When the floodgates open, expect water at your doorstep

November 13, 2017 - by: David Kim 0 COMMENTS
David Kim

About a month ago, my colleague Kristin Gray wrote about the breaking Harvey Weinstein scandal and best practices for employers to prevent harassment and discrimination from invading the workplace. And while I have no intention of reiterating any of the excellent points Kristin covered in her piece, it would be ignoring the obvious not to say that a lot has transpired since that breaking news story.

Virtually every day since then, additional allegations of sexual harassment and misconduct have been made against prominent public figures. Not just individuals in Hollywood (which include everyone from executives, producers, writers and actors), but also against politicians, publishers, and editors from various media organizations, news contributors, restaurateurs, and a slew of others. On top of these serious allegations, numerous individuals (both public figures and “regular” individuals like you and me) have used social media to share their own stories or harassment, not only sexually based but also other forms of harassment and bullying within the workplace.

Trending hashtag Metoo on concrete wallIt is not an exaggeration to say that this topic has quite literally been part of our daily news cycle for the past month. And it isn’t hyperbolic to state that employers need to be aware that, as a result, this topic is something they need to be able to address and address properly as harassment claims are likely to increase. There’s a reason why statistics demonstrate that Fair Labor Standards Act litigation increases after changes to wage and hour regulations are debated in the public realm, whether they are implemented or not. Sure, noncompliance is certainly a factor, but so is awareness, which results in empowerment, which results in action.

Now I am not comparing the clearly invidious acts of sexual harassment and other forms of harassment, which should be taken seriously at all times, with general wage and hour law. The reality, however, is that public awareness of these types of harassment allegations has undoubtedly increased the conversation regarding misconduct in the workplace. When celebrities talk about struggling with drug addiction, recovering from a severe medical prognosis, or dealing with another tragedy in their lives, they often want to share their story to motivate or inspire those with a similar struggle. While many hear these stories and are moved by the message, they might not be technically inspired to act since they didn’t experience what the person sharing their message did. But even if it’s not you, there is someone out there who has been motivated by that story in one way or another, whether it’s to kick their habit, resolve to overcome the disease they’ve been diagnosed with, or to simply fight harder despite the tragedy in their lives.

The same goes harassment allegations. It is no coincidence that the floodgates have opened since the Weinstein allegations came to light. People who have experienced similar forms of mistreatment have felt empowered to come forward with their own stories and the sheer number of allegations that have been levied make clear what we already know, that sexually based and other forms of harassment continue to exist in all forms of the workplace.

In March of this year, Senator Al Franken of Minnesota introduced a bill known as the Arbitration Fairness Act of 2017, which seeks to prohibit predispute arbitration agreements of employment, consumer, antitrust or civil rights disputes. Due to the recent spate of allegations regarding sexual harassment, those in favor of the bill have now specifically highlighted how victims of harassment in the workplace would benefit if they were not forced to go to arbitration, but rather could have the benefit of a trial by jury. While there are certainly contrasting arguments regarding the benefits to both parties in arbitrating claims, recent events of the last month demonstrate how social consciousness can affect the discussion of lawmaking.

But social consciousness also affects our everyday lives and workplaces. There can be no doubt that the social discussion surrounding sexual harassment will inspire and empower those in the workplace to also come forward with their stories, as it should. Employers, for their part, must be aware that they must be fully prepared to address any such allegations. Large companies throughout the country have instituted or fast-tracked mandatory harassment training in a direct response to the high-profile allegations in the news. All employers should consider these steps as well. As stated, the floodgates are open and employers must ensure that they timely treat these allegations completely and appropriately, or else risk drowning.

In honor of Labor Day, some time sheet tips to beat FLSA off-the-clock claims

September 05, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Ah, Labor Day. Family barbecues, a trip to the beach, your last chance to wear white, time spent napping and binging on Netflix, or just a simple day of relaxation. However you spent the long weekend, I hope you enjoyed some rest from your labors. As an employment lawyer and a mother, the word “labor” has two rather negative connotations for meas in “labor pains” and, even worse, the “Fair Labor Standards Act.” I will spare you the details of the former and focus instead on the latter in today’s post.  Overtime (2) read more…

HR issues that arise when natural disasters hit

August 29, 2017 - by: Robin Kallor 2 COMMENTS
Robin Kallor

Natural disasters, like Hurricane Harvey, raise a host of issues for employers, regardless of whether these employers have a direct presence in the affected areas or whether they have employees residing in or telecommuting from them. Sometimes employers are forced to close or are able to remain open in some capacity, but employees are not able to travel to work or need to attend to emergent matters during or in the aftermath of these types of events. Some of the more commonly asked questions are addressed below. Notepad with disaster plan on a wooden table.

1. If there is a forced closure of the workplace, must an employer pay its employees their wages during this shutdown period?

Under the Fair Labor Standards Act and applicable state laws, non-exempt employees must be paid for all hours worked. In the event non-exempt employees are not working during this shutdown period, they are not entitled to be paid wages for this period when they perform no work.  There are exceptions to this–for example, if the employer compensates employees under the fluctuating workweek model or if union contracts provide otherwise in unionized workforces. Additionally, some states have “reporting pay” minimums in the event the shutdown occurs after the employees report to work.

On the other hand, exempt employees must be paid their weekly salary for any week in which they perform some work for the employer. Therefore, for shutdown periods spanning less than one week, they must be paid their regular weekly salary for this week even though they were not working during a partial week in which the employer was shut down.

2. May an employer permit employees to work remotely?

Employees may be permitted to work from a remote location; however, employees must ensure that non-exempt employees are paid for all hours worked. Therefore, non-exempt employees must still clock in or provide some form of accounting of the hours that they worked, and the employer’s ability to monitor these work hours is limited.

As to exempt employees, if the shutdown period is a full week, exempt employees would not be entitled to their weekly salary for that full week. If the exempt employee works remotely, that remote work will constitute work performed in that week, thereby entitling the exempt employee for their full weekly salary for that period of time.

3. What happens if the employer’s business is open, but the employees are not able to travel?

Again, under the FLSA, non-exempt employees are entitled to be paid for only the time that they work, regardless of whether the employee do not work because the employer shuts down or the employee cannot travel to work.

Exempt employees are not entitled to be paid for full days in which they perform no work under these circumstances. Therefore, if they come to work late, they cannot be deducted a partial day’s absence; however, if they are absent for a full day, this time constitutes personal time and they are not entitled to their salary for these full days.

4. Can an employer permit an employee to use accrued but unused vacation for this period of shut down if they would not otherwise be entitled to their wages?

Yes. An employer may permit an employee to use their accrued but unused vacation time if they are not able to travel to a workplace which is open or unable to work due to a shutdown.

5. If an employer does pay an employee for the shutdown period, is that time counted toward the 40 hours for overtime purposes?

No. If an employer chooses to pay non-exempt employees for time that they do not work due to a shutdown, that time does not constitute “working time” and thus isn’t counted toward the 40 hours for overtime purposes.

6. What are the protections for employees who need to take time off during this time?

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. For example, if an employee is suffering from anxiety due to the hurricane that is corroborated by a medical certification and the employee is eligible for FMLA leave, then the employee is entitled to up to 12 weeks of leave under the FMLA leave.

Additionally, the FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to activate duty, in support of a contingency operation. Also, the FMLA allows eligible employees to take up to 26 weeks of job-protected leave in a 12-month period to care for a covered servicemember with a serious injury or illness.

In addition to the FMLA, the Americans With Disabilities Act (ADA) and applicable state law mandates that employers provide reasonable accommodation to otherwise qualified individuals with disabilities. An extended leave of absence can constitute a reasonable accommodation. In the event an employee is suffering from some form of disability due to the hurricane (e.g., depression, anxiety, or PTSD) and requests a leave of absence, that must be considered even if the employee is not eligible for FMLA leave or requests a leave beyond the 12-week FMLA leave entitlement.

Moreover, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who are part of an emergency services organization (such as the National Guard or a Reserve unit). USERRA prohibits discharging, denying initial employment, denying promotion, or denying any benefit of employment because of a person’s membership, performance of service, or obligation to perform service in uniformed service.

Finally, when an illness or injury results from the hurricane, applicable state law may mandate paid sick leave.

7.  How can we show concern?

Employers should engage in regular communication with employees where possible so that they are aware of the employer’s expectations. Moreover, safety concerns are paramount to all others. Finally, employees having difficulties coping with the aftermath should be encouraged to use the employer’s Employee Assistance Program (if one is offered) or take advantage of similar alternative services that may be covered under the company’s medical plan.

Avoid singing the blues: how employers can mitigate wage/hour liability

May 30, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

In the last few years, there have been multiple headlines noting that celebrities are being sued for their (or their businesses’) failure to pay wages in accordance with applicable state and/or federal law. Two such recent lawsuits involved famous singers.

Overtime (2)

First, Lady Gaga had a lawsuit brought against her by her former personal assistant, Jennifer O’Neill. The assistant sued Gaga for $400,000 under New York state law and the federal Fair Labor Standards Act, alleging that the singer failed to pay her for numerous hours of overtime (including being made to sleep in her bed with her!). O’Neill claims that, instead, the singer only compensated her at a flat rate of $75,000 annually, and that the failure to pay her overtime hours was unlawful. Lady Gaga and O’Neill settled out of court weeks before the trial was scheduled to begin.

Rapper T.I. also recently became the object of wage and hour violation allegations. He was an owner of a now-defunct Atlanta restaurant, Scales 925. A number of past employees of his restaurant filed suit against him and others, alleging that they were forced to work overtime without being compensated for the hours at the required overtime rate. The lawsuit claimed more than $50,000 in unpaid wages.

T.I. claimed that he did not exercise any control over the management of the restaurant or its operations and should not be held personally liable (as most Human Resources professionals know, wage violations can have personal liability attached to them, unlike most EEO claims). T.I. claimed, instead, that he served as a silent financial investor and had no knowledge of the alleged wrongful pay practices.

Of course, if famous musicians who have teams of attorneys swarming around them all day can find themselves saddled with unpleasant wage-hour litigation, the average company certainly can! Here are tips on how to mitigate risks with respect to wage and hour complaints:

  • Require all employees to record their time daily.
  • Audit job descriptions for exempt positions to determine if they match the actual duties performed.
  • Have employees sign off on pay and time records, noting that they are accurate.
  • Require employees and their supervisors to sign off on any changes or alterations made to time records.
  • Train managers on lawful pay practices and company policies and procedures with respect to same, especially those related to “off the clock” work.
  • Put pay practices in writing and have them signed by the employee, stating that he or she has reviewed them and understands them and agrees to report immediately any failure (or perceived failure) by the company to pay them properly.
  • If you are a franchisor, be sure that you are not influencing the franchisees’ pay practices so you can avoid joint-employer claims.
  • Obtain written authorizations for any deductions made from paychecks. Keep in mind that many states have specific laws or regulations as to how such authorizations must be worded and handled.
  • Pay employees for breaks or meal periods that last less than 20 minutes.

By following these practices, you can avoid (or at least decrease the risk of) costly lawsuits by employees who claim that the company failed to pay them owed wages. Unlike Lady Gaga and T.I. who had to sing the blues, you want your company to hum a happy tune.

 

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…

 

Hurricane season brings unique employer issues

October 10, 2016 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

In the aftermath of Hurricane Matthew, evacuation orders are lifting and recovery efforts are in their early stages. Employers are facing a number of storm-related issues as they prepare to resume normal operations. Here are just a few of the questions employers are asking.  Hurricane Season Sign With Stormy Background

1.  Does the Fair Labor Standards Act (FLSA) require me to pay employees who miss work because of the weather?  It depends on whether the employee is exempt or non-exempt. If the business closes because of the weather, the FLSA requires employers to pay an exempt employee his or her regular salary for any shutdown that lasts less than a week. If the business remains open but an employee cannot get to work because of the weather, an employer can deduct an exempt employee’s salary for a full day’s absence. Employers generally aren’t required to pay nonexempt employees for any days that they don’t perform any actual work. However, this doesn’t apply to nonexempt employees who are paid on a fluctuating workweek basis.

2.  Am I required to pay an employee for on-call time? Under the FLSA, if the employer requires an employee to be on-call while the office is closed due to weather emergency and the employee cannot effectively use the time for his or her own purposes, the employer must pay the employee for the on-call time.  Employers are not required to pay employees who are at home and available to the employer but able to use the time for their own purposes. Check your state laws for any additional requirements.

3.  Are employees who are discharged as a result of the storm entitled to unemployment compensation? Employees who are out of work for reasons other than their own misconduct generally are entitled to unemployment compensation as long as they have met the state law requirements. In some states, an employer’s unemployment compensation account isn’t charged when an employee is discharged because of a natural disaster.

4.  Are workers’ compensation claims the exclusive remedy for employees who are injured at work due to conditions that resulted from a tropical storm or hurricane? Generally, employees who are injured during the course and scope of employment are limited to workers’ compensation claims and cannot sue the employer in court over the injuries. If, however, the injuries are the result of an employer’s deliberate or intentional conduct rather than an accident, the employee may have the ability to sue the employer in court. Employers should check their state laws.

Employers may be faced with a variety of employment-related issues during the hurricane season. As Hurricane Matthew recovery efforts continue, it’s important to keep in mind that employers are responsible for providing a safe and healthful workplace for their employees.  Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations that workers are likely to conduct. The Occupational Safety and Health Administration (OSHA) has some excellent resources available on its website to help employers make decisions to protect workers.

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!

Dirty Dancing: hot summer hiring considerations

Kristin Starnes Gray

With summer quickly approaching, it’s time to pull out those warm-weather clothes and dust off my copy of Dirty Dancing, one of my favorite summer films. Who can forget the summer of 1963 when Baby performed her triumphant lift, Johnny taught us about standing up for others no matter what it costs us, and we all learned that no one puts Baby in the corner. Like many resorts and other types of employers, the fictional Kellerman’s resort in the Catskills Mountains (actually filmed in North Carolina and Virginia) has a very clear peak season in the warmer months with the hiring of a lot of additional employees, including high school and college students seeking summer employment.  Of course, any time an employer hires minors, there are special considerations and it is important to be familiar with applicable federal and state law. iStock_000057051752_Full

The Fair Labor Standards Act (FLSA) is the federal law governing child labor, but it must be read together with state laws (which may be more stringent and must be observed). These laws were designed to protect the educational opportunities of minors and prohibit their employment in hazardous jobs and under conditions detrimental to their health and well-being. To this end, the FLSA and state laws limit the types of jobs minors may hold as well as the hours they may work.

The good news for employers and those industrious teenagers out there is that the restrictions on work hours are typically relaxed somewhat during the summer months when school is not in session. For example, under the FLSA, 14- and 15-year-olds generally may work only between 7:00 a.m. and 7:00 p.m., except from June 1 to Labor Day, when work until 9:00 p.m. is permitted. Also, those same teens may work a maximum of only 18 hours in a school week, but they may work a maximum of 40 hours in a non-school week, and there are daily maximums as well (e.g., three hours on school days versus eight hours on non-school days).

As mentioned above, hours of work aren’t the only restrictions under state and federal law for minors. There are also restrictions on the type of work permitted. For example, a 15-year-old may work as a lifeguard at a swimming pool or water amusement park under certain conditions. No one under age 16, however, may work as a dispatcher on elevated water slides or as a lifeguard at a natural environment swimming facility (e.g., lakes, rivers, oceans, beaches, etc.). In short, Kellerman’s management better make sure that the lifeguard assigned to that now famous lake is age 16 or older.

The bottom line for employers taking on teenage employees is to brush up on federal/state requirements and keep in mind that child labor restrictions may vary with the employee’s age, the type of job, and even the time of year. For those teens eager for summer employment, I suggest you start submitting those applications immediately. As for me, I am off to find some popcorn and savor that moment when Robbie’s true colors are revealed and his medical school tuition check gets ripped to shreds. Hooray for Dr. Houseman!

Did I say that?

October 13, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Satya Nadella’s job was tough enough from the start. He followed Microsoft lifer Steve Ballmer and founder Bill Gates into the CEO role at a time when the company is looking to keep its businesses rolling in the face of a changing industry, slower PC sales, and serious pressure on its bread-and-butter Windows and Office products. Overall, the consensus is that he has done well. shutterstock_194661920 (1)

A misplayed comment last week, however, earned him some derision and led to a quick retraction. During the Grace Hopper Celebration of Women in Computing in Phoenix, Nadella suggested that women in the tech industry shouldn’t ask for pay raises and trust that their contributions would be rewarded in the long run. The audience didn’t exactly receive the advice well, and he quickly retracted the comment.

This episode is timely because arguments over gender differences in pay have been a hot topic in recent years. Folks on all sides of the issue can point to various statistical data to compare pay between men and women but, regardless of your take on the issue, the fact is that a number of federal and state laws make relative pay among men and women a key consideration for any personnel manager.

The federal side of this equation goes back to 1963, when the Equal Pay Act amended the Fair Labor Standards Act. The EPA prohibits pay discrimination for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions….” The EPA will allow differences based on seniority, quantity or quality or work, a merit system, or any other factor other than sex. Congress routinely considers amendments to the EPA, like the Paycheck Fairness Act, to bolster the EPA’s remedial provisions and prohibitions.

Additionally, a 2007 Supreme Court opinion prompted Congress to pass the Lilly Ledbetter Fair Pay Act, which altered the statute of limitations for pay discrimination claims brought under a host of antidiscrimination statutes like Title VII of the Civil Rights Act of 1964. The practical affect of the Ledbetter Act is still a subject of question, particularly as to how far back in time plaintiffs may be able to go to recover damages in pay discrimination claims.

When Mr. Nadella walked back his statements, he assured everyone that if a woman believes she is due a pay raise, she should absolutely ask for one. Very true. And for any employer that receives such a request, you should take the chance to ask yourself whether the pay decisions the company has made are based on defensible reasons other than sex.

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