Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

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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“Comp time” for private sector employees: What’s not to like?

Posted in Wage-Hour
Little League.flickrCC.RobBixby

Paid time off to watch your little slugger – priceless!

House and Senate Republicans have introduced legislation — the Working Families Flexibility Act of 2017 — that would amend the Fair Labor Standards Act to allow private sector employers to provide “comp time” to employees in lieu of overtime pay. I’ve read the House version of the bill, and I’m having a hard time finding anything to dislike.

A few weeks ago, I said that I thought the FLSA needed to be updated to better reflect our more flexible workplaces, but I admitted that I didn’t really know how to accomplish that while still preserving employee rights. The GOP bill seems to be a healthy step in that direction.

I think employees might like love the option of having extra time off instead of overtime pay, and the House bill appears to have plenty of safeguards to protect employees’ rights. Here’s the rundown:

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Weekly catch-up

Posted in Equal Pay, Wage-Hour

Lots going on in the Northeast these days!

Hot Dog Man.flickrCC.JeleneMorrisFrom Massachusetts, Connor Cobean of our Boston Office has a discussion of a state Superior Court decision that allows employees to sue for back wages and treble damages if their employers violate the Sunday blue laws. (Employers covered by the blue laws have to pay time and a half to non-exempt employees who work on Sunday.)

And the New York City Council has passed a measure that would prohibit employers from asking job applicants about their salary histories. The measure has been sent to Mayor Bill de Blasio, who is expected to sign it. Assuming he does so, NYC will join Philadelphia, Massachusetts, and Puerto Rico in imposing such a prohibition. Anjie Cabrera and Stephen Stecker from our New York City Office have the story.

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

Employers, spike those “high heels” dress code requirements!

Posted in Safety

British Columbia has recently amended its health and safety law to prohibit employers from requiring employees to wear high heels to work.

No High Heels.flickrCC.TineSteiss

Spike ’em!

Maybe this isn’t too big a deal in an office environment, but there are some less-sedentary workplaces in which employees are on their feet all day long. It is not fair to require female employees to be running around in five-inch stilettos!

Seriously, workplaces that actually mandate high heels have got to be very rare. I know heels are not allowed in manufacturing environments. At the restaurants I frequent, the female wait staff normally wear flat shoes of one type or another. I suspect the issue may be confined to workplaces like casinos or Playboy Clubs. (I’ve never been to Hooters, but I think even their “girls” wear sneakers, don’t they?)

In any event, three cheers for B.C.! Stamp out mandatory high heels!

DISCLAIMER: Notwithstanding the picture, I don’t advocate banning high heels at work unless there is a genuine safety issue. To each her own. I just don’t think they should be required because they are not physiologic.

Image Credit: From flickr, Creative Commons license, by Tine Steiss.

“The Bermuda Triangle” ADA-FMLA-Workers’ Comp Quiz

Posted in Americans with Disabilities Act, Family and Medical Leave Act, HR, Workers' Compensation

(DEAR READERS: I know that using “Bermuda Triangle” to refer to issues involving the Americans with Disabilities Act, the Family and Medical Leave Act, and workers’ compensation is corny, trite, stale, and overdone. But I’m being ironic, so it’s ok.)

No. 1: FMLA leave can run _____________ with workers’ compensation leave.

Bermuda Triangle.flickrCC.NOAANatlOceanSvc

Embrace the cliche!

A. Consecutively

B. Conformity

C. Concurrently

D. Continuously

ANSWER: C. They can run concurrently, and employers should allow them to run concurrently so the highly technical FMLA restrictions and obligations are out of the way as early as possible.

No. 2: If an employer offers “make-work” light duty to employees with workers’ comp injuries or illnesses, does it have to do the same for employees with non-work-related ADA disabilities?

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Weekly catch-up

Posted in Discrimination, HR, Immigration, Sexual Orientation

Hot Dog Man.flickrCC.JeleneMorrisAttention, H-1B employers! The Trump Administration announced this week that it would take a closer look at employers who use workers with H-1B visas. Elizabeth Joiner has the details in this Immigration Dispatch.

Sexual orientation discrimination does violate Title VII, appeals court says. This week’s decision from the U.S. Court of Appeals for the Seventh Circuit is a first, and you can read all about it here. We now have a split in the circuits, with the Seventh saying sexual orientation discrimination violates Title VII, and the Second and Eleventh circuits saying it doesn’t. Are we headed to the Supreme Court?

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