Be prepared even if taking the wait-and-see approach

November 21, 2016 - by: David Kim 0 COMMENTS
David Kim

My son is addicted to movie trailers. Don’t get me wrong, I love movie trailers myself, but my son takes it to another level. I recently checked the YouTube history on the iPad we permit our kids to use and found that instead of playing games on the multitude of kid-friendly applications we downloaded, my son has been digesting trailers for upcoming movies via YouTube on a fairly regular basis. The funny thing is, it hasn’t been my five year old son, but rather my three year old who has taken to this habit, allowing me to come to four conclusions.  Coming soon in cinema hall

First, my three year old somehow knows how to navigate YouTube even better than I do. Second, now I know why my son keeps beating his chest like a gorilla and then roaring (Thank you trailer for Kong: Skull Island), as well as why he keeps asking me “Where are the beasts?” (Thank you trailer for Fantastic Beasts and Where to Find Them). Three, I guess I need to spend Thanksgiving weekend putting some parental restrictions on the Ipad and/or YouTube before this gets really out of hand. And four, there are a lot of movies coming out soon, which makes sense because it is the holiday season.

Want comedy? Office Christmas Party (referenced in my colleague Robin Kallor’s prior post), Bad Santa 2 or Edge of Seventeen might be your cup of tea. Into comic book movies? Doctor Strange is out, but there’s also Wonder Woman and Guardians of the Galaxy 2 coming soon. Hardcore fans of established franchises (i.e. Harry Potter and Star Wars)? Then you’ve got the aforementioned Fantastic Beasts, as well as Rogue One: A Star Wars Story. Interested in movies with early Oscar buzz and that range from traditional dramas to musicals to even science-fiction? Well, Manchester by the Sea, La La Land, Arrival, Fences, Patriots Day, and Passengers are just a handful of these movies.

Of course, there are certain movies that everyone has individually earmarked as a must see, based either on the strength of the trailer, or due to their personal interests. For example, I’m a Star Wars fan, so there’s no way I’m not seeing Rogue One. However, with so many movies coming out, the majority of us take a wait and see approach for most of these films. If a movie gets universal acclaim and great reviews, or friends recommend that something is a must see, then we will typically raise that movie a few notches up on our priority list.

It’s one thing to wait and see whether you want to see a particular movie. It’s an entirely different animal for employers to wait and see when it comes to compliance. However, with a new administration entering the White House, it is normal to question what changes may come, both when it comes to new regulations, as well as how recently issued regulations may be affected.

One example of this is the U.S. Department of Labor regulations with respect to overtime exemptions, which employers have likely begun preparations to comply with over the past several months. These regulations, which were published in May 2016 and become effective December 1, 2016, drastically increase the minimum salary level an employee must be paid in order to be considered exempt from overtime under the white collar exemptions. I won’t go into any further detail on these new regulations as they’ve been in the news for a long time and employers should not only know about these new rules by now, but likely have begun preparations for compliance months ago, whether it be increasing salaries, converting employees to non-exempt, or taking other appropriate business measures.

However, with a new administration in power, it is natural to ask whether there is any chance these new regulations will be modified, amended, or even repealed or overturned. Currently, there is a lawsuit pending in the Eastern District of Texas (consolidated from two separate lawsuits, one brought by over 50 business entities and organizations and the other brought by 21 states) seeking to enjoin the new overtime rules and ultimately arguing that the DOL exceeded its authority in establishing certain components of the regulation. The court has indicated it will provide a ruling on the preliminary injunction motion by November 22nd, and if injunctive relief is denied, a hearing on November 28th on the expedited summary judgment motion will be held.

Even if this litigation does not impact the new regulations, as most experts suspect, there is the possibility of legislative or other agency action that could be taken. The various options that exist are too voluminous to list or delve into here, but it is important to be aware that the coming months may shed further light on these possibilities.

The bottom line is that employers have to be prepared to comply effective December 1, 2016. Employers can certainly take a wait and see approach, balancing the cost of compliance with the risk of liability, to see whether any potential changes to the new regulations come into play through the efforts of the new administration or through judicial means. However, employers must carefully balance this risk as there is no guarantee that any relief, whether it be judicial, legislative, or executive, will occur.

Yes, Cher, you can ‘Turn Back Time’—you’ll just have to pay for it

November 07, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

By the way, if you haven’t heard, the Cubs won something called “the World Series.” Our long, national nightmarearrogant Cubs fanshas now officially begun. Now, onto things that actually matter.  Turn Back Time!

This past weekend, we rolled the clocks back. And though we got an extra hour of sleep (well, you may haveI have two children under four who didn’t realize it wasn’t time to get up yet), the cold, harsh reality is that the days are much shorter and the nights much longer, at least until March.

This annual power to “Turn Back Time” always reminds me of Cher. Everyone remembers Cher, right? I mean, she’s been (or she was, depending upon your age) a pop star since the days of the Johnson administration (the second one, not the first.) Who could forget “I got you babe” sung with her late husband Sonny Bono? (I mean this literally. Who on this earth, who has seen Bill Murray’s Groundhog Day, can forget this song? It’s physically impossible.) And, of course, she made her fans’ kids think she was cool again with “Believe.

The Cher that I remember, however, was something in between the young, blossoming starlet and the aged musical diva. It’s the big-haired, modern-day Cleopatra in fishnet stockings telling a crowd of sailors how badly she wanted to alter the space-time continuum for their love. You know, the music video you couldn’t watch because your momma didn’t approve. Or maybe that was just me.

Anyway, Cher’s tribute to all things 80s aside, the end of daylight savings time brings with it a couple of employment law problems many employers may simply overlook. The first is how to pay nonexempt employees working the graveyard shift when the clock strikes 2:00 a.m. twice. The Department of Labor has issued specific guidance on its website to answer the question. According to the DOL:

  • On the Sunday that Daylight Savings Time ends at 2:00 a.m., the employee works the hour from 1:00 a.m. to 2:00 a.m. twice because at 2:00 a.m. all of the clocks are turned back to 1:00 a.m. Thus, on this day the employee worked 9 hours, even though the schedule only reflected 8 hours.

The Fair Labor Standards Act (FLSA) requires that employees must be credited with all of the hours actually worked. Therefore, if the employee works the scheduled shift, employers must compensate the employee for all hours worked. If this extra hour kicks the employee over 40 hours for the workweek, the employer must pay the employee the overtime premium1.5x the employee’s “regular rate”for all hours worked over 40. Employers must be careful to check automatic payroll calculation software or applications to make sure they account for the extra hour. In large operations, failure to pay for the extra time may cause the employer to incur significant liability in the aggregate.

In addition to payroll challenges, the time change can also bring about changes in employee mood due to lack of sunlight. Known more commonly as “seasonal affective disorder,” this extreme form of common seasonal mood cycles is actually considered a type of depression. According to the Mayo Clinic’s website, employees suffering from seasonal affective disorder may exhibit symptoms of major depression, such as:

  • Feeling depressed most of the day, nearly every day
  • Feeling hopeless or worthless
  • Having low energy
  • Losing interest in activities you once enjoyed
  • Having problems with sleeping
  • Experiencing changes in your appetite or weight
  • Feeling sluggish or agitated
  • Having difficulty concentrating
  • Having frequent thoughts of death or suicide

In light of these symptoms, employers presented with an employee claiming to suffer from seasonal affective disorder should begin the interactive process with their employees to determine what, if any, reasonable accommodation(s) may be available. Failing to pay attention to employee requests can lead to liability. For example, in 2012, the Seventh Circuit Court to Appeals upheld a jury verdict in favor of a school teacher who claimed under the Americans with Disabilities Act (ADA) that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light. (Yes, folks, this is real life.)

On the other hand, if you don’t have a window available, the Job Accommodation Network suggests four basic light products that may reasonably accommodate workers with this disorder, including: “Light Boxes,” “Light Visors,” “Flourescent Desk Lamps” or “Dawn Simulators.” Each of these is meant to mimic the natural sunlight employees are typically exposed to during other times of the year.

Employers also should not rule out the possibility of leave for an employee suffering from symptoms of the disorder. Leave may be covered under the Family and Medical Leave Act (FMLA) or state leave laws depending on the employee’s tenure with the company and state law requirements. Lastly, employers are reminded that, under the ADA, as amended, they cannot take into account the mitigating effects medication may have in improving the employee’s mood or condition, but must instead treat the employee as disabled at all times. At the same time, any negative side effects caused by such medication may also require accommodation.

And the beat goes on…

 

The Intern: delightful movie—risky employment practice

January 12, 2016 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Well, the Golden Globes were Sunday night and all of Hollywood tuned it to celebrate the best of film and television. One movie that was noticeably absent from the nominations (at least in my opinion) was The Intern, a heartwarming film starring Robert DeNiro and Anne Hathaway, that tells the story of a lovable retiree who interns at an e-commerce fashion company when its CEO agrees to participate in a community outreach program that places senior citizens in internships. Although the movie highlights the benefit of internships (both for the intern and the company), in recent years the U.S. Department of Labor (DOL) has taken a dim view of companies that use unpaid interns to augment their workforce.  Internship

Approximately half a million Americans hold unpaid internships every year, with about 40 percent of those working in the private sector for for-profit companies. Under the Fair Labor Standards Act (FLSA), the DOL (and courts) consider six criteria for determining whether an internship can be unpaid:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  2. The internship experience is for the intern’s benefit;
  3. The intern does not displace regular employees but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the intern’s activities, and on occasion its operations may actually be impeded;
  5. The intern isn’t necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern isn’t entitled to wages for the time spent in the internship.

The DOL has found a violation when only one or two of the six factors are met, while courts usually weigh the factors more evenly. As a general rule of thumb, however, the more an internship is used to benefit the employer, and the employee performs productive work, the more likely it is that the intern is an employee and therefore entitled to be paid properly. Conversely, the more an unpaid internship program is structured around a classroom or academic experience (instead of the employer’s actual operations), the less likely the internship will be viewed as employment.

The bottom line is that if you are a for-profit employer and have unpaid interns, there is a very good chance you may be violating the FLSA. To be on the safe side, you should talk to an employment attorney about your company’s internship program or pay the interns at least minimum wage (plus overtime for any hours worked over 40 in a workweek). Oh, and while you’re at it, go see The Intern. It’s a great movie!

HR sports roundup: football, futbol, and fireworks

July 02, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

As we head into the July 4 weekend, your EntertainHR sports reporters cover America’s favorite pastime–litigation!

The women who cheer football got a boost this week when the Oakland Raiders announced they would pay their Raiderettes the California minimum wage of $9 per hour beginning this coming season.  This blog first covered the story back in January when the lawsuit was filed. football, futbol, fireworksWe would not be surprised to see similar lawsuits from other cheerleading squads, particularly in California or other states with employee-friendly labor laws. The attorneys for the Raiderettes who filed the lawsuit will continue to pursue their action against the team. They seek back pay and attorneys’ fees for the alleged violations from past seasons.

The women who play football have filed a lawsuit of their own. A class of current and former players in the Lingerie Football League–now the Legends Football League–have sued the league in Los Angeles superior court for a litany of wage and hour violations based on the league’s alleged misclassification of them as independent contractors and not employees. Employee misclassification is a hot topic in employment law and has been the reason for a blitz of wage and hour class actions in recent years. The U.S. Department of Labor has devoted an entire section of its website to the topic.

One guy who watches futbol was reportedly fired for telling his boss he was out “sick” when he was actually watching a World Cup match between Germany and Portugal. The Chinese man was terminated after one of his supervisors saw his posts about the match on social media. Monitoring social media, in China, can you believe that?! The now-unemployed man was last seen sitting outside a Beijing train station holding a sign stating he was “looking for a humane boss.” Good luck with that.

And finally, a tip for celebrating Independence Day: Don’t set off fireworks in your coworker’s office, even if you’re a judge. It can get you in a lot of trouble.