Presentation on theme: "Current Wage & Hour Challenges"— Presentation transcript:
1Current Wage & Hour Challenges Karen ThompsonPádraig FlanaganKeith McDonaldPat CollinsKeya Denner_____________________________________________________________________The material provided herein is for informational purposes only and is not intended as legal advice or counsel.
2Please help yourself to food and drinks Please let us know if the room temperature is too hot or coldBathrooms are located past the reception desk on the rightPlease turn OFF your cell phonesPlease complete and return surveys at the end of the seminar
3Why Be Concerned About Wage & Hour Issues _____________________________________________________________________Presented By: Karen Thompson
4Why Be Concerned About Wage & Hour Issues: FLSA rules and regulations are confusing even to seasoned HR professionalsWage and hour lawsuits outpaced all other types of workplace class actions in 2009 and more suits are expected in 2010FLSA collective actions in federal court outnumbered all other types of private class actions
5Why Be Concerned About Wage And Hour Issues (cont’d): Governmental investigations and enforcement suits are increasingObama administration’s emphasis on regulation resulted in more enforcement actions over workplace issues2011 federal budget includes appropriations to combat misclassification of employees as independent contractorsAdditional $25 million allocated to hire 100 new DOL enforcement personnelRevised regulations regarding FLSA recordkeeping requirements on the way
6Why Be Concerned About Wage And Hour Issues (cont’d): Class actions adversely affect corporation’s reputation & market shareFLSA suits can carry individual liabilityDOL policy to pursue individual liability in cases of FLSA violationsIndividuals may be subjected to significant monetary penaltiesCourts take a liberal approach in defining individuals as employersSettlements have become more costly Top 10 private wage and hour settlements in 2008 totaled $ millionTop 10 private wage and hour settlements in 2009 totaled $ million
7Significant Wage and Hour Litigation WAL-MART STORES, INC.:December 2008 – Wal-Mart agrees to settle 63 wage and hour suits pending in state and federal courts for a maximum payout of $640 million December 2009 – Massachusetts Court approves $40 million settlement for 67,000 hourly workers forced to work off the clock and forfeit breaks (Polion v. Wal-Mart)November 2009 – District of New Jersey approves settlement of FLSA suit of up to $28 million for hourly workers (Iliadis v. Wal-Mart)September 2008 – Pennsylvania judge approves jury verdict of $185 million in state wage and hour lawsuit by workers forced to work off the clock and forfeit breaks (Braun v. Wal-Mart)
8Other Significant Settlements/Verdicts February 2010 – Merrill Lynch settled 11 collective and class actions filed by its financial advisors for $43.5 million including $10.9 million in legal feesJanuary 2010 – Staples, Inc. agreed to pay $42 million to settle a number of suits by assistant retail store managers who claimed they were misclassifiedMay 2009 – Prudential Securities, Inc. paid $11 million to settle FLSA suits alleging overtime violations and improper deductions for certain branch managers2007 – $65 million settlement by IBM in FLSA suit by IT Specialists and Technical Services Professionals misclassified as exempt employees (Rosenberg v. IBM)
9Recent FilingsFebruary 2010 – FLSA collective action against American Express Travel Services by call center employees required to work off the clock and through lunch without pay February 2010 – FLSA collective action against Starbucks by assistant managers who claim they were misclassified as exempt employeesNovember 2009 – Collective and class action under New York law against Smith & Wollensky Restaurant Group by servers who claim failure to pay overtime and employer’s improper retention of tips (Shahriar v. Smith & Wollensky) February 2009 – Twelve consolidated actions against Tyson Foods certified as FLSA collective action for failure to pay hourly employees for cleaning equipment, start up time and donning and doffing uniformsSuits against Big Pharma – FLSA actions by pharmaceutical sales reps challenging outside sales and administrative exemptions against Novartis, Sanofi Aventis US, Hoffman La-Roche, Eli Lilly, Schering Plough, Johnson & Johnson, Bristol-Myers Squibb and others
10Top Ten Reasons for FLSA Lawsuits Number 10: Employers’ failure to compensate employees for training timeNumber 9: Employers’ failure to compensate employees who “volunteer” their timeNumber 8: Employers’ failure to include extra compensation in overtime payNumber 7: Employers’ failure to pay employees for short breaksNumber 6: Employers’ failure to pay employees who work through lunch
11Top Ten Reasons for FLSA Lawsuits (cont’d) Number 5: Employers’ docking time for employees working on the clockNumber 4: Employers’ failure to pay employees working off the clockNumber 3: Employers’ misclassification of employees as independent contractorsNumber 2: Employers’ misclassification of employees as exempt employeesNumber 1: FLSA favors employees through lower proof thresholds, statutory damages and attorneys’ fees
12Fair Labor Standards Act: Navigating the Overtime Exemptions Keith McDonald
13Common Misconceptions Tom earns a “salary”, he is not eligible for overtime. Only “hourly” employees are eligible for overtime.Janice is a Manager. Managers are not eligible for overtime.Pat makes a lot of money, he shouldn’t be paid overtime if he has to spend a little extra time getting the job done.Okay, Karen should have been paid a few hours of overtime. We will just make it up to her with comp time.Keya was late to work again. That’s it, I’m docking his pay for every minute that he arrives after 9:00 AM.
14FLSA – General Framework OvertimeTime and one-half the regular rate of pay for all hours worked over 40 hours in a workweekOvertime ExemptionsEmployer bears the burden of proofRecent litigation – Retail (Starbucks, Dollar Store, Abercrombie), Finance/Insurance (Citigroup, Countrywide, GEICO), IT (Sprint), Transportation (Peter Pan Bus Lines), Pharma (Novartis, AstraZeneca, Bristol-Myers, Schering and others) and general corporate/legal.The Cases cited are from 2009The distinction between willful and non-willful violations is an important one.Willful violations – 3 years SOLOff the clock cases tend to suggests willful violationsNon-willful – 2 years SOL
15“White Collar Exemptions” The FLSA provides an exemption from overtime pay for following employees:ExecutiveAdministrativeProfessionalOutside sales employeesComputer employeesHighly Compensated EmployeesPaid on a salary basis at not less than $455 per week (except outside sales employees)Does not include manual laborers or other “blue-collar” workers
16Salary BasisRegularly receives a predetermined amount of pay each pay period (not less than $455/wk)Pay period can be weekly, monthly, etc.Pay cannot be reduced because of variations in quality or quantity of the work performedMust be paid full salary for any week in which the employee performs any workNeed not be paid for any workweek when no work is performedSalary basis must be maintained to preserve overtime exemption
17Salary Basis – Deductions No salary basis if deductions from salary are made for absences occasioned by the employer or by operating requirements of businessIf employee is ready, willing and able to work, deductions may not be made if work is not availableImproper deductions:Partial-day absence to attend teacher conferenceEmployer closed due to inclement weatherEmployee absent for jury dutyEmployee arrives late to work or leaves early
18Salary Basis – Permitted Deductions Absent for one or more days for personal reasons, other than sickness or disabilityAbsent for one or more days due to sickness or disability if deductions made under a bona fide plan, policy or practice of providing wage replacement pay for those types of absencesTo offset any amounts received as payment for jury fees, witness fees, or military payPenalties imposed in good faith for violating safety rules of “major significance”Disciplinary suspension of one or more days imposed in good faith for violations of workplace conduct rulesPro-rata pay during first and last weeks of employmentUnpaid leave taken pursuant to FMLA
19Effect of Improper Deductions Actual practice of making improper deductions from salary will result in loss of the exemption:During the time period in which deductions were madeFor employees in the same job classificationWorking for the same managers responsible for the actual improper deductionsDefenses – isolated or inadvertent deductions will not result in the loss of exempt status if the employer reimburses the employee
20Actual Practice of Improper Deductions The number of improper deductionsTime period during which the employer made improper deductionsThe number and geographic location of both the employees whose salaries were improperly reduced and the managers responsibleWhether the employer has clearly communicated a policy prohibiting improper deductions
21Safe Harbor The exemption will not be lost if the employer: Has a clearly communicated policy prohibiting improper deductions, including a complaint mechanismReimburses employees for any improper deductions; andMakes a good faith commitment to comply in the futureUnless the employer willfully violates the policy by continuing to make improper deductions
22Acceptable Payroll Practices That Preserve the Salary Basis Taking deductions from exempt employees’ accrued leave accounts for full day absencesRequiring exempt employees to punch in/outRequiring exempt employees to work a specified scheduleImplementing global schedule changesFurloughs for exempt employees – so long as they are for full week periods
24Executive ExemptionPrimary duty is management of the enterprise or of a customarily recognized department or subdivision;Customarily and regularly directs the work of two or more other employees; andAuthority to hire or fire other employees or whose suggestions and recommendations as to hiring, firing, advancement, promotion or other change of status of other employees are given particular weight.
25Executive Exemption“Primary duty” – principal duty that employee performs (50% or more performing exempt work)“Management”Interviewing, selecting and training employeesSetting and adjusting pay and work hoursMaintaining production or sales recordsEvaluating employee performanceHandling employee complaintsDisciplining employeesBudget controlsMonitoring legal compliance
26Executive Exemption “Department or Subdivision” HR – Benefits, Recruitment, Labor Relations, etc.Sales – Regions, Products, etc.Customarily and regularly directs the work of two or more other employeesMust be on regular basisMust be full-time employees (cannot be shared)Concurrent dutiesExempt employees decide when to perform non-exempt duties (Retail cases – Starbucks, etc.)
27Administrative Exemption Primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; andWhose primary duty includes the exercise of discretion and independent judgment with respect to matters of significanceRegarded by most as most difficult exemption to distinguish
28Does not include… Working on manufacturing production line Selling product in a retail or service establishmentBasic administrative assistant dutiesRecording or tabulating dataPerformance of mechanical, repetitive, recurrent or routine workApplying well-established techniques, procedures or specific standards as set forth in manuals or other sources
29Management or General Business Operations TaxFinanceAccountingAuditingInsuranceQuality ControlPurchasingProcurementAdvertisingMarketingResearchSafety and HealthHuman ResourcesEmployee BenefitsLabor RelationsGovernment RelationsLegal ComplianceIT Network, Internet and Data Administration
30Discretion and Independent Judgment Evaluating possible courses of conduct regarding matters of significanceFinal decision-makerImplement policies or operating practicesAssignments relate to major business operationsCommit employer to matters of significant financial impactAbility to waive or deviate from proceduresAbility to negotiate on behalf of employerInvolved in planning or establishing business objectives
31Specific ExamplesInsurance claim adjusters – ability to negotiate settlements or determine value of claim (not mere fact gathering and processing)Financial services – providing actual advice to customers and determining best products for customer’s needs (not mere selling of financial products)Human Resources – must formulate, interpret or implement policies (not mere screening of applicants)Administrative assistants – must be delegated authority regarding matters of major significance for high level executive/owner (not common exemption)
32Professional Exemption Primary duty must be the performance of work requiring advanced knowledgeIntellectual in character – not involving routine mental, manual, mechanical or physical workIn a field of science or learningLaw, Accounting/Actuarial, Teaching, Engineering, Biological/Chemical Sciences and MedicineCustomarily acquired by a prolonged course of specialized intellectual instructionBeyond a high school level – must have specialized academic training
33Professional Exemption Does not apply to occupations that may be performed with:General knowledge acquired by academic degreeKnowledge acquired through apprenticeshipTraining in performance of routine, mechanical or physical processesOccupations where skills are learned by experience
34Specific CasesNursesRegistered Nurses generally meet professional exemption (must also be paid on salary basis)Licensed practical nurses generally not exemptMedical Technicians, Dental hygienists, Physician Assistants – generally exempt with pre-professional studies from accredited schoolChefs – exempt if professional trainingCreative Professionals generally exempt – artists, musicians, designersNonexempt “professionals” – paralegals, bookkeepers, accounting clerks, cooks, engineering technicians
35Outside Sales Employees Primary duty must be making sales, or obtaining orders or contracts for which consideration will be paid by the client or customerEmployee must be customarily and regularly engaged away from employer’s place of businessPromotional Work – main subject of litigationPharmaceutical cases
36Computer EmployeesEmployed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker (salary basis or at least $27.63 an hour)Primary duty must consist ofApplication of systems analysis techniques and proceduresDesign or development of computer systems or programsDoes not includeEmployees engaged in manufacture or repair of computer systemsEmployees whose work is highly dependent upon, or facilitated by, the use of computers or software programs (drafters, designers)Sprint – no exemption for customer service rep who served customer’s tech problems. Court determined that a substantially higher degree of skill was required for the exemption.
37Highly Compensated Employees Total annual compensation of at least $100KIncludes commissions and non-discretionary bonusesMake-up payment permitted at year endPerform office or non-manual workCustomarily and regularly perform any one or more of the exempt duties identified in the standard tests for executive, administrative or professional exemptions (don’t have to meet full exemption).Strong presumption of exempt statusNot incorporated in all state laws (e.g., PA)Consider discussing the Portal-to-Portal Act – 1947 Amendment to the 1938 FLSA – designed to clarify the law with respect to travel and other activities before and after the work day.
38Employer Protections Review compensation model – salary or hourly Audit current employee roster“Blue collar” workers not exemptClerical workers not exemptIdentify potential misclassified positions – lower level managers, employees performing routine tasks, etc.Review policies re: payroll deductionsReview practices re: payroll deductionsConsult the FLSA regulations and resources (http://www.dol.gov/dol/topic/wages/overtimepay.htm)Consult your lawyer
39Identifying “Compensable Time” Presented by: Pat CollinsAssisted by: Chris Elko
40Staples Settles Assistant Manager OT Suits For $42M 02/01/2010Staples Settles Assistant Manager OT Suits For $42MStaples Inc. agreed Friday to pay $42 million as part of a global settlement resolving several wage-and-hour collective actions claiming the office supply vendor misclassified its assistant store managers as exempt from federal overtime pay requirements.02/02/2010Obama Allots $25M For DOL To Fight MisclassificationThe $3.8 trillion federal budget for the 2011 fiscal year proposed by President Barack Obama includes $117 billion for the U.S. Department of Labor, with $25 million set aside to help the department combat employee misclassification.02/03/2010Tech Support Worker Slams AT&T With OT ActionA former AT&T Inc. technical support worker has filed a proposed class action accusing the telecommunications giant of improperly classifying technical workers as exempt and shorting them on pay.02/04/2010Pizza Hunt Drivers Sue Franchisees For More DoughTwo companies that run Pizza Hut franchises have been hit with a nationwide putative class action accusing them of improperly requiring delivery drivers to pay their own travel expenses, paying drivers less than the minimum wage and depriving them of delivery charges.The Cases cited are from 2009The distinction between willful and non-willful violations is an important one.Willful violations – 3 years SOLOff the clock cases tend to suggests willful violationsNon-willful – 2 years SOL
41AA Skycaps Win Certification Of National Class 02/05/2010AA Skycaps Win Certification Of National ClassA federal judge on Thursday certified a nationwide class of American Airlines Inc. skycaps who claim they lost out on tips when the airline imposed a curbside check-in fee for bags at airports, reversing an earlier ruling in a different case that a similar class would have been unmanageable.02/08/2010Satellite Techs Hit MasTec With FLSA, Contract SuitFour Florida satellite technicians have filed a putative breach of contract and Fair Labor Standards Act class action claiming contractor MasTec Inc. failed to pay them overtime wages and commissions.02/09/2010Best Buy Settles OT Suit Over Workers Security ChecksBest Buy Co. Inc. has asked a federal judge to approve a $902,410 settlement that resolves claims that the consumer electronics giant did not pay retail workers in New York for time they spent going through a security check at the end of the workday.Employment Law360: Litigation, Policy & People NewsThe Cases cited are from 2009The distinction between willful and non-willful violations is an important one.Willful violations – 3 years SOLOff the clock cases tend to suggests willful violationsNon-willful – 2 years SOL
42U.S. Congressman George Miller “The Wage and Hour Division has simply dropped the ball in pursuing employers that cheat its workers out of their hard earned wages.”This is the new hottest topic that the DOL is focusing onU.S. Congressman George Miller
43FLSA lawsuits = Hot Topic and Big Money A Little Time = Big MoneyWells Fargo settled a FLSA-related case for $13 millionIBM settled a FLSA class action lawsuit for $65 millionWal-Mart paid out over $250,000,000 over the span of less than a year for FLSA overtime violationsLast year alone, the DOL recovered more than $171,500,000 in back wages for more than 246,000 employees.Federal DOL per Violation Fines$1000 per violation for Employers repeatedly or willfully violating the FLSAThe Cases cited are from 2009The distinction between willful and non-willful violations is an important one.Willful violations – 3 years SOLOff the clock cases tend to suggests willful violationsNon-willful – 2 years SOL
44FLSA lawsuits = Hot Topic FLSA violations have now replaced discrimination claims as the Department of Labor's top enforcement target.
45Identifying “Work Time” FLSA does not define “work”Defines “employ” as "suffer or permit to work"Includes anytime an employer requires OR allows an employee to workNo such thing as a volunteerEmployer KnowledgeEmployer may not “sit back and enjoy the benefits” of an employee that works without entering timeConsider discussing the Portal-to-Portal Act – 1947 Amendment to the 1938 FLSA – designed to clarify the law with respect to travel and other activities before and after the work day.
46Time Tracking Challenges Determining when your employees are “On the Clock” Rest/Meal BreaksTravel TimeTraining TimeWaiting TimeOn-Call TimePreliminary/Postliminary ActivitiesRounding Time
47Rest/Meal Breaks No requirement for Rest Breaks under the FLSA Short breaks (5-20 minutes) must be counted as compensable timeBona Fide meal periods are NOT compensable timeMust last 30 minutesTime spent during break must not be “predominantly for the benefit of the employer”Oakes v. PennsylvaniaOfficers were permitted to: sleep, read, play games, watch TV, go to restaurantsOfficers were required to: remain in uniform, carry weapons, monitor radios, respond to emergency calls, remain in jurisdiction and refrain from drinking alcoholThird Circuit found the time was predominantly for the benefit of the employer and, therefore, compensableOften times, the meal cases involve Police Officers (2nd and 3rd Circuit both follow the Predominant Benefit test based on cases involving Police Officers.NOTE – The 30 Minute marker for meal breaks is not a bright line rule, but it is the regular line of demarcation used by the courts
48Travel Time Home to Work: Regular – Not Compensable Home to Work: Special Location – CompensableDistance travelled minus normal travel timeTravel During Work Hours – CompensableTravel Away From Home – CompensablePay for work-day hours on work days and non-work-days (Saturday/Sunday)Non-work hours (i.e. - after 5:00 PM) not Compensable
49Training Six Factors determine whether training time is compensable Training is similar to that which would be given in a vocational schoolTraining is for the benefit of the traineesTrainees do not displace regular employees, but work under their supervisionEmployer gains no immediate advantage from the activities of the traineesTrainees are not necessarily entitled to a job at the completion of the training periodEmployer and trainees understand that the trainees are not entitled to wages for the time spent trainingThese are the factors set by the Supreme Court in Portland Terminal. Yard Brakemen trainees spent one week learning the requirements of the position through observation and closely-supervised work. Applicants did not displace workers and in some cases may have impeded efficiency.
50Waiting Time “Engaged to Wait” vs. “Waiting to be Engaged” Rule: Time spent waiting for work is compensable if it is spend “predominantly for the employer’s benefit”What control does the employer have over the employeeCan the employee effectively use that time for his or her own purposesChao v. AkronDrinking coffee and socializing before the day was considered compensable time because the employer required the employee to be present at facility before leaving for job sites
51On-Call TimeSeveral factors determine whether an employee’s “on-call” time is compensableRequired response timeAbility to trade on-call shiftsExcessive geographical movementsEmployee’s ability to engage in personal activitiesFrequency of callsAn employee required to remain “on-call” on the Employer’s premises is generally considered compensable
52The Blackberry Dilemma Is an employee who checks his blackberry at home entitled to overtime compensation?If an employee engages in work-related at home, on his own volition, must he be paid for it?Should an employee be compensated for the time he spends updating his professional bio on “Facebook,” “LinkedIn,” or “Twitter”?Does an employee’s use of a cell phone or blackberry after-hours constitute ‘hours worked’ under the FLSA?Oprah Anecdote? These are still open issues in the law
53The Blackberry Dilemma Agui v. T-Mobile, Inc. (E.D.N.Y.)Former and current employees sued “claiming they were required to use company-issued smart phones to respond to work messages after hours without pay.”Plaintiffs were “required to review and respond to T-Mobile related s and text messages at all hours of the day, whether or not they were punched into T-Mobile’s computer based timecard system.”When they complained, the suit alleges, managers told them this was one of T-Mobile’s standard business practices.Rulli v. CB Richard Ellis Inc. (E.D. Wis.)Employees were “given personal data assistants, such as Blackberries, smart phones, cell phones, pagers or other communication devices.”All employees were required to use such devices “outside their normal working hours without receiving any compensation.”Company allegedly required employees to respond to incoming messages within “fifteen minutes” of receiving them.These cases are both waiting to be certified as class actions and will ultimately provide insight into how the federal law will treat this issue.
54Preliminary and Postliminary Is the action an “integral and indispensible part of the principal activity.”Basically the same factors as whether an activity qualifies as “work”Benefit to the EmployerIs it required by the employerIs it necessary to perform the taskDoes the activity primarily benefit the employerDonning and Doffing – The origin of FLSA time-keeping litigationPoultry Cases (Tyson Foods)ATT Call Centers
55Preliminary and Postliminary Additional examples of Preparatory and Concluding Activities:Workers putting on (donning) and taking off (doffing) protective or work required gear;Employees booting up a computer and logging into work programs;Bus drivers inspecting their bus before the start of the shiftElectricians loading their trucks before leaving to perform their routes;Filling out time sheets, checking job locations, cleaning and loading trucks, fueling trucks, and picking up plans for the day's work; andEmployees waiting for work after punching in, even though employees could wait in a break room, in their cars, or even depart the premises if work was not available.Activities that are integral and indispensible parts of the principal activities are themselves principal activities.Courts have found that de Minimis pre/post work doesn’t count.
56Rounding Time and the De Minimis Doctrine Federal RuleRounding TimeDisregarding early or late clock punching permitted so long as the employees did not engage in any work.De Minimis TimeInsubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)).
57Rounding Time and the De Minimis Doctrine New JerseyPreviously NJDOL accepted rounding practices that complied with Federal Regulations (since 1965)A recent letter from the NJDOL states “We now have an enforcement policy that requires employers who round off time worked in any increment to round it off in favor of the employee.”NJDOL takes the position that advancements in technology make it possible to track and pay for actual time worked to the minute.De Minimis TimeEffectively eliminated
58Preventing “Off-The-Clock” Claims Be familiar with State and Federal LawAudit and analyze classificationsPay for hours workedPay the proper rateAudit and update your policies
59Preventing “Off-The-Clock” Claims Investigate all complaintsEnforce rules against unauthorized overtimeAudit and update recordkeeping practicesTrain your managersTalk to your lawyer
61Strategies For Avoiding Off-The-Clock FLSA Claims Good morning, my name is Keya Denner. By this point in the presentation, you are now all aware of the explosion of federal Fair Labor Standards Act class and collective action filings in the last few years.Now that you have a better understanding of some of the key provisions and issues faced by employers under the FLSA, my focus this morning is to leave you with some strategies to defeat these claims, or, hopefully, to avoid them altogether.My talk will center around the legal defense which is known as the “Doctrine of Avoidable Consequences,” and will touch on ways that employers can best utilize this defense in the context of the FLSA, while at the same time tightening up their existing company policies.I will start with an overview of the defense and then take an in-depth view of the elements of the defense. And we will end by discussing some of the emerging risks posed by new technology and what to look out for on the FLSA front in the next year or so.If you have any questions, we will have a Q&A session following the presentations.Presented By: Keya Denner61
62Doctrine of Avoidable Consequences The doctrine bars a party from recovering damages where the injured party could have avoided harm through reasonable efforts.The U.S. Supreme Court has applied the doctrine in Title VII cases. See Ford Motor Co. V. EEOC, 458 U.S. 219 (1982); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Kolstad v. American Dental Ass’n., 527 U.S. 526 (1999).Now referred to as the Faragher/Ellerth Defense.The Doctrine of Avoidable Consequences is also referred to as the duty to mitigate. It is an ancient legal doctrine that has been in existence since Roman times, so it predates the FLSA.The doctrine bars a party from recovering damages where the injured party could have avoided harm through reasonable efforts.Some of you may be familiar with the duty to mitigate, as it is routinely applied as a defense in contract and tort cases.In the context of our discussion today, the U.S. Supreme Court has also applied the defense in Title VII cases.Now referred to as the Faragher/Ellerth Defense.
63Doctrine as Applied by Supreme Court in Title VII Context Title VII seeks to make employees whole for unlawful discrimination, however, its “primary objective” is “not to provide redress but to avoid harm.”As envisioned by the Supreme Court, the defense encourages employers to adopt policies and procedures to ensure compliance and provide employees with an avenue by which they can report improper conduct to their employer.Title VII seeks to make employees whole for unlawful discrimination, however, its “primary objective” is “not to provide redress but to avoid harm.”The Supreme Court has stated that the preferred means of achieving the statutory goals of Title VII is through cooperation and voluntary compliance.As envisioned by the Supreme Court, the defense encourages employers to adopt policies and procedures to ensure compliance and provide employees with an avenue by which they can report improper conduct to their employer.So, the focus is to avoid harm, which is best accomplished by proper employer policies and procedures, and continued compliance with those procedures.63
64Doctrine as Applied to FLSA and State Law Wage and Hour Cases Primary objective of FLSA is to ensure compliance and that employees are paid minimum wage and overtime.Doctrine endorsed by USDOL in the FLSA context when it created a safe harbor for salary deductions in the 2004 white collar regulations.“Clearly communicated policy...and a mechanism for employee complaints...”Example: policy against sexual harassmentLike Title VII, primary objective of FLSA is to ensure compliance and that employees are paid minimum wage and overtime.The USDOL has already endorsed the doctrine of avoidable consequences in the FLSA context when it created a safe harbor for salary deductions in the 2004 white collar regulations.In Preamble of the regulations, the DOL stated: “We believe it furthers the purposes of the FLSA to permit the employer who has a clearly communicated policy prohibiting pay deductions and a mechanism for employee complaints...This is generally consistent with trends in employment law. An employer, for example, that has promulgated a policy against sexual harassment and takes corrective action upon receipt of a complaint may avoid liability.” 69 Fed. Reg (April 23, 2004)
65Application to FLSA Cases Limited to off-the-clock work cases.Employee’s role in proper timekeeping.Number of courts have held that employees are not free to disregard employer timekeeping policies.“...the employee bears some responsibility for the proper implementation of the FLSA’s overtime provisions...[a]n employee cannot undermine his employer's efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.” Wood v. Mid-America Management Corp WL (6th Cir. 2006).Limited to off-the-clock work cases:- cases where employee fails to punch in or out- cases where employee claims to have worked through lunch break- cases where employee claims he or she punched out and was required to perform off the clock workWhile employer bears the ultimate burden of proper timekeeping, courts have increasingly recognized that an employee plays an important role in proper timekeeping.Wood v. Mid-America Management Corp WL (6th Cir. 2006): “At the end of the day, an employee must show that the employer knew or should have known that he was working overtime or, better yet, he should report the overtime hours himself. Either way, the employee bears some responsibility for the proper implementation of the FLSA’s overtime provisions. An employer cannot satisfy an obligation that it has reason to think exists. And an employee cannot undermine his employer's efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.”
66Elements of the Faragher/Ellerth Defense Timekeeping policies and proceduresTrainingEmployee certificationComplaint mechanismSelf auditConsistent disciplinePeriodic remindersAdopt and publicize clear timekeeping policies and proceduresTrain managers and employees on key FLSA concepts, timekeeping policies, and complaint mechanismRequire employees to review, and, if correct, certify the accuracy of time recordsImplement a robust complaint mechanism specifically targeted to wage and hour complaintsAudit time records to ensure employees and managers are complying with polices and proceduresReinforce timekeeping policies through periodic reminders
67Element 1: Adopt and Publicize Clear Timekeeping Policies and Procedures “Saturation” of Policy: handbooks, memorandums, orientation guides, CBAs, etc.Require signed receipt to demonstrate knowledge of policies and procedures.Saturation means: publicizing the policy in a conspicuous, overt, and maybe even redundant manner.
68Recommended Policy Language Policy should:Contain key definitions (i.e. “working time”);Prohibit off-the-clock work while ensuring that, in the event work is performed, employees will be paid;Require immediate reporting of off-the-clock work;Provide a mechanism for employees to report off-the-clock work;Require advance authorization for overtime except in the event of emergency;Advise employees that no one is authorized to require off-the-clock work;Require employees to report violations of the timekeeping policy within a specific time period.Key definitions:-working time means: Any time spent for the Company’s benefit. Examples: Usual shift; shift changes; all work-related work done at home (i.e. preparation for a meeting; answering work s, etc.). Time spent doing work not requested by the employer, but still allowed, is generally hours worked.-exempt v. non-exemptProhibition of off-the-clock work:“Failure to receive your manager's approval prior to working overtime may result in disciplinary action. All overtime worked must be recorded pursuant to Company policy.”Reporting: within 72 hours is common, but this is specific to each employers and the realities and size of your business.Of course, your policy should contain language to the effect that “FAILURE TO FOLLOW THE PROCEDURES OUTLINED HEREIN WILL RESULT IN DISCIPLINARY ACTION, UP TO AND INCLUDING TERMINATION.”
69Element 2: Training Train both managers and hourly employees. Training should involve interactive learning model with examples of common violations (i.e. missed meal periods).Require refresher training at periodic intervals.Require training for all new managers and employees.Train both managers and hourly employees regarding FLSA and state wage and hour requirements and Company timekeeping policies and procedures.On-line training, if available to you, provides the ideal mechanism for training employees because it ensures uniformity and consistent documents of training.- suggestion: provide a training script if on-line training is not availableTraining should involve interactive learning model with examples targeted toward common violations (i.e. missed meal periods, improper supervisory instructions, etc.)Require refresher training at periodic intervals.Require training for all new managers and employees.
70Element 3: Certification of Time Records Require non-exempt employees to review time records.Daily review is ideal.Require employee certification of time records as to accuracy.If inaccurate, require employee to identify inaccuracies to permit immediate correction.Require employees to review accuracy of paycheck and certify.Certification should cover off-the-clock work and meal periods.Require non-exempt employees to review time records daily if possible. If daily review of the time records is not possible, a less less frequent can be used provided the employees have the opportunity to review actual records.Provided records are correct, require employee to identify any inaccuracies to permit immediate correction.If records are not correct, require employee to identify any inaccuracies to permit immediate correction.Require employees to review accuracy of paycheck and, if systems, permit, certify secondary review. On-line tools make this level of review more available.
71Element 4: Adopt a Robust Complaint Mechanism Revise existing complaint mechanism to ensure it specifically addresses wage and hour issues.Publicize complaint mechanism.“Saturation” of complaint mechanism.Train managers and payroll personnel to be alert to payroll concerns.Promptly investigate payroll concerns and take prompt remedial steps if appropriate.Most employers already have some type of complaint mechanism in place.Existing complaint mechanisms often do no specifically reference wage and hour issues, so employers should revise their existing complaint mechanism to do so.Publicize complaint mechanism in handbooks, memorandums, open door policies, collective bargaining agreements, ethics handbooks, etc.Train managers and payroll personnel to be alert to payroll concerns and treat any complaints with same level of attention as other employee relations complaints (i.e. sexual harassment).Promptly investigate payroll concerns using same techniques and controls as other types of internal complaints.Effective remediation may require payment of back wages.
72Element 5: Audit Time Records for Compliance Adopt an audit protocol to ensure employees and managers are following policies and procedures.Audit protocol should be designed to be discoverable in the event of future litigation as part of company’s good faith defense.Possible defense to liquidated damages2 year s/o/l rather than 3 yearAdopt an audit protocol to ensure employees and managers are following policies and procedures.This step should not be ignored. If you do not have a good idea of your company’s level of compliance, you may not know you have a problem before it is too late. The audit will help you to identify and correct any potential wage and hour violations before litigation, and possibly to establish a good faith defense.Audit protocol should be designed to be discoverable in the event of future litigation as part of company’s good faith defense.- Note of Good Faith Defense contained in Portal Act Section 260: Under the FLSA, double damages may be assessed against an employer that violates the overtime or minimum wage provisions, and willful violations of the FLSA result in a three (rather than two) year statute of limitations.- Courts also may award liquidated damages in an amount less than 100 percent of back wages where the good faith defense is proven. Importantly, if an employer fails to establish that the act or omission giving rise to the violation was in good faith, the court is given no discretion, and must award double damages.- The employer that operates blindly cannot claim good faith.
73Audits (con’t)Make sure you understand the cost, time, and potential disruption of an audit.Remember:allocate resources effectivelydetermine which jobs and practices must truly be auditedconduct the audit by business unit fine tuningInvestigation, remediation, discipline.Make sure you understand cost, time, and potential disruption of audit.Conducting an audit requires you to:- allocate resources effectively- determine which jobs and practices must truly be audited. In some cases, an audit of one job will be determinative of the status of other jobs in the same hierarchy.- decide if the company will maintain one company-wide standard to comply with all federal, state and local wage laws, or whether variations will be made for individual state’s overtime requirements- conduct the audit by business unit fine tuning of process- be mindful of variations from business unit to business unit- decide how to deal with violations: back pay or remedy potential problems on a prospective basis?- take steps to ensure future compliance maintaining compliance requires the audit process be an ongoing part of an employer’s labor relations program
74Element 6: Levy Commensurate Discipline for Policy Violations by Employees and Managers In some reported cases, employers have been criticized for quickly disciplining employees for timekeeping violations but not doing so for manager violations.Manager misconduct is increasingly being characterized as wage theft.Manager misconduct should be promptly addressed and, where confirmed, considered serious violation of the company’s most important policies.Read slide.
75Element 7: Periodic Reminders Timekeeping policies and procedures should be reinforced through available communication means.“Saturation” of policy!Annual letter to all employees.Newsletters.Postings.Refresher training.
76Off-The-Clock Trends in 2009 and Beyond – Auto Deduct Cases Camesi v. University of Pittsburgh Medical Center (W.D. Pa., 2009)Automatic lunch deduction caseEmployer’s written policy shifted burden to employee too far?Tip: Written policy should keep onus on managersCamesi v. University of Pittsburgh Medical Center, No. Civ. A J, 2009 WL (W.D. Pa. May 14, 2009):Conditional certification granted to hourly employees who claimed that pay was subject to automatic meal deduction through KRONOS computer system even when employees performed compensable work.Employer’s written policy was that each employee was responsible for cancelling the deduction if they did not actually take the 30 minute break.The Court noted that Defendants’ attempt to shift statutory responsibilities to their workers constituted an employer policy susceptible to challenge at conditional certification stage.Tip: Policy should keep onus on managers
77Off-The-Clock Trends in 2009 and Beyond – PDA’s New “wave” of cases predicted – PDA’sIs an employee who checks his blackberry at home entitled to overtime compensation?Should she be compensated for the time she spends updating her professional bio on “Facebook” or “LinkedIn”?Does an employee’s use of cell phone or blackberry after-hours constitute “hours worked” under the FLSA?
78Off-The-Clock Trends in 2009 and Beyond – PDA’s (con’t) Agui v. T-Mobile Inc. (E.D.N.Y 2009)Plaintiffs each provided with a “company blackberry or other smart device”Rulli v. CB Richard Ellis (E.D. Wis. 2009)Alleges employees were required to use PDAs outside normal working hours without compensationBUT: West v. Verizon (M.D. Fla. 2009)Verizon provided employees with Blackberry and cellCourt upheld magistrate’s denial of class certification!Agui v. T-Mobile Inc., No cv (E.D.N.Y. July 10, 2009)- Plaintiffs each provided with a “company blackberry or other smart device” and allege they were required to review and respond to company s and text messages “all hours of the day, whether or not they were punched in...”- Potential collective action – and T-Mobile employs 36,000 nationwideRulli v. CB Richard Ellis- Alleges employees given PDAs, and that employees were required to use such devices outside normal working hours without compensation- Collective action – potential plaintiffs could number in thousandsWest v. Verizon (M.D. Fla. 2009)- Verizon provided employees with Blackberry and cell- Court upheld magistrate’s denial of class certification!- Magistrate did not dispute that employees could opt to work from home, however, this allowed employees “periods of time during the day to engage in other, often significant, non-employee-related activities such as working around the home and shopping”- Because they “had such opportunities to engage in non-work related activities during ‘on-call’ time,” they were not “similarly situtated”CAUTION – West’s holding not dispositive whether time spent is compensable is a question of fact decided in the context of each case No two overtime cases are alike under the FLSA
79New Prong to Faragher/Ellerth Defense: Provide PDA’s Sparingly! Agui and Rulli: employers provided PDA’s, therefore knowledge of work could be imputedTip:Company Policy should restrict company owned PDA’s to exempt employees whenever possible!Those non-exempt employees who are given PDA’s must be advised that they should use the instruments only with prior authorization, at risk of discipline up to and including termination.As a practical matter, overtime is mandated when the “employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done.”READ SLIDE
81AgendaWhy businesses use independent contractors rather than employeesReasons for misclassificationFactors used by Courts in misclassification casesIndependent Contractor Proper Classification ActNJ Construction Industry Independent Contractor ActRecommendations for Proper Classification
82Why Use Independent Contractors Do not have to withhold income taxesDo not have to withhold and pay social securityDo not have to withhold and pay medicare taxesNo workers’ compensationNo unemployment taxes
83Why Use Independent Contractors Immune from FLSA’s minimum wage, overtime, record keeping, and anti-retaliation provisionsImmune from claims of civil rights violationsIndependent contractors are not protected under Title VII, ADEA, and ADA
84Reasons For Misclassification Motivating factor to avoid overtime pay requirements, payroll related taxes, employment benefits, and other employer obligationsConfusion over conflicting rules and Court decisionsNLRA/ERISA – principles of agency lawIRS – multifactor testTitle VII/ADEA – hybrid of “right to control” and “economic realities test”- FLSA/FMLA – “economic realities test”
85Fair Labor Standards Act Employee – “any individual employed by an employer”Employer – “any person acting directly or indirectly in the interest of an employer in relation to an employee”
86Factors Used By Courts in FLSA Misclassification Cases Degree of alleged employer’s right to control the manner in which work is performed;Worker’s opportunity for profit and loss depending on managerial skill;Worker’s investment in equipment or materials required for task or employment of assistants;Whether services rendered require a specific skill;Degree of permanence of working relationship; andWhether service provided is an integral part of the alleged employer’s businessAlso, whether, as a matter of economic reality, individual is dependent upon the business to which he renders service.
87“ABC Test” Used in New Jersey Wage and Hour Cases (A) Individual has been and will continue to be free from control or direction over the performance for such service, both under the contract of service and in fact; and(B) Service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business or the enterprise for which such service is performed; and(C) Individual is customarily engaged in an independently established trade, occupation, profession, or businessFailure to satisfy any one of these three criteria results in an “employment” classification
88Independent Contractor Proper Classification Act of 2007 Sponsored by then Senator Obama, and Senators Durbin, Kennedy, and MurraySenator Obama stated that misclassification accounts for $6 to $8 billion in uncollected federal taxes and represents major loss of revenue for federal and state governments facing deficits
89Independent Contractor Proper Classification Act of 2007 GoalsIncrease tax revenuesImprove and strengthen coordination between IRS and DOL to enforce law, enact stringent oversight, audits, and reviewsEnforce federal tax laws and impose penalties for improper classificationStatus – read twice and referred to the Senate Committee on Finance
90Independent Contractor Proper Classification Act of 2007 Highlights- Establishes right of workers to challenge their classification without fear of employer retaliation- Businesses must notify independent contractors of their federal tax obligations and right to seek classification determination review by IRS- Eliminates Safe Harbor provision in the tax law that excuses misclassification by permitting long standing practice of a significant segment of the industry to be used as basis for employer’s own classification decision
91NJ Construction Industry Independent Contractor Act Legislative FindingsEmployers in the construction industry that misclassify employees as independent contractorsDeprive workers of social security and other benefitsReduce the employer’s state and federal tax withholdings and tax obligationsPlace businesses that bear higher cost for compliance at a competitive disadvantage
92NJ Construction Industry Independent Contractor Act For purposes of the:New Jersey Prevailing Wage ActUnemployment Compensation LawTemporary Disability Benefits LawNew Jersey Gross Income Tax ActNew Jersey State Wage and Hour LawServices performed in making improvements to real property by an individual for remuneration paid by another shall be deemed to be employment
93NJ Construction Industry Independent Contractor Act Services provided will be deemed to be employment unless Dept. of Labor and Workforce Development is satisfied that:1. Individual has been and will continue to be free from control or direction over the performance of that service, both under his contract and in fact; andService is either outside the usual course of business for which the service is performed, or the service is performed outside of all the places of business of the employer for which the service is performed; andIndividual is customarily engaged in an independently established trade, occupation, profession, or business
94NJ Construction Industry Independent Contractor Act Prohibits contractor from requiring individual to enter into agreement that results in misclassificationPermits workers to bring civil action for damages if the contractor had knowledge of misclassification, and permits award of attorneys’ fees and costsUnlawful to discriminate or retaliate against individual for exercising their rights under the act
95NJ Construction Industry Independent Contractor Act Commissioner of Labor and Workplace Development may order the immediate suspension of the contractor’s registration if Commissioner determines it is in the public interestDetermination of knowing violation by Commissioner or final conviction for violation permits the Commissioner to place employer on list of contractors prohibited from contracting in public works projectsCommissioner may issue stop-work orders for subsequent violationsCommissioner may assess civil penalty of $5,000 per day for violations of stop-work ordersCommissioner may assess civil penalty of $5,000 for each employee misclassified
96NJ Construction Industry Independent Contractor Act Commissioner may refer the matter to the Attorney GeneralCriminal PenaltiesDisorderly persons offense- Each week and each employee is a separate offenseCrime of the second, third, and fourth degrees (based on the contract amount) where misclassification is done knowingly
97Recommendations For Proper Classification Comprehensive review of current employee classification system and independent contractor relationshipsFollow and understand how new state and federal legislation will impact the company’s classification systemReview industry and position classification standards and best practice guidelinesImplement internal reviews in preparation for audits and employee litigationReview language used in written independent contractor agreementsMaintain records of hours worked, even for IC’s, to aid in potentially defending against large lawsuitsConsult counsel
98Question & Answer Session _____________________________________________________________________Thank you for coming!