Employment and Labor Insider - Legalese Is Not Spoken Here

NOTE: Because of the holiday weekend, this will be our "Friday" post of the week. Happy Passover, Easter, or end of March, as the case may be!

"Hippity, hoppity, y'all!"

This is my third and final installment on equal pay -- at least, until I decide to talk about it again. My first post is here, and the second is here.

What is the one simple, cheap, and easy thing that an employer can do to minimize the risk of an equal pay claim?*

*Besides not discriminating, of course, which ought to be too obvious to require mention.

CLUE: It does not require you to hire attorneys or Human Resources consultants. It does not involve sophisticated (or even unsophisticated) statistical analysis.

*Drum roll* "Can you stand the excitement? I sure can't!"

Read on . . .

Continue Reading

YIKES! Lady Gaga: Wage-and-hour lawyer's nightmare!

Lady Gaga has been sued for unpaid overtime by her former personal assistant, Jennifer O'Neill. (No relation to the beautiful star of Summer of '42.) Ms. O'Neill, who has claims under the federal Fair Labor Standards Act and New York state wage and hour law, says that she was at Ms. Gaga's beck and call 24/7 for about 15 months but was paid for only 40 hours a week. (She was paid an annual salary of $75,000.)

According to Ms. O'Neill, Lady Gaga owes her overtime at the rate of 128 hours for every week she was employed (24 x 7 = 168, minus 40 = 128) because she never got a break. Literally. She did not. Ever. If you believe her, anyway. The claimed back overtime is about $400,000, and she also claims she is entitled to other monetary damages.

The lawsuit has been pending since late 2011, and Ms. Gaga's lawyers have filed a motion for partial summary judgment by now, but the lawsuit has become news again because the New York Post just got hold of Ms. Gaga's deposition transcript. (Hat tip to the ABA Journal for the link.)

Now, I happen to be an expert on the subject of personal assistants to the stars because I have seen The Devil Wears Prada, both on an airplane once and on TV a few times. So I know that the life is all-consuming, grueling, and unglamorous in many ways.

The source of all of my expertise on personal assistants and wage-hour law.

And I have to say that I feel kind of sorry for Ms. Gaga. First, Ms. O'Neill was apparently her best friend at one time, and this whole lawsuit appears to be the result of a falling out that occurred when Ms. O'Neill was fired. According to Lady Gaga,  Ms. O'Neill was lazy and forced Ms. Gaga to find her own toothbrush among her 20 suitcases, and Ms. O'Neill refused to give up her bed in Ms. Gaga's private jet to Ms. Gaga's family members. (I know, I know, but that was the job!) Second, you've gotta admit that $75K is a very decent salary for a job that supposedly did not require any "independent judgment or discretion" and that gave the employee access to the lifestyles of the uber-rich and famous, not to mention one heck of a plum to include on her resume. Third, Ms. Gaga probably thought she was treating Ms. O'Neill very generously from a wage and hour standpoint -- assuming wage and hour compliance ever occurred to Ms. Gaga at all before she got sued, which, come to think of it, I am sure it did not.

As Ms. Gaga put it, Ms. O'Neill "slept in Egyptian cotton sheets every night, in five-star hotels, on private planes, eating caviar, partying with Terry Richardson all night, wearing my clothes, asking YSL to send her free shoes without my permission, using my YSL discount without my permission."

You know, the kind of job a 22-year-old fresh out of school with a double major in communications and marketing would kill for. (Ms. O'Neill is in her 40s.)

But, of course, none of that is the point. The wage-and-hour laws are amazingly unconcerned about an employer's intentions, or even other goodies that the employee got for her work. If your employee is non-exempt and worked overtime that you didn't pay, you are pretty much liable for it, and that is that.

In this case, Ms. Gaga may have indirectly conceded that the personal assistant position did not require the exercise of independent judgment and discretion, which means that that the position probably was non-exempt. It also did not appear that there was much dispute that Ms. O'Neill was required to be on call 24 hours a day, 7 days a week.

So, as far as the facts of the case are concerned, it seems that the real fight will be over the nature of the on-call time: was that time essentially Ms. O'Neill's "own," or was it not? If the time was Ms. O'Neill's to use as she pleased (with periodic interruptions), then Ms. Gaga may not have to pay for it unless Ms. O'Neill was actually working. On the other hand, if Ms. O'Neill's "on-call" time required her to stay tethered to Ms. Gaga with no ability to do her own thing (which is what Ms. O'Neill claims), then Ms. Gaga may owe her for the time. Twenty-four hours a day, seven days a week, for about 15 months (minus 40 hours a week already paid). Ugh.

Note to legal nerds: There are other legal arguments that Ms. Gaga's attorneys have made that could dramatically reduce the amounts of any overtime found to be owed. If you're interested, you can read about those defenses in the pleadings I've linked below. (Now back to the fun.)

And, oh, that deposition!

According to the New York Post, Ms. Gaga made liberal (profligate?) use of the "F-word," said, "This whole case is bullsh*t, and you know it," called Ms. O'Neill "a disgusting human being" who was "majorly unqualified" for the job anyway. All on the record, of course. But the part that really would have made me cringe if I'd been her attorney in an overtime case were these gems:   

"This job is a 9-to-5 job that is spaced out throughout the day."

and

"You don't get a schedule that is like you can punch in and play fu**ing Tetris at your desk for four hours and then you punch out at the end of the day."

"I can't believe she said that," the stunned attorney kept repeating to himself as he left the deposition.

Ms. Gaga concluded that she would rather pay her current assistants the money that Ms. O'Neill was demanding: "I'm not going to give it to her so she can go to Intermix and buy herself a new tube top." Too funny!

In other news, Oprah Winfrey's network is being sued for pregnancy discrimination. More on that as it develops.

Here are the links to some select court documents in the Lady Gaga case, which is pending in the U.S. District Court for the Southern District of New York. Ms. Gaga is being sued under her real name, Stefani Germanotta:

Ms. O'Neill's Amended Complaint

Lady Gaga's Memorandum in Support of Motion for Partial Summary Judgment

Ms. O'Neill's response in opposition to Lady's Gaga's summary judgment motion

Lady Gaga's reply

Image credits: Wikimedia Commons. Picture of "Lady Gaga" is from Madame Tussaud's Wax Museum in Sydney, Australia. Third image is Honore Daumier, "The Two Colleagues," from Brooklyn Museum.

Happy new year, everybody! Although I've been on vacation, the news never sleeps, and the Mayans were wrong. Accordingly, I have a few items to catch you up on.

"Ha-ha! We were just kidding!"

UPDATE: Thanks to reader John Perkins, SPHR, for the 2013 Mayan Calendar. Most educational!

"Near occasion of sin" is a legitimate ground for termination, Iowa court says. You've probably already heard about this one because it has received quite a bit of coverage elsewhere. The Iowa Supreme Court has ruled that it is not sex discrimination for a male business owner to fire a female employee because he (or his wife) is afraid he may succumb to her charms. The owner, a dentist, had an all-female staff but was suspiciously chummy with one of his assistants. His wife also worked for him, and her "spider sense" began tingling. Wife became upset. Clergy became involved. Dentist eventually fired assistant while minister stood by. (Probably to make sure he went through with it.)

The terminated assistant sued, contending that she was a victim of sex discrimination under Iowa law. The court has a thoughtful and nuanced discussion but found in this case that the termination was simply the reverse of "sexual favoritism," which most courts find legal . . . albeit perhaps unfair. My quick summary: The consequences of a sexual relationship -- whether good or bad -- generally do not create liability for the employer if sexual harassment is not involved. In other words, as long as the relationship is consensual, you are usually out of luck whether the boss is favoring the one he loves instead of you, or whether he fires you because you're the one he loves. (The masculine shall be deemed to include the feminine, and vice versa.)

"Dahling, my wife says I must fire you. You understand, don't you, my little linzertorte?"

Emails sent through employer's system lose marital privilege. The U.S. Court of Appeals for the Fourth Circuit* upheld the bribery conviction of a politician who was convicted in large part based on incriminating emails he'd sent to his wife through his employer's email system. The court said that use of an employer's email system (and computer) was equivalent to dictating to a stenographer a communication for one's spouse, which the Supreme Court held in 1934 also waived the privilege. The Fourth Circuit decision should also apply in employment litigation.

*The U.S. Court of Appeals for the Fourth Circuit hears appeals from federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

No lactation accommodation retaliation where employee didn't make "complaint." An employee was fired not long after she had asked about where she could express breast milk at an office that she was going to be visiting. (The employer had accommodated her need to express without any problems for quite some time before.) She sued for retaliation under the Fair Labor Standards Act's "lactation accommodation" requirements, but a federal court in Florida issued judgment for the employer, and the U.S. Court of Appeals for the Eleventh Circuit* affirmed. To have a valid claim for retaliation under the FLSA, the appeals court said, the employee had to make a complaint that could reasonably be viewed by the employer as a grievance asserting rights under the FLSA. Because asking where she could express milk was not a "complaint," her retaliation claim failed. She also didn't have a valid "interference" claim because such a claim does not exist under the FLSA, the court said.

*The U.S. Court of Appeals for the Eleventh Circuit hears appeals from federal courts in the states of Alabama, Florida, and Georgia.

To assert a claim of retaliation under the FLSA, you have to complain.

Party on! U.S. Department of Labor updates its 2012 regulatory agenda. Affirmative action requirements for veterans, FLSA as applied to home health care workers, Affordable Care Act rules, and more!

Belated blog carnival! Forgive me for being so late with this (is it ok since we're still in the 12 Days of Christmas?), but Mark Toth of The Employment Blawg hosted the December Employment Law Blog Carnival, featuring a post by me as well as numerous outstanding posts by other bloggers. Please pay Mark a visit if you have not already done so!

Image credits: Wikimedia Commons.

Remember that Supreme Court decision involving alleged retaliation based on an oral complaint of violation of the Fair Labor Standards Act? The plaintiff in the case is now going to get a jury trial.

In its 2011 decision in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court found that an informal, oral complaint could be "protected activity" under the FLSA and remanded the case back to Wisconsin, whence it came. On remand, a federal judge found that the employee had engaged in protected activity but also found that there was not enough evidence that he was terminated because of it, so the judge granted summary judgment to the employer.

The U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, has now reversed on the causation issue, which means that the employee will get a jury trial on his claim of retaliation.

Both the district court and the appeals court agreed that the employee had engaged in legally protected activity, by making repeated complaints (and threats to sue) over the placement of time clocks in the facility. He contended that the clocks were too far away from the area where employees had to don and doff their gowns and prepare to work. (The donning and doffing time was compensable.)

The company contends that the employee was terminated for repeated violations of its time-clock punching policy, for which he received several prior warnings.

The district court and the Seventh Circuit parted company on the "causation" issue. The Seventh Circuit found that there was plenty of reason for a jury to find that the plaintiff was terminated because of his legally protected complaints. (Because this was an appeal of a summary judgment decision, the Seventh Circuit did not decide whether there was retaliation but only that there was enough evidence of it for the case to get to a jury.)

And that's what I want to talk about today -- "causation" in a retaliation case. What do you do if you, as an employer, want to take action against an employee after he or she has taken some type of legally protected action*? Do you just have to live with whatever the employee chooses to dish out?  How do you determine in advance whether the decision will survive a retaliation claim?

*"Protected activity" can include an internal complaint of discrimination, a discriminatory harassment complaint, an EEOC charge, assistance to another employee who alleges discrimination or harassment, protected concerted activity, a workers' compensation claim, a complaint that the time clocks were too far away from the donning and doffing area and that was illegal . . . you name it.

A few guidelines follow, but first, four general rules that will always apply:

GENERAL RULE NO. 1: You can't be liable for retaliation if you didn't know about the protected activity. Kind of obvious, I know, but people forget. If your employee, Joe, called in sick and secretly filed an EEOC charge on December 1, you fired him on December 10, and on December 15 you learned of the charge for the first time after it arrived in the mail, then the termination may be a lot of things, but it was not retaliatory. How can you retaliate against Joe for filing a charge when you didn't even know he had filed the charge? On the other hand, if you heard through workplace gossip on December 9 that Joe was really at the EEOC instead of home recuperating from the flu, then you won't have the "ignorance is bliss" defense. (You may still be able to terminate him for giving a false reason for his absence, but that won't be nearly as easy to defend, especially when the true reason -- which you knew -- was that he was at the EEOC.)

GENERAL RULE NO. 2: You are not a hostage to an employee who has engaged in protected activity. Employees who -- for example -- file EEOC charges while they are still employed often seem to think they have a "shield of invulnerability" from any further discipline or other adverse action. Not true. Yes, an employer must be very cautious in taking action against an employee it knows has engaged in protected activity. But that doesn't mean the employee can get away with being a jerk, or insubordinate, or not doing her job. All it means is that the employee can't be fired for filing the charge.

"Since I filed that EEOC charge, I can leap tall buildings at a single bound! Oh, darn, I forgot about the kryptonite."

GENERAL RULE NO. 3: Before you act, make sure you would have taken the same action against your best employee who did the same thing. Examine your conscience: if this were your favorite employee, and he had done the same thing, would you treat him the same way that you want to treat Joe? If so, then you are probably on solid ground. If not, then back off. You usually won't go wrong being consistent.

If you wouldn't fire these lovable pets for doing the same thing, then don't fire the "protected" employee, either.

GENERAL RULE NO. 4: Consult with employment counsel before terminating, or even disciplining, an employee who you know has engaged in legally protected activity. This is not a sales pitch, I promise. There are at least two good reasons to consult with counsel in advance: (1) a good lawyer will "cross-examine" the decisionmakers and ensure in advance that the decision is defensible (or advise you not to go forward with it), and (2) all of your discussions with the lawyer will be protected by attorney-client privilege.

With those preliminaries, here are some of the reasons that Mr. Kevin Kasten is going to get a jury trial on his retaliation claim:

1. No blissful ignorance with this employer. There was no question that the employer in the Kasten case was aware of his complaints because he had made them directly to the employer.

2. The complaints were apparently considered by the employer in making the termination decision. Well, duh, right? The Human Resources manager testified that Mr. Kasten's protected activity "likely" was discussed when management decided whether to terminate his employment. "Likely"? Of course it was discussed! They would have been fools if they hadn't. How can you "examine your conscience" (General Rule No. 3) if you don't acknowledge the protected activity? You can't -- it is impossible. This acknowledgement by itself would not be evidence of retaliation, but as you'll see there was a lot more going on in Mr. Kasten's case.

3. A supervisor (allegedly) made a (possibly) threatening statement. When Mr. Kasten was about to be suspended for his fourth violation of the time clock policy, and after he had made complaints about the placement of the time clocks, a supervisor allegedly told him, "just lay down and tell [management] what they want to hear, [they] can probably save your job." The court said that a jury could interpret this as a warning to Mr. Kasten to back off on his "protected" complaints.

And, yes, if you're like me, you would have interpreted this alleged statement to mean, "Just go in and tell them you're sorry that you never punch in like you're supposed to, and that you'll do better from now on -- they probably won't fire you." Unfortunately for the company, at this stage of the proceedings, the court had to view the facts in the light most favorable to Mr. Kasten. Mr. Kasten also alleged that he said in the suspension meeting that the placement of the time clocks was illegal. (The company denies this.)

4. Suspicious timing. This was probably the most damning part, from the company's point of view. Mr. Kasten's suspension (with the alleged "threat") took place on December 6. On December 9, a Saturday, "management received an email indicating that Kasten had inquired about class action suits regarding time clock punches." On the following Monday, December 11, Mr. Kasten was fired while still on suspension, and the time clocks were moved to a better location that same day. As timing goes, you can't get much worse than that.

"You accuse me of breakin' the law? You're FIRED."

5. "Similarly situated" employees were treated more leniently. Mr. Kasten had some evidence that other employees who had missed punches but had not complained about illegal activity were not handled with as much "dispatch" as was Mr. Kasten. See General Rule No. 3.

6. Mr. Kasten himself was treated more leniently before he complained. According to his evidence, he was allowed to miss punches all the time before he started complaining that the placement of the time clocks was illegal. After he complained, he was written up for every missed punch. It's possible that the company cracked down on all missed punches after finding widespread abuse of the policy. If so, that could be a defense. But it was tough for the company to establish this when Mr. Kasten also (allegedly) had No. 5 working in his favor.

7. The company messed up in responding to an administrative complaint and didn't make a correction until Mr. Kasten pointed it out. Please see my General Rule No. 4 about consulting with a lawyer. (For all I know, this company did consult with a lawyer, but I doubt it, for the reasons that follow.) Mr. Kasten's termination paperwork said that he was fired for violating the time clock/missed punch policy. OK. After his termination, Mr. Kasten filed a complaint with the Wisconsin Equal Rights Division, and the company submitted a position statement. The position statement said that Mr. Kasten was fired for violating the Attendance Policy. In fact, Mr. Kasten did not have enough absences to warrant termination under the Attendance Policy. It was only after Mr. Kasten pointed this out to the agency that the company made a correction.

Employers, whatever you say to an administrative agency can and will be used against you in a court of law. You need to be sure that your explanations are consistent with prior documentation including the termination paperwork, prior discipline, anything you might have said to a union or to your state's unemployment agency, and everything else. If you offer "shifting reasons," as the courts like to call it, that is some evidence that the stated reason for the termination is a pretext (cover-up) for an illegal motive.

"You better be sure you can substantiate that, ma'am."

Try not to make substantive mistakes in anything that you file with an administrative agency. But if you do slip up, go ahead and make the correction as soon as possible after you discover it. Don't wait for the employee to point it out. If you do, it looks like you were trying to get away with something.

And it helps to provide the agency with a written explanation for the error. For example, "We apologize for our error and any confusion it might have caused. The position statement was drafted by our new Human Resources Manager, who had been on the job only one week and was not yet fully familiar with our policies and procedures. After discovering this error, we reviewed the entire position statement to make sure there were no further errors, and we have verified that everything else in the original position statement is correct." 

Now, all that having been said, I did not consider Saint-Gobain's error to be fatal, just because the termination paperwork -- filled out at the same time as the termination and therefore pretty reliable -- indicated the correct reason. And it's possible (nay, likely) that the company didn't even look at the position statement again after they sent it in. If so, there was no way they would have realized there was a mistake until after Mr. Kasten pointed it out. But this illustrates how important it is to get your facts right in responding to an administrative complaint.

(By the way, this same rule applies to the employees who file complaints. If your case goes to litigation, the company will get to see what you submitted, and if your story has changed, they can use that against you, too.)

"It could be that the purpose of your life is only to serve as a warning to others."

Image credits: Wikimedia Commons.

All right, kiddies. My posts over the last few weeks have been juicy and entertaining. (Or as juicy and entertaining as employment law can get.) But summer is over, and it's time to buckle down.

"I h8 school!"

The Supreme Court of the United States (aka "SCOTUS") began its new term this past Monday, and it will be reviewing at least four employment cases, as well as two non-employment cases that will have an impact on employment litigation. (Hat tip to Bloomberg BNA. Paid subscription required.)

Here's a rundown on the cases that the Court has agreed to hear.

Do you have to have authority to hire fire, demote, or discipline to be a "supervisor" under Title VII?

In Vance v. Ball State University, the U.S. Court of Appeals for the Seventh Circuit* said you do, but other courts have disagreed. The plaintiff in Vance alleged that she was racially harassed by two people who really were supervisors, as well as another employee who may or may not have been. This last person was really important because there wasn't much evidence that the "true" supervisors had harassed her but a lot of evidence that this third person did.

*The Seventh Circuit hears appeals from federal courts in Illinois, Indiana, and Wisconsin.

The definition of "supervisor" is important because if the harasser is not a "supervisor," then the employer is not liable unless it knew or had reason to know about the harassment and failed to act reasonably to stop it. On the other hand, if the harasser is a "supervisor," the employer is strictly liable unless it qualifies for the  "Faragher/Ellerth" defense.*

*At the end of this post, I have a quick and dirty example of how this defense works, just in case you're not familiar with it.

The Seventh Circuit affirmed summary judgment for the university, in part on the ground that this one bad lady was not a "supervisor" because she did not have authority to hire, fire, demote, or discipline the plaintiff.

Oral argument is scheduled for October 10 (Tuesday).

Can you defeat an FLSA collective action by making an offer of judgment to the only named plaintiff before the class has been certified?

(Note to class/collective action nerds: I realize I'm being sloppy by combining "class" and "collective action" terminology here, but I don't know any other way to make myself intelligible.)

Here's the story. A plaintiff sued her employer, alleging that the employer violated the Fair Labor Standards Act by deducting for meal time in which she and her co-workers were allegedly required to work. If true, this would be a no-no. The FLSA allows plaintiffs to bring lawsuits "on behalf of themselves and others similarly situated," which is what this plaintiff sought to do. This is known as a "collective action." (Class actions are a little different and are governed by different rules. That's probably all you need to know about that for now.)

After the plaintiff filed suit but before she got court approval of a collective action, the employer made what is called an "offer of judgment." This essentially means that the employer offered her everything that she could have recovered for the employer's alleged FLSA violations against her (which was $7,500).

Then the employer argued that her lawsuit should be dismissed on the ground that it was now moot, thereby also defeating many claims of all the co-workers who would otherwise have joined her collective action.

Pretty clever, huh? This is why defense lawyers get the big bucks.

A district court in Pennsylvania agreed with the defendant and dismissed the lawsuit, but the U.S. Court of Appeals for the Third Circuit* reversed, saying that this type of tactic means that a defendant could continually "pick off" named plaintiffs one by one and prevent a collective action from ever going anywhere.

*The Third Circuit hears appeals from federal courts in Delaware, New Jersey, and Pennsylvania.

"Well, duh, Your Honors, why do you think we did it?"

Anyway, the Supremes have agreed to hear the case, and oral argument is scheduled for December 3.

"Bay-bee, bay-bee . . . where did our FLSA collective action go?"

When can a benefits plan be reimbursed from a litigation settlement?

I was really hoping my friends at Employee Benefits Unplugged would post on this, and maybe they will later, but in the meantime, I'll do my best here.

An employee was in a devastating non-work-related automobile accident and received disability benefits in the amount of $66,866. He hired a lawyer and went after the driver who was at fault, and from her and various uninsured motorist policies recovered a gross amount of $110,000.

That's why plaintiffs' lawyers get the big bucks. In this case, 40 percent of the $110,000. Without ever going to court.

"Let 'em know YOU MEAN BUSINESS."

So, really, this guy got $66,000 from his litigation settlement. But the benefits plan went after him for reimbursement of the full $66,866 that it had paid out, effectively leaving him in the hole for $866. A federal district court in Pennsylvania decided that the plan was entitled to the full amount (considering the "gross" settlement) and ordered the guy to pay up.

He appealed, and the Third Circuit reversed. According to the court, the Employee Retirement Income Security Act allows a plan to recover "appropriate equitable relief." That means there may be limits on what a plan may recover, the court said. In this case, recovering more than the employee netted would not be "appropriate." Moreover, the employee got his settlement through his own efforts -- the plan did not do anything to help him. So the Third Circuit remanded for the district court to consider what equitable relief for the plan would be "appropriate."

A joint amicus brief in support of the plan has been submitted by the U.S. Chamber of Commerce, the Society for Human Resources Management, the American Benefits Council, and the ERISA Industry Committee.

The U.S. Department of Justice has also submitted an amicus brief. It does not support either side, but according to Bloomberg BNA, argued "that courts retain power under the common-fund doctrine to equitably apportion attorneys' fees, so the Third Circuit's decision should be partially affirmed."

Oral argument is scheduled for November 27.

Well, anyway, here's a link if you care.

The fourth employment case involves which court should hear the claim of discrimination and retaliation claims brought by a federal government employee. I don't think many of my readers are federal employees, so I'll just link to the Eighth Circuit* decision that the SCOTUS will hear for anyone who may be interested. Argument on this one was held this past Tuesday (October 2).

*The Eighth Circuit hears appeals from federal district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Two non-employment cases with big implications for employers

Fisher v. University of Texas. The Supreme Court will hear arguments in Fisher v. University of Texas, in which an undergraduate applicant is challenging the university's admissions standards. The student, who is white and who has since graduated from Louisiana State University, contends that the school's admissions standards violate her rights under the Equal Protection Clause of the U.S. Constitution. A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit* upheld the university's use of race as a factor in selecting applicants for acceptance. The student petitioned for rehearing by the full Fifth Circuit, and nine judges voted against rehearing the case while seven voted in favor of it. Five of those seven joined in a strongly-worded written dissent from the decision not to rehear the case.

*The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi, and Texas.

The American Bar Association supports the University, as do the NAACP, the Lawyers Committee for Civil Rights Under Law, and the National Women's Law Center, and others.

The plaintiff/student has the support of three members of the U.S. Commission on Civil Rights, the Center for Individual Rights, the Mountain States Legal Foundation, the Pacific Legal Foundation, the Asian American Legal Foundation, and others.

The Equal Employment Advisory Council, an employers' group, has not supported either side but in its amicus brief, according to Bloomberg BNA, has "urged the court not to issue a decision that makes it more difficult for federal contractors to comply with government-mandated affirmative action requirements" or "maintain successful voluntary diversity initiatives."

Oral argument is scheduled for this Tuesday (October 10). The University of Texas School of Law has a great website with links to all of the briefs and decisions in this case, as well as any other related material you might care to read.

Comcast Corp. v. Behrend. This is an antitrust case in which the SCOTUS will decide what type of evidence must be considered in certifying a class action under Rule 23 of the Federal Rules of Civil Procedure. Comcast has challenged a Third Circuit decision affirming certification of a class of current and former cable subscribers.

What does this have to do with employment, you ask? Well, Wal-Mart v. Dukes was a sex discrimination class action brought under Title VII. (The linked article links to the actual decision.) In the summer of 2011, the Supreme Court found that the case could not proceed as a nationwide class action because there wasn't enough "commonality" among the members of the putative class. (The women were claiming discrimination in virtually all aspects of employment, and the class consisted of more than a million members. Meanwhile, Wal-Mart had a corporate policy prohibiting discrimination and delegated employment decisions to the store-management level, which meant that there were hundreds of thousands of decisionmakers.)

Since Dukes, the federal courts have been struggling the parties' burdens of proof in determining whether a putative class has sufficient "commonality" to proceed, what evidence should be considered, and what weight the evidence should be given. The Supreme Court's Comcast decision, scheduled for oral argument on November 5, is expected to provide some welcome clarification.

Photo credits: Clipart.com (girl texting at school), Wikimedia Commons.

DON'T FORGET! If you want my quick explanation of Faragher/Ellerth (not that you need it), read on!

Continue Reading

It seems like such an insignificant little case, but it's really a can of exploding snakes.

An Illinois woman who was terminated after she was caught working during her lunch period has won her claim for unemployment. (The employer said that she was not terminated for working but for her behavior after she was confronted about the unauthorized work.)

Your gut reaction was probably the same as mine -- they terminated this lady for working? What, are you kidding me? What is wrong with this employer?

But after I came to my senses, I had a few more thoughts:

*The Land of Lincoln requires that employees who work 7 1/2 hours or more get a 20-minute unpaid meal break after their first five hours of work or earlier. So, presumably, this employer faced potential liability if it looked the other way when employees skipped their meal breaks to work.

*The Fair Labor Standards Act requires that non-exempt employees be compensated whenever they are required or "suffered" to work. "Suffered," for those of you who don't read the King James Version of the Holy Bible, or Stephen King, means "allowed." Therefore, if an employee chronically skips unpaid breaks of 20 minutes or more, the employer could be liable for back pay and (potentially) overtime.

*According to the employer in this case, the employee had been warned several times in the past about working during her breaks.

In other words, this case raises a nice thorny set of issues about "off-clock work."

The problem. It helps to recall that the FLSA was enacted in the 1930's, when the work force consisted of men (as in, "males") going to heavy, dirty factories, doing heavy, dirty labor, punching out at the end of the day, and going home to simple-but-delicious dinners cooked by their loving wives, and surrounded by their obedient children, and listening to FDR's Fireside Chat on the Wurlitzer. (Yeah, I'm sure it was exactly like that, but you get my point.) Or, for a 1960's version, think Fred Flintstone and "the fights" on TV.

As a result, the FLSA still works pretty well in what manufacturing we have left in this country but less so in the Buck Rogers world of the salaried non-exempt employee, who is equally likely to be female and who may place more value on a flexible schedule and be more inclined to "work straight through" so she can leave early and get little Addison and Liam picked up before the day care center closes. (PS - Sometimes guys like flexibility, too.) Not to mention that we now have these devices called "cell phones" and "home computers," which greatly heighten the risk that some "off-clock work" will be performed on any given day. And not to mention that the supervisors of these employees are FLSA-exempt and can work whenever they feel like it with no problem . . . which makes them more inclined to think nothing of their direct reports' doing likewise.

My own opinion is that salaried, non-exempt employees should be able to make their own schedules and be flexible if the job allows it. But nobody consulted me when they enacted the FLSA. (I'm sure they wanted to, but my parents were only preschoolers at the time and hadn't met yet.) So, according to the "Stone Age" law, employers are faced with two unattractive alternatives: (1) keep employees happy by letting them do their thing as long as the work gets done, but risk liability for off-clock work; or (2) obey the law by requiring employees to stick to their required shifts and take all required breaks on schedule, no ifs, ands, or buts, which will make the employees very unhappy, not to mention insulted because they identify with the Buck Rogers world, not the Flintstone world.

I suspect that our Illinois employer chose option 2 because it understandably wanted to stay out of legal trouble. And it's very difficult for an employer to win an unemployment case anyway, especially in Illinois. (Scroll down to "Disqualifications" and "Definitions.") This employer will still probably be in great shape to defend a wage and hour lawsuit.

The solution? I'm not only a lawyer, but I'm also an employer, so "I've looked at life from both sides now." Here are my suggestions for minimizing your exposure for off-clock work while keeping your non-exempt employees relatively satisfied with their jobs:

*Set a "regular" work schedule that fits the needs of your non-exempt employee. Even though you may need to make adjustments as her needs require, get as close as you can with her "regular" schedule. For example, if she has to leave at 3 p.m. to get the kids from school, make the "regular shift" 7:30 a.m. to 3 p.m. if you can. This will not resolve all of your "off-clock" problems but will at least make it likelier that she will be able to put in a full day's work without wreaking havoc in her personal life.

*Tell your non-exempt employee that you do not expect him to work outside his normal hours even if you leave voice mail messages or send emails to him outside his normal hours. If you're like me, you think of all kinds of crazy things at 3 a.m. and want to send an email or leave a message right away because you know you'll have forgotten it by the time all the normal people are at work. Make sure your employees know that you are doing that for yourself and that there is no expectation that they act on your crazy-hour messages, or even read or listen to them, until their regular work day starts. Better yet, do your reminders to yourself in "Tasks" in Outlook or an app like Evernote so that your employee will not feel that you're pressuring him to work outside of his normal hours.

*Constantly REMIND your non-exempt employee that you do not expect him to work outside of his regular schedule even if you leave messages after his normal hours. Whenever you leave an outside-work-hours message, be sure to preface it with "When you come in tomorrow . . ." or "This can wait until you're back in the office, but . . ." so that he clearly understands you're not expecting him to take care of it right then and there.

*Make sure your non-exempt employee knows to include on her time records any "extra" hours she put in. You will never be able to avoid some work outside normal hours. But make sure your non-exempt employee understands that she is to be paid for this time and must put it on her timesheet. A lot of non-exempt employees do not realize this -- they think of themselves as professionals, just as you do.

*If you can't afford to pay overtime, let your non-exempt employee "make up" the extra work time by taking off early . . . in the same workweek. Unless you're a government employer, there is no such thing as "comp time." But the FLSA overtime requirements apply only to hours worked in a single workweek. So if you need for your non-exempt employee to work late on Monday, give her Friday afternoon off. She'll probably love it, and if the afternoon off gets her hours for the week to 40 or less, you won't owe any overtime. (This is what they call a "win-win.") To repeat: the "make-up" time off must be taken in the same workweek. If it can't be made up in the same workweek, you will owe the overtime pay.

NOTE TO CALIFORNIA EMPLOYERS: In California, overtime is calculated on a daily basis, so this won't work for you.

OK, OK, but what do you do if your employee continues to disobey your instructions to avoid off-clock work?

*Do treat it as a disciplinary issue. First, make sure your expectations have been clearly communicated and that you are not "winking" at off-clock work. Realize that most employees want to do a good job and please their bosses, so make sure you aren't giving off vibes that make your employees think off-clock work is expected, no matter what you may say.

If you have not communicated your expectations clearly before, do so now. If you used to "suffer" off-clock work and have decided to turn over a new leaf, make sure your employees know that the rules have changed and that you sincerely mean it. Once you are comfortable that they know (and believe) the expectations, start with an oral counseling the first time you catch them working off the clock. If it happens again, up it to a written warning. Continue with the progressive steps, and if you have to eventually terminate, then terminate. Even if you don't win your unemployment case, that's not the end of the world. Much better to lose the unemployment "battle," but prevent or win a collective or class action "war" under the FLSA or state wage-hour law.

*Do. Not. Dock. There may be some very limited instances in which you can dock (but don't ever try it without the advice of qualified counsel), but in 99.9999 percent of the cases, you should not dock an employee's pay when the employee worked without authorization.

One final word of caution: Pay attention to your surroundings. You may see employees looking like former President Ford in the black-and-white photo above, or coming in early, or leaving late. If you see those goings-on and don't do anything, chances are you will be found to have "suffered" your employees to work.

Bonus word of caution: In case the preceding post has not made this clear, "salaried" does not equal "exempt." (Scroll down to Number 3.)

After a great holiday feast, isn't it fun just to eat the leftovers? Like a nice, cold roast beast sandwich with a wedge of leftover pie? Yum!

Here are some great labor and employment blog "leftovers" from the holidays that I hope you will enjoy as much as I did, followed by a few new year's resolutions for employers and employees. Please add to my list!

In case you were chillaxin' last week and missed it, here is a link to my 2011 labor and employment year in review. With President Obama's recess appointments (thanks to Eric B. Meyer of The Employer Handbook), it's already getting stale, so hurry up and eat!

More tasty cold stuff from around the internet:

The Evil HR Lady tells you how to know if you are the "Kim Jong Il" of your company. Funny, and good advice, too.

Daniel Schwartz of the outstanding Connecticut Employment Law Blog uses his Magic 8 Ball to let us know what to expect in the world of employment law in 2012.

And Donna Ballman of Screw You Guys, I'm Going Home uses the magic 8-ball app on her iPad to make her 2012 predictions from a plaintiff's perspective. Donna, you are so high-tech!

Philip Miles of Lawffice Space shares with us his Top 5 Employment Law Cases of the Week for 2011. If you ever wanted to know about "Crazy Bi**h Bingo" (and who doesn't?), be sure to check Philip out!

Here's a favorite from Jon Hyman of Ohio Employer's Law Blog: Resolve this year to properly handle no-fault attendance policies. Since the $20 million EEOC/Verizon settlement, this is more important than ever.

OK, is that tryptophan kicking in yet? But, wait! Don't get too comfy, because now it's time for some employment New Year's resolutions:

1. If I am an employer, I will make sure all of my supervisors and managers have harassment training this year. At a minimum, the training will cover harassment based on race, national origin, religion, disability, and age, as well as sex. If my state or company policy prohibits other types of harassment, I will be sure that those types are covered as well.

2. If I am an employee, I will refrain from using social media to bad-mouth my boss, my company, my co-workers, or my customers . . . even if the National Labor Relations Board says it's legal for me to do so.

3. If I am an employer, I will review my attendance, medical leave, and reasonable accommodation procedures to make sure that they comply with the Americans with Disabilities Act. If they don't, I will make the appropriate changes right away. No procrastination!

4. If I am an employee, I will show up for work on time every day unless I have a very good reason not to, and I will give my employer a fair day's work for a fair day's pay, with no "drama."

5. If I am an employer, and if I haven't done it recently, I will have a wage-hour audit in 2012 to ensure that my employees are properly classified as exempt/non-exempt, that the non-exempt employees aren't working off the clock, that I'm not violating child labor laws (especially if I'm in the food or hospitality industry), and that I don't have any employees whom I am improperly treating as "independent contractors." If it turns out that I'm doing anything wrong, I will promptly fix it. No dawdling!

6. If I am an employee, I will comply with my employer's rules about appropriate behavior at work, including but not limited to rules pertaining to honesty, harassment and bullying, and safety.

7. If I am an employer, I will make sure that I am in compliance with the Genetic Information Non-Discrimination Act, and in particular that I am providing the "safe harbor" language whenever I sent one of my employees to the doctor.

8. If I am an employer, I will re-familiarize myself with the concept of "retaliation" and consult with an attorney whenever an employment decision looks like it may be close to the line. I will not wait until after the damage has been done.

Ugh. And this post started out so nice. Please add any resolutions you think employers or employees should make this year. And a safe and prosperous 2012 to you all!

Don't eat that pretty red apple, Snow White!!! It has poison in it!!!!

You know the old saying, "If it seems too good to be true, it probably is"? Well, it appears that this may be the case with the new "sweet deal" the Internal Revenue Service is offering to employers who agree to reclassify their "independent contractors" [sic] as "employees" in exchange for some admittedly generous breaks.

The IRS announced this week that it is offering a REALLY, REALLY NICE THING to employers. :-)  If an employer promises that it will treat its independent contractors as employees going forward and enters into an agreement with the IRS, the IRS will assess employment taxes for only the tax year before the agreement was entered and at a reduced rate, with no penalties or interest, and no audits. The program is aimed at small employers, but all employers are welcome. Jewell Lim Esposito at our sister blog, Employee Benefits Unplugged, has more details about the IRS deal and thinks it's great from a pure tax standpoint.

I agree. But, as Jewell also notes, the news release says nothing about amnesty on all liability resulting from a misclassification.

I must admit that I wondered why this Administration, which is usually aggressive toward employers, is all of a sudden being so sweet and lovable?

(I am such a cynic.)

It then occurred to me: But, of course! This is to allow that other agency, the U.S. Department of Labor, which presumably will not be a party to the IRS/employer agreement, to come in and sue the pants off the employer for back benefits and wage-hour violations. Because, you see, misclassified "independent contractors" don't get benefits or overtime, and they may not even be getting the minimum wage once their "fee" is divided by hours worked.

My paranoia was really raging now, and I remembered another news item that came out at the beginning of this week: Secretary of Labor Hilda L. Solis announced a "cooperative" initiative in which the IRS, the DOL, and 11 state governments* are going to start working together to fight misclassification of employees as independent contractors. In addition, the Office of Federal Contract Compliance Programs (the affirmative action guys) and the Occupational Safety and Health Administration are among the agencies who will be receiving and sharing information.

*The 11 states who entered into the memorandum of understanding or have agreed to do so are Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington.

(Hat tip to Bureau of National Affairs for both of these news items.)

So! Aha! Putting it all together, here's what the deal really appears to be: A naive (probably small but could be large) employer who has some misclassified folks will read about the IRS deal and think, "What have I got to lose? I'd be a fool to turn this down!" So he signs the agreement with the IRS.

Bam! Six months later, the DOL -- who has received from the IRS the list of unsuspecting employers who entered into this agreement admitting that they were doing it wrong -- comes out for an investigation and hits the employer for overtime and possibly minimum wage violations. Then, the employer's state government -- armed with the same information -- comes out and clobbers the employer for workers' compensation premiums and benefits, and possibly other benefits that the state requires employers to offer to employees. Bam! Bam!

But, wait! There's more! The newly classified employees might have claims for other employment benefits as well, as Microsoft learned the hard way. Bam! Bam! Bam! Then, OSHA and the OFCCP and who knows who else can come in and kick the employer a few more times while he's down. Bam! Bam! Bam! Bam! Bam! (etc.)

THE MORAL: If you have "independent contractors" who are misclassified, by all means get that fixed as quickly as you can. As long as the workers are misclassified, you are potentially liable for back taxes, including FICA, and penalties, back benefits, and back wages. In fact, you can even be liable for severance pay in the event that the faux independent contractor was let go under circumstances that would have entitled her to severance if she'd been an employee. (I actually had this happen to a client once.)

To repeat, if you're doing it wrong, stop it now. But don't be too eager to enter into this deal with the IRS, and definitely do not enter it without consulting with your attorney. Situations vary, and the IRS deal may be good for some, but you also may be much better off taking your chances with an IRS audit (which may or may not ever happen). Meanwhile, you will not be erecting a large neon sign with flashing lights saying, "Here I am, Hilda Solis and everybody else -- I'm guilty -- come and get me!"

Just call me Jim Garrison.

Odds and ends from the employment law world this week:

Facebook rant about wages didn't create retaliation claim. Molly DiBianca of the Delaware Employment Law Blog reports on a decision from a federal court in Florida saying that a Facebook rant about an employer's alleged violations of the Fair Labor Standards Act overtime provisions was not "protected activity" that would trigger the FLSA's anti-retaliation protections. 

Cavalier about age discrimination? The EEOC reached a $1 million class settlement with Virginia's Cavalier Telephone, LLC, over allegations that the company used recruiters who made comments that showed age-based bias including that they did not want to hire anyone who was "over 40 and pudgy." The two class representatives also alleged that they were demoted and terminated after they complained. The EEOC is on a roll with this one and its recent $20 million settlement with Verizon, which resolved claims related to application of a no-fault attendance policy to employees with disabilities.

FMLA leave for death of a child? Sen. Jon Tester (D-Mont.) has introduced legislation that would expand the Family and Medical Leave Act to include job-protected leave for the death of an employee's son or daughter. The bill, which has no co-sponsors, is entitled the Parental Bereavement Act (S. 1358), and would apply to employers of 50 or more employees.

You go, girls! The federal Bureau of Labor Statistics reports that the wage gap between men and women narrowed slightly in 2010, with women now making 81.2 cents for every dollar that men earn. The "wage gap" statistics do not control for position held, years in workforce, educational level, or any other non-discriminatory reason that might explain the gap. 

How can this be? Jon Hyman of Ohio Employer's Law Blog reports that the EEOC has sued a nursing home called Menorah House for allegedly refusing to accommodate the need of an employee to observe the Sabbath. HUH? Granted, the employee is not Jewish but a Seventh-Day Adventist, but still!

Why couldn't the pony talk? It was a little horse. Eric B. Meyer of The Employer Handbook blog discusses whether a miniature horse can be a reasonable accommodation under the ADA. Inquiring minds want to know!

Plaintiff's lawyer Donna Ballman and The Evil HR Lady have had good posts recently on common employee misconceptions about employment law, including the "right" to see what is in one's personnel file and the "right" to take a break.*

*Depending on where the employee lives, he may have these rights, but in many states he does not. And the federal Fair Labor Standards Act does not require breaks. 

What's good for the goose is good for the gander. So, what are the most common misconceptions about the law by employers? Here are five that I see frequently:

No. 1 - "This is a right-to-work state. We can fire you at any time, and for a good reason, a bad reason or no reason at all." This is wrong on so many levels. First, many states -- particularly in the North and Northeast -- are not right-to-work states. But even assuming the speaker really is in a right-to-work state, he has misunderstood what it means. A right-to-work state is one in which employees cannot be forced to join a union or pay union dues as a condition of employment. The speaker is confusing "right-to-work" with "employment at will," which brings me to my next misconception . . .

No. 2 - "This is an employment-at-will state. We can fire you at any time, and for a good reason, a bad reason or no reason at all." Oh, yeah? I dare ya to try firing someone for a bad reason or no reason, even in an employment-at-will state. I've blogged about this before. Even if your state is technically employment-at-will  (and not all are), you still can't terminate an employee for an illegal reason. And there are an awful lot of illegal reasons -- so many, in fact, that they swallow the rule.

Allow me to use my relatively employer-friendly home state of North Carolina as an example. Even though we are at-will (allegedly), many grounds for termination are unlawful, including (1) because the employee refused to break the law, (2) because the employee filed or is expected to file a workers' compensation claim, (3) because of the employee's race, color, national origin, sex, age, or disability, (4) because the ground for termination is found to have violated a "public policy" of the State, (5) because the employee filed a state workplace safety complaint, (6) because the employee exercised her rights to join or not join a union (see #1, above!), (6) because the employee uses lawful products during non-working hours, and on and on and on, yada yada yada. And this doesn't even count all the federal laws that also protect employees in all 50 states.

And you may say, "But I'm not firing the employee for any of these illegal reasons! I just don't like her hairdo!" Technically and superficially, that would be a "legal" reason to terminate an employee in an at-will state . . . if she's foolish enough to agree that this was the reason. But you can be sure that the employee fired because of her bad hairdo will claim you really fired her because she was a woman (illegal), because of her race or national origin (illegal), or because she testified truthfully in her best friend's unemployment hearing (illegal). Which means, at the very least, an expensive lawsuit for you and, at worst, a jury verdict in her favor because who would ever believe that an employer would get rid of a good employee just because she had bad hair?

3. "Exempt = salaried." This one is very common. Employers frequently believe that they have to pay overtime only to "hourly" employees and that everyone who is "salaried" is FLSA-exempt. Not true, and it can be very expensive to find out you've been doing it wrong, especially if you find that out during a collective action brought by all of your non-exempt "salaried" employees. Under the FLSA, being salaried is usually a necessary condition for exemption, but not a sufficient one. The employee must also satisfy the "duties" requirements for the executive, administrative, or professional exemptions. (There are exemptions for outside salespersons and certain computer employees that do not require payment of a salary.) This is why clerical employees, for example, fill out time sheets and (should) get overtime if they work more than 40 hours in a workweek.

4. "Just treat everyone the same, and you'll never go wrong." This was great advice in 1970, when "non-discrimination" was a new-fangled idea, but not any more. Generally, an employer does want to be fair and be as consistent as possible. However, there are some major exceptions that can really cause problems if the employer is not aware of them. First, there is the Americans with Disabilities Act, which I have discussed at length elsewhere and which requires reasonable accommodation in appropriate cases. "Reasonable accommodation" by definition requires that you treat one employee differently from other employees. Covered federal contractors face similar requirements under the Rehabilitation Act and the Vietnam-Era Veterans Rehabilitation and Adjustment Act and its amendments. In addition to these laws, Title VII requires that employers make reasonable accommodations to the religious beliefs and practices of employees. In this context, as well, "accommodation" means "differential treatment."

As Ralph Waldo Emerson said, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

5. "Women make only 59 cents for every dollar that men make, and it's because sex discrimination is rampant in the workplace even though it's been illegal for almost 50 years." This one drives me crazy, so I had to save it for last. First, ladies, we are moving up in the world. We are now making 77 cents for every dollar that men earn. So there! More importantly, even the 77-cent statistic is dishonest because it measures only the average pay of all men versus the average pay of all women. Some little details not taken into account include, oh, I don't know -- job held, education, time in workplace, full-time versus part-time . . .. 

Seriously, there is a gender-based pay gap, but it is not at all clear that discrimination is the reason. A more likely explanation is the difference in men's and women's lifestyle choices.

Statistically speaking, women are more likely to start their paid-work lives later and to take more breaks, usually as they bear and rear children. (We break for children.) For family reasons, women are also more likely to work in "clean, safe" jobs with regular hours and minimal travel, and to seek part-time work schedules. The physically demanding, dangerous work with rotten hours or extensive travel is usually performed by men. (Please note that I am speaking statistically and realize that there are exceptions to these rules.)

I have also seen that our bad economy has resulted in more male than female unemployment. (Scroll down to second-to-last paragraph.) So it may be that men are really the ones getting the raw deal, not women. Or, perhaps we can just agree that things are tough all over, and for all of us.

I'd love to hear from you if you have more employer misconceptions to add. And, to all of you readers who are moms, Happy Mother's Day. I hope that you think your kids were well worth the pay gap that "they" caused. Mine were!

The U.S. Department of Labor is planning to impose new “affirmative action” requirements on employers, requiring them to develop “plans” to address workplace safety, equal employment opportunity, and wage and hour/employee classification issues.

For the most part, these requirements – called “Plan/Prevent/Protect” – will not be limited to federal contractors but, rather, will apply to all employers covered by the relevant laws.

The proposed changes are dramatic, and shift from what the DOL calls “catch me if you can” (in other words, employer is presumed compliant unless the government is given reason to believe otherwise) to “Plan/Prevent/Protect” (in other words, employer is presumed guilty unless it can prove otherwise). “[E]mployers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with achieving compliance,” says the DOL, and “compliance will be non-negotiable . . ..” (Emphasis added.)

The “Plan” component will require employers to enlist employees in “identifying and remediating risks of legal violations and other risks to workers.” The plans must be made available to the workers “so they can fully understand them and help to monitor their implementation.”

The “Prevent” component will require employers to “thoroughly and completely implement the plan in a manner that prevents legal violations. . . . The employer . . . cannot draft a plan and then put it on a shelf. The plan must be fully implemented . . ..”

The “Protect” component will require employers to ensure “that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”

In the context of compliance with the Fair Labor Standards Act, Plan/Prevent/Protect will require that employers provide information to employees about how their pay is calculated, and prepare a “classification analysis” with respect to any job that it treats as FLSA-exempt. Of course, the analysis will have to be made available to the employees and the government. The DOL will issue proposed regulations on Plan/Prevent/Protect at some unspecified point in the future.