Posts Tagged ‘Wage and Hour’

California Employers Don’t Have to Require Lunch Breaks

Monday, April 16th, 2012

The California Supreme Court has ruled that employers only have to provide meal periods to workers, they do not have to make sure that employees actually take them.

This decision is part of an active class-action lawsuit against Brinkers International Inc, which owns Chili’s and Romano’s Macaroni Grills.

In 2008, a California appeals court sided with Brinker, finding that the restaurant company only had to “make available” the meal and rest breaks, but not “ensure” they were taken. The state’s Supreme Court agreed that employers do not have to police meal breaks but do need to relieve workers of duties at those times.

A commentary about the decision at CBS’s MoneyWatch summed up the ruling as a win-win for employers and workers alike:

“Why is this ruling good for employees and employers alike? Because it treats everyone like grown-ups. Companies aren’t required to pay their employees for breaks of 20 minutes or longer, but are required to pay for shorter breaks… Of course, if an employee does not take a break, the employer must pay for the time worked. (And you can certainly be fired for working off the clock.) ”

While the lawsuit is still working its way through the system, this decision is a welcomed clarification for employers navigating the ambiguities around break and rest periods for wage workers in California.

Department of Labor Clarifies Position on Service Advisors Classification

Friday, April 8th, 2011

On April 5th, the Wage and Hour Division of the U.S. Department of Labor clarified that service advisors are not exempt from overtime. While the current regulations states “a service manager, service writer, service advisor or service salesman who is not primarily engaged in the work of a salesman, partsman or mechanic is not exempt” (29 C.F.R. § 779.372(c)(4))”, beginning in 1987, the Department had adopted an enforcement position that did not deny exemption from overtime payment.  The Department has reversed this enforcement position and dealerships are advised to take into account all earnings for service advisors during the relevant time period including salary plus any commissions to determine the appropriate amount of overtime pay which may be due.

A more complete review of the new enforcement position is available from our partner,  Ford & Harrison at http://www.fordharrison.com/shownews.aspx?Show=7117

Employee Bill of Rights- Happy 4th of July!

Friday, July 2nd, 2010

In honor of the 4th of July holiday let’s take a moment to celebrate our rights as citizens here in the United States and also discuss what rights employees have the workplace.

1) Employees have the right (confirmed by a number of state and federal laws) to not be discriminated against or harrasssed in the hiring process and in the workplace.

2) Employees have the right to be paid for work completed and to have meal and rest periods as appropriate (the Fair Labor Standards Act and individual state law defines wage payment along with meal and rest periods).

3) Unless under contract employees have the right to leave employment that does not suit them (employers also have the right to fire employees “at will”  in most states except when under contract or because of discrimination or retaliation).

4) Employees do not have the right to paid holidays, sick time or vacation pay under federal Law (FLSA). Some states do provide for paid time off.   Check out the your state’s Department of Labor website  more information on paid leave laws.   Employees do have the rights to unpaid leave under Family Medical Leave Act (FMLA) and some state laws.

5) Employees have the right to reasonable accomodations for disabilities  under the Americans With Disablity Act (ADA).

Happy 4th of July to all employees and employers!

Interns a source of free labor? Not likely!

Friday, April 30th, 2010

Businesses looking to save some money and complete a project often turn to interns.   In today’s economy recruiters and hiring managers may also get  a call from a job seeker asking to “intern for free” to “learn about your business”. 

Intern however is not a synonym for free labor.  In fact the Department of Labor notes that internships will most often be viewed as employment (and therefore subject to the minimum wage and overtime provisions of the FLSA), unless a test is met.  The department will look at the following 6 criteria when applying the test:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.

2. The internship experience is for the benefit of the intern.

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 activities of the intern; and on occasion its operations may actually be impeded.

 5. The intern is not necessarily entitled to a job at the conclusion of the internship.

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad, the department says. 

So think about internships as great PR and community relations;  offering new graduates, young people and those exploring a  career change the opportunity to  learn about your business and business in general, but unless you can truly meet all six factors don’t consider them free labor.

Join the conversation: Do you use interns in your company and do you normally pay them?

Contractor or Employee? Misclassification of employees key enforcement issue in 2010

Thursday, April 29th, 2010

The Department of Labor (DOL) announced that $12 million of its 2011 budget will go towards increasing enforcement of wage and overtime laws involving misclassification of employees.

The U.S. Secretary of Labor Hilda L. Solis addressed the need to “secure minimum and overtime wages and to help middle class families remain in the middle class. Working on the issue of misclassification is key to attaining those goals because misclassification of employees as independent contractors deprives employees of critical workplace protections and employment benefits to which they are legally entitled.”

As state and federal governements look for additional revenue cracking down on employers who misclassify employees can generate needed funds stated an article recently reported  in the New York Times.

Currently misclassification is not against the law, but its practices often violate labor and tax laws, such as failing to pay employees overtime or minimum wage.  Congress is also considering additional regulations on this issue.

For additional information and resources visit the IRS website to download the Independent Contractor vs Employee Guide or view KPA’s webinar, Contractor or Employee: How to Tell the Difference.

Should Every Employee Use A Timecard?

Monday, March 29th, 2010

If you don’t have all of your employees using timecards you might want to reconsider.  Many employers only use timecards for non-exempt employees- but it is a good idea to have all employees keep accurate records of their time.  Having everyone keep track of hours worked  provides for accurate  records of wage payments against time worked - which in today’s litigious society is alway a good idea- as long as the records reflect correct wage and hour practices on the employer’s part.  A couple of things to consider:

1)  As a rule of thumb don’t  make exempt employees use PTO for absences of less than a day.   Exempt employees can be expected to use available PTO for partial days absence but you cannot reduce their pay if they don’t have enough hours so what is the point really?

If the employee is taking more time off than expected treat as a disciplinary matter.

2) Automate your timekeeping process- there are any number of vendors and online programs that can make keeping accurate records easy for the employee and for the payroll department.

3) If you allow nonexempt employees to work from home, you still need to keep track of their comings and goings, just as you would if they were in the office. You need to be sure their time is being calculated correctly, that they’re not working unauthorized overtime, and that they’re not in fact on the clock (in the form of work-related e-mails, texts, or phone calls) when they should be off it.

4) Make sure that all employees are classifed correctly as exempt or non-exempt.  Salaried is not a classification related to overtime wage payment but rather a method for payment. Salaried employees can be non-exempt.  If you aren’t sure how to classify an employee check out the Department of Labor website or the KPA webinars -Essentials of Wage and Hour Law,  Advanced Wage and Hour Law or California Wage and Hour Law.

5) It is usually (there are some exceptions) illegal  to give non-exempt employees “comp time” instead of paying overtime.  However for the exempt employee who has been putting in 60 hour work weeks comp time can be a great moral booster- and having good records of all that hard work is just another reason to keep accurate time worked records.

Join the conversation: Do you require all employees to use a timecard of some type?

Sitting ducks- why do business not follow basic HR regulations?

Tuesday, January 12th, 2010

Last week the EEOC entered into a $1.5M settlement with a Colorado auto dealer, and then on Monday announced another $85,000 settlement with a dealership in Ohio. In both cases basic HR best practices and federal and state regulations were not followed. The question is why?  Is it a lack of understanding of the regulations or an inability to implement sound HR process?  With the plethora of HR software available it can’t be that the right tools aren’t accessible, so maybe HR is seen as a “nice to have” activity rather than a core function of the business.  Given the fines, penalties and loss of reputation when regulations are not followed HR compliance isn’t something you do because you are want to- it’s a critical function of your business.  Unless you want to be a sitting duck for an employment lawsuit, EEOC investigation or Wage and Hour violation put your HR compliance program in order now, you really can’t afford to wait.

Join the conversation- why  would a  businesses ignore HR best practices and HR compliance requirements?

90 New Regulations…coming soon from the Department of Labor

Thursday, December 17th, 2009

dolWage and hour law continues to be a hot topic for our clients. Just when we  have learned how to deal with that last batch of new regulations on paying employees, record-keeping and employee classification the  Department of Labor will be proposing 90 new regulations in the coming months. A complete list of the regulatory agenda can be found at http//www.dol.gov/asp/regs/unifiedagenda/fall_2009_agenda.pdf. The  DOL has named 12 “specific strategic outcomes” it is seeking with the package.

The outcomes include “increasing workers’ incomes and narrowing wage and income inequality”; “securing safe and healthy workplaces, wages and overtime, particularly in high-risk industries”; “assuring skills and knowledge that prepare workers to succeed in a knowledge-based economy”; “helping workers who are in low-wage jobs or out of the labor market find a path into middle-class jobs”; and ensuring workers have a voice in the workplace.” Facilitating unionization is the point of another rule that will be proposed. The Office of Labor-Management Standards will draft a regulation requiring greater disclosure by employers of consultants that they hire to advise them on union organizing campaigns.

If you are looking for updates and guidance on wage and hour law, attend one of KPA’s free webinars- Essentials of Wage and Hour Law for Dealerships, Advance Wage and Hour Law or California Wage and Hour Law presented by leading employment and labor attorneys, John Boggs of Fine, Boggs and Perkins and Jim Hendricks of Ford & Harrison, LLP.

Additional informationon the OSHA regulations that are part of the agenda can be found on Patric’s post from December 11th.

Department of Labor hires 250 new wage and hour investigators

Tuesday, November 24th, 2009

U.S. Secretary of Labor Hilda L. Solis recently issued a statement regarding the increased enforcement of the department’s Wage and Hour Division, announcing that she “hired an additional 250 new wage and hour investigators, a staff increase of more than one third, to ensure that we promptly respond to complaints and can undertake more targeted enforcement.”

Apart from the question if you agree with the need for this or not; what are you going to do about it? Do you need to do something? One suggestion: listen to one of KPA’s webinars by labor and employment lawyers from Ford & Harrison and Fine, Boggs & Perkins.