Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

6 timekeeping practices that reduce your risk of wage-hour liability

Posted in Wage-Hour

Last week, I wrote about a study describing how certain timekeeping systems could create wage and hour liability through, among other things, making it easy to “cheat” and providing no transparency when changes are made. (Which makes it impossible to detect and correct errors.) Having addressed the “problem” last week, I wanted to talk this week about solutions.

But before I do that, I want to mention one more “problem” raised by my law partner Zan Blue, head of our Nashville Office. Here’s what Zan emailed me last Friday (I’ve edited very slightly):

My dear Ms. Shea— (Yes, that’s the way Zan really talks)

Zan Blue

Zan Blue

Some employers use the auto deduct feature on the timekeeping systems. Seriously.

This feature, much like the “reply all” feature on email, should never have been created, and employers should never let it remain active.

Some employers let time sheets read “8-5” for every day. Some employers don’t even show the actual hours worked, just showing a series of “8” hours. Seriously.

Zan

Well said, Zan. Thank you. I was focused on less-obvious timekeeping issues, but automatic deductions, and use of a “paraphrased” work day instead of an actual work day, are huge problems for any employers who are still doing that.

Here are six timekeeping practices that employers can adopt to keep their risk of wage-hour liability as low as possible (realizing, of course, that there are no guarantees):

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Weekly catch-up

Posted in ConstangyTV, FOCUS, Immigration, Wage-Hour, Work-Life Balance

ConstangyTV’s Close-Up on Workplace Law, April edition, is out! Host Leigh Tyson interviews John MacDonald, head of our Princeton (NJ) Office, about employment law issues unique to the financial and investment industries. If you haven’t already subscribed to our monthly video series, please do so. And, to save you the trouble of trekking all that way over to YouTube, here is the video:

Why the FLSA hurts women, Part II. Heather Owen, proprietor of FOCUS, Constangy’s women’s leadership blog, is back with her second installment on how and why the Fair Labor Standards Act hurts women. Whether or not you agree, Hot Dog Man.flickrCC.JeleneMorrisit’s definitely worth a read and your consideration.

Redesigned green cards and Employment Authorization Documents coming this Monday! The U.S. Customs and Immigration Services is issuing new, more-secure, green cards and EADs starting Monday. But not to worry – the old cards will continue to be valid, and even some of the newly issued cards will be in the old design while the USCIS depletes its inventory of old cards. Barbara Kihumba of our Atlanta Office and our Immigration Practice Group has the details.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

Giant leap in St. Louis city minimum wage is imminent

Posted in Wage-Hour

Employers in St. Louis City should prepare for an imminent increase in the minimum wage from $7.70 to $10 per hour. On Tuesday, the Missouri Supreme Court issued its direction toRobert Ortbals lift an injunction blocking the City’s minimum wage ordinance from taking effect. The trial court that issued the injunction must now lift the injunction—which can happen at any time. Once the injunction is lifted, the minimum wage will immediately increase to $10. The St. Louis Mayor’s office expects the injunction to be lifted within the next week.

This week’s court action follows a February 2017 opinion from the Missouri Supreme Court reinstating the St. Louis City minimum wage law that hikes the city’s minimum wage to $11 per hour by 2018. Originally enacted in 2015, the law had been invalidated by a trial judge hours before becoming effective.

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OFCCP secures $1.7 million settlement in failure-to-hire case

Posted in Affirmative Action, HR, Settlements

The Office of Federal Contract Compliance Programs and Palantir Technologies, a California-based technology company, have agreed to settle a pending lawsuit for about $1.7Angelique Lyons million.

We first reported on this case in October 2016. In its complaint, the OFCCP alleged that the Company used a discriminatory hiring process that resulted in a low selection rate for Asians, who made up 73 percent to 85 percent of applicants for certain engineering positions. Palantir denied that it engaged in any unlawful discrimination, and contended that the OFCCP’s statistical analysis was “flawed” and “illogical.” The company noted that at least 37 percent of its engineering team based in the United States was Asian, which is above the nationwide availability percentage. The OFCCP, however, was clearly not persuaded by the company’s overall commitment to diversity, and instead focused on one statistical anomaly.

Under the settlement, Palantir will pay $1,659,434 to 1,558 Asian job applicants and will extend job offers to eight applicants as positions become available.

This settlement highlights the importance of conducting adverse impact analysis of all employment activity on an annual basis. Because this is one area that carries with it the potential for monetary damages, federal contractors and subcontractors should routinely examine their processes and outcomes to identify any areas of concern before an OFCCP audit occurs.

Trump names Miscimarra Chairman of the NLRB (no more of this “Acting” stuff!)

Posted in Elections, Labor Relations, Politics
Miscimarra

Philip Miscimarra

According to Politico‘s “Morning Shift,” President Trump on Friday night promoted Philip Miscimarra from Acting Chairman to plain old Chairman of the National Labor Relations Board. Congratulations, Chairman!

As of this morning, the NLRB website is still listing him as Acting Chairman.

There are still two vacant seats on the five-member Board, which the President will be able to fill with Republicans, giving the GOP a three-member majority. With saner decisions to follow, it is hoped.

Image Credit: Official U.S. government photo.

Is your timekeeping system creating wage-hour liability?

Posted in Wage-Hour

Does your timekeeping software make it harder for you to comply with wage and hour laws — and to defend yourself in a wage and hour lawsuit?Timeclock.flickrCC.MichaelCoghlan

A study recently published in the Yale Journal of Law and Technology says that there are features of certain timekeeping programs that can create wage and hour problems for employers, and result in underpayment* of employees.

*Underpayment is also known as “wage theft,” but I don’t like that term and will not use it because it implies dishonest intent every time an employee is underpaid. There are lots of reasons employees may be underpaid, including ignorance of the applicable laws, mistake, and underreporting by employees — not always in collusion with management.  

Some of these same software features also make it more difficult for employers to defend themselves even when they paid the employee properly.

The authors of the study, in my opinion, are a little quick to assume that supervisors and managers (and employers) want to cheat employees out of their pay, but they do raise valid points. Here are some timekeeping system features for employers to watch out for:

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Weekly catch-up

Posted in FOCUS, Immigration, Wage-Hour, Work-Life Balance

The FLSA hurts women? Heather Owen, partner in our Jacksonville Office and proprietor of FOCUS, our women’s leadership Hot Dog Man.flickrCC.JeleneMorrisblog, begins a three-part series on how the Fair Labor Standards Act, with its lack of flexibility, is unfair to women (non-exempt women, anyway), who continue to assume more responsibility for child care, elder care, and other domestic duties, in addition to their work outside the home. I’m not sure I agree with Heather, but the discussion promises to be interesting and thought-provoking.

The scoop on that H-1B Executive Order. President Trump signed an executive order this week with some fairly unspecific directives aimed at ensuring that H-1B visas go to highly skilled, highly compensated foreign workers. What does it really mean for employers? Penni Bradshaw, co-chair of our Immigration Practice Group, and Will Krasnow, partner in our Boston Office, tell you what you need to know.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

An EEOC charge has been filed against your company. What now?

Posted in Discrimination, HR

The Equal Employment Opportunity Commission announced last month that it has launched an online inquiry form.Alyssa Peters

The online system is in the testing phase and available for only five offices: Charlotte, Chicago, New Orleans, Phoenix, and Seattle. Whether this new system will result in more charges is yet to be determined, but my guess is that it will do so dramatically! The purpose behind the system is to “make the EEOC much more accessible to the public,” according to the agency’s Acting Chair, Victoria Lipnic. Currently the EEOC receives more than 585,000 calls a year. With that many reported calls, one can only imagine how many calls are dropped or cancelled when the caller loses patience with the looping elevator hold music.

Greater ease in filing EEOC charges means that this is a good time for employers to review what to do when a company receives a charge. Here are some tips:

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Don’t “Ask Amy”!*

Posted in HR

*For employment law advice.

Screen Shot 2017-04-19 at 10.54.05 AM

Neither a lawyer nor an HR professional. Caveat emptor!

Amy Dickson of the syndicated advice column “Ask Amy” is someone I read daily and agree with maybe 50 percent of the time. On most of the matters on which we disagree, she is probably right and I am probably wrong.

But she really blew it today when she tried to venture into the area of employment law.

A letter writer said that she (I’m assuming the writer was female) was hired to be an assistant, and that her boss had wanted to hire someone else. Presumably, because he didn’t get the assistant he wanted, he made the letter writer’s life hell at work and influenced co-workers to pile on.

Here is a link to the column. The boss sounds like a total SOB.

That said . . .

Apart from what appeared to be a throwaway reference to an “old boys’ club,” there was no indication that the boss was acting out against the letter writer because of her race, sex (including but not limited to gender identity or sexual orientation), national origin, religion, color, age, disability, or other protected status. It sounded like he just hated her because she wasn’t the person he wanted to hire. And I assume the person he did want to hire was also female.

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