as possible:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.  Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many. http://www.twc.state.tx.us/news/efte/h_regular_rate_salaried_nx.html
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work.  Just in case there is a manager who does not know this, you should make sure they do.  Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

 

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

The New Overtime Rule: What’s It Mean For Your Business

I am pleased to share my latest post to Philadelphia Business Journal.

The U.S. Department of Labor on Wednesday finalized a new rule that doubles the annual salary threshold for receiving overtime pay to $47,476. The White House estimates that will provide overtime pay to an additional 4.2 million workers, leaving business owners wondering how they will foot the bill for the change or keep employees from racking up extra hours.

The new overtime regulations are rather uncomplicated as a matter of law but there are major business and employee relations considerations when it comes to implementation.

Let’s begin with the law. Generally:

▪The minimum salary will be $913 per week. As noted, that is double what the number was under the 2004 regulations, $455 per week.

▪While the increase is substantial, for the first time, an employer may include some compensation other than salary to meet the minimum salary. More specifically, employers can include non-discretionary bonuses, incentive payments and commissions to satisfy up to 10 percent of the minimum weekly salary.

▪The minimum salary will be adjusted every three years. The DOL had proposed every year.

▪There will be no changes to the primary duty test. The DOL had, by the questions it asked in its proposed rule, suggest it might move to a percentage test, as is the case in California. Instead, the test remains the same: primary means main, principal or most important.

▪The regulations go into effect on December 1, 2016. So employers have about six months to prepare.

The big question that employer will need to decide with exempt employees making below the minimum salary is whether to raise their salaries or to convert them to non-exempt. Among a much longer list, here are eight questions that every employer should ask itself in making that business decision.

  1. How will I get the work done? Exempt employees can work anywhere and anytime. And, most do. If you need that kind of flexibility, that may argue in favor of increasing salary rather than converting to non-exempt.
  2. How do I allow an employee I convert from exempt to non-exempt to work remotely without ending up with an off the clock case? Even if you don’t need an employee to perform substantial work remotely or you cannot afford the minimum salary increase, the now non-exempt employee still likely will need to perform some work remotely. We need to deal with it by developing guard rails to limit, capture and pay for all such work. The on-off switch with regard to remote work may need to become a dimmer.
  3. How are similarly situated employees being treated?Converting employees from exempt to non-exempt will produce different reactions. Some may be thrilled—the potential for overtime. Others may be less happy—they see it as a demotion. Make sure you have business reasons for whom you convert to non-exempt and document same to defend potential discrimination claims by those who are upset, one way or the other.
  4. How are you going to communicate with employees whom you are converting from exempt to non-exempt? This is critical. As just noted, some will see this as a demotion. You need to explain that the change is driven by legal considerations and nothing changes the value you place on what the employee does for you.
  5. How are you going to ensure that exempt employees don’t get killed as you move work from the newly converted non-exempt to them to avoid paying overtime? Many exempt employees making well above the minimum salary work day and night. There is a breaking point. Provide them with even more work and, at a minimum, this may produce resentment. If they become sufficiently unengaged on enraged, they may leave. Yes, Virginia, millennial employees are not the only ones who want a life, too.
  6. What do you do with employees who are above the minimum salary when you raise the salaries of others below it so they remain non-exempt? Raising the salaries of higher paid employees may be costly. But not raising their salaries may have a heavy employee relations cost. “So he gets a $4,000 raise and makes only $1.000 less than I do even though I have been here for 5 more years with great reviews.” A lot of tough calls will have to be made. And, remember, it is not “all or nothing.” Be creative.
  7. How do you train your managers on how to deal with those converted from exempt to non-exempt? The question provides the answer. Don’t forget the training. If you ask the now non-exempt employee to do something as she is walking out the door, tell her to log back in and pay her for the extra time. It is a little more complicated legally but you get the drift, I hope.
  8. How do I budget? Plan for more overtime as a result of conversions, unless you want to have unhappy or lose customers or clients. Educate your financial team of the new normal so that they can be partners and not impediments.

And, that’s just for starters. Having fun, yet?

The Pope Is Coming to Philly

I am pleased to share with you a blog my colleague, Linda B. Hollinshead @lhollinshead1, and I collaborated on concerning the Pope’s visit to Philadelphia and the wage and hour issues it may cause.

We have been asked a lot of questions about the Pope’s visit to Philadelphia in terms of wage and hour and other laws. Here are the some of the questions and the general answers:

  1. If we shut down for a day or two, do we have to pay exempt employees? The general answer is “yes.” However, you generally can require that the exempt employee use PTO to cover a day on which you shut down.
  2. If we shut down for a day or two, do we have to pay non-exempt employees? The general answer is “no,” unless: (1) you have a policy that says you will pay; (2) there is collective bargaining agreement that obligates you to pay; or (3) the employee is paid on fluctuating work week basis. Reminder: the fluctuating work week is not recognized in Pennsylvania but it is in other states. Even if there no duty to pay, please think of employee relations since you must pay exempt employees.

Continue reading The Pope Is Coming to Philly

What Will the Department of Labor Do Next?

I am pleased to share with you an article I wrote for the Corporate Counsel section of ALM.

On July 6 in the Federal Register, the U.S. Department of Labor published proposed changes to the Fair Labor Standard Act’s white-collar exemptions. Under federal law, these include the following categories: executive, administrative, professional, outside sales and computer professional. The last is not recognized under some state laws, but remember that employees always get whichever is the more protective between federal and state laws.

To continue reading, please click here.

Preparing for Imminent DOL Rules

This blog was originally published for SHRM’s SHRM Blog.

We have heard it before. The proposed regulatory changes to the white collar exemption are “imminent.” And, then they were delayed.

Well, the regulations were sent by the DOL to the OMB. The conventional wisdom is that they will be published on June 18, 2015 (I suspect so the DOL can say “Spring”). Continue reading Preparing for Imminent DOL Rules

Waiting for the DOL

With all due respect to the DOL:

  1. DOL forms to be used under FMLA would have expired at the end of last month, but they have been modified so they are now effective until March 31, 2015. Will new forms be published by March 31, 2015? If not, we recommend that you continue to use the current forms published by the DOL (which can be found on its website with the new expiration date). Best to use the most recent government document! Forms with March 31, 2015 expiration date: http://www.dol.gov/whd/forms/.
  2. The EEOC has asked the DOL to modify its forms, among other reasons, to comply with GINA. The DOL forms do not include the appropriate GINA disclaimer. http://www.eeoc.gov/eeoc/foia/letters/2014/gina_fmla_forms_11_10.html

Continue reading Waiting for the DOL

What the Supreme Court’s Decision on Donning and Doffing DOES NOT MEAN!

Case: Sandifer v. United States Steel Corporation

Background:  As a general rule, the FLSA requires employers to pay their employees for time spent changing into required protective clothing/gear at work. Continue reading What the Supreme Court’s Decision on Donning and Doffing DOES NOT MEAN!