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By: Janice B. Rockwell, Esquire 121-A N. Court St. Frederick, MD 21701 February 4, 2014 Bar Assn. of Frederick County,

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Presentation on theme: "By: Janice B. Rockwell, Esquire 121-A N. Court St. Frederick, MD 21701 February 4, 2014 Bar Assn. of Frederick County,"— Presentation transcript:

1 By: Janice B. Rockwell, Esquire 121-A N. Court St. Frederick, MD February 4, 2014 Bar Assn. of Frederick County, MD Lawyers as Employers

2 How not to manage a law office Copyright 2014, Janice B. Rockwell, LLC Feb. 4, 20142

3 Ignorance of the Law Unlike Sergeant Schultz, what you don’t know WILL hurt you. Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20143

4 Overview I.Wage & Hour Laws II.Pregnancy and Other Leave III.Wrongful Termination IV.Retaliation V.Jury Duty Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20144

5 I. Wage & Hour Laws Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20145

6 Overtime Exemptions and Exclusions Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20146

7 Exempt v. Non-exempt employee Exempt from what? Exempt from what? Does salary mean exempt? Does salary mean exempt? Executive, Administrative and Professional employees are exempt Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20147

8 Tests for Exemption Salary basis test Salary basis test Salary level - $455 per week Salary level - $455 per week Job Duties test Job Duties test Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20148

9 Salary Basis Test To be considered “salaried,” employees must receive their full salary for any work week in which they perform any work without regard to the number of days or hours worked. Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 20149

10 Personal and Sick (Full) Day Exception Personal Days – Er may deduct ee pay for full day absences for personal reasons without destroying employee “salary” status Personal Days – Er may deduct ee pay for full day absences for personal reasons without destroying employee “salary” status Sick Days – Er may deduct pay due to one or more full days missed due to sickness if deduction is made per bona fide sick leave plan compensating ee. Can deduct after ee’s sick leave is exhausted for full days. Sick Days – Er may deduct pay due to one or more full days missed due to sickness if deduction is made per bona fide sick leave plan compensating ee. Can deduct after ee’s sick leave is exhausted for full days. Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

11 Salary Level $455 per week – but there is no salary requirement for lawyers $455 per week – but there is no salary requirement for lawyers Highly compensated employees – ee who earns $100,000 or more, which includes at least $455 per week paid on salary basis ($23,660 per year) Highly compensated employees – ee who earns $100,000 or more, which includes at least $455 per week paid on salary basis ($23,660 per year) Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

12 Job Duties Test Executive Ee – Primary duty is managing the enterprise; customarily directs the work of 2 or more ees; AND has authority to hire or fire ees or at least ee’s suggestions re same must be given particular weight Executive Ee – Primary duty is managing the enterprise; customarily directs the work of 2 or more ees; AND has authority to hire or fire ees or at least ee’s suggestions re same must be given particular weight If ee is a “highly compensated” worker, ee need only meet one of the above duties If ee is a “highly compensated” worker, ee need only meet one of the above duties Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

13 Job Duties Test – Cont’d Administrative Ee – Primary duty is performance of office or non-manual work directly related to the management or general business operations of er or er’s customers, and Administrative Ee – Primary duty is performance of office or non-manual work directly related to the management or general business operations of er or er’s customers, and Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

14 Job Duties Test – Cont’d Professional Ee Professional Ee Learned Professional – Primary duty must be performance of work requiring advanced knowledge – predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment; must be in a field of science or learning; and must be customarily acquired by a prolonged course of specialized intellectual instruction Learned Professional – Primary duty must be performance of work requiring advanced knowledge – predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment; must be in a field of science or learning; and must be customarily acquired by a prolonged course of specialized intellectual instruction Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

15 Job Duties Test – Cont’d Professional Ee Professional Ee Creative Professional – Primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor Creative Professional – Primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

16 What Does All This Mean? Salary Does Not Necessarily Equal Exempt Employee Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

17 Copyright 2014, Janice B. Rockwell, LLC Calculation of Overtime Pay for Non-Exempt Salaried Employee Hypothetical Non-exempt employee is paid salary of $500 per week for all hours worked. Non-exempt employee is paid salary of $500 per week for all hours worked. Assume employee works 55 hours one week. Assume employee works 55 hours one week. Total pay due for the week is $ Total pay due for the week is $ Feb. 4,

18 Copyright 2014, Janice B. Rockwell, LLC Calculation of Overtime Pay for Non-Exempt Salaried Employee (Cont’d) Here’s how: Regular rate varies based on # hours worked. Regular rate varies based on # hours worked. Regular rate is $9.09 per hour ($500 divided by 55 hours) Regular rate is $9.09 per hour ($500 divided by 55 hours) Half-time rate is $4.55 (1/2 X $9.09) Half-time rate is $4.55 (1/2 X $9.09) 15 hours OT x $4.55 per hour = $ hours OT x $4.55 per hour = $68.25 $500 + $68.25 = $ $500 + $68.25 = $ Feb. 4,

19 Compensatory Time My secretary, Dutiful Delilah is a great asset to our firm. She works late without advance notice whenever I need her. She’ll work through lunch without being asked. She even does my holiday shopping for me. To recognize her above and beyond efforts, I told her to take time off – on the firm dime when she had to deal with some family health problems. My secretary, Dutiful Delilah is a great asset to our firm. She works late without advance notice whenever I need her. She’ll work through lunch without being asked. She even does my holiday shopping for me. To recognize her above and beyond efforts, I told her to take time off – on the firm dime when she had to deal with some family health problems. Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC19

20 Interns To pay or not to pay? 6 Criteria to satisfy for “not to pay” 6 Criteria to satisfy for “not to pay” Similar to training in educational environment Similar to training in educational environment For the benefit of the intern For the benefit of the intern Intern doesn’t displace ees Intern doesn’t displace ees Er derives no immediate advantage from intern; its operations may actually be impeded Er derives no immediate advantage from intern; its operations may actually be impeded Intern isn’t necessarily entitled to job at end Intern isn’t necessarily entitled to job at end Er and intern understand intern is not entitled to wages for internship Er and intern understand intern is not entitled to wages for internship Copyright 2014, Janice B. Rockwell, LLCFeb. 4,

21 Summer Employees Independent Contractor or Employee? They’re seasonal, temporary or casual employees. They can be 1099’ed, right? Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC21

22 Summer Employees Independent Contractor or Employee? WRONG Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC22

23 Summer Employees Independent Contractor or Employee? So, you have to add them as employees. Does this mean you have to give them benefits, such as vacation, insurance, or PTO time? Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC23

24 Payroll Deductions You, Lavish Law, LLC provided young attorney, Entrepreneurial Ernie, with a firm cell phone and iPad. The firm paid the phone bill. He could use them for anything he wanted, including personal uses, but he knew they were firm property. Ernie up and left one day, taking with him clients, cell phone and iPad. Ernie refuses to return them. P.O.’ed Partners want Ernie’s neck but they’ll settle for deducting cost of phone and iPad from Ernie’s last paycheck. May they? You, Lavish Law, LLC provided young attorney, Entrepreneurial Ernie, with a firm cell phone and iPad. The firm paid the phone bill. He could use them for anything he wanted, including personal uses, but he knew they were firm property. Ernie up and left one day, taking with him clients, cell phone and iPad. Ernie refuses to return them. P.O.’ed Partners want Ernie’s neck but they’ll settle for deducting cost of phone and iPad from Ernie’s last paycheck. May they? Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC24

25 Payroll Deductions It Depends. Does Lavish Law have written agreement from Entrepreneurial Ernie authorizing the deduction of the cost of the phone and iPad from Ernie’s paycheck? What if they don’t? What if it is a general authorization? Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC25

26 II. Pregnancy and Other Leave No pregnancy leave mandate* No pregnancy leave mandate* FMLA leave – up to 12 weeks unpaid leave for several family related events, including birth or adoption of a child FMLA leave – up to 12 weeks unpaid leave for several family related events, including birth or adoption of a child Same leave benefits as for other short term disabilities – paid or unpaid Same leave benefits as for other short term disabilities – paid or unpaid Can’t discriminate or harass b/ of pregnancy Can’t discriminate or harass b/ of pregnancy Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC26

27 Pregnancy Maryland Reasonable Accommodations for Disabilities Due to Pregnancy Act – effective Oct. 1, 2013 Maryland Reasonable Accommodations for Disabilities Due to Pregnancy Act – effective Oct. 1, or more ees 15 or more ees Accommodations to pregnant ees with disability caused or contributed to by pregnancy Accommodations to pregnant ees with disability caused or contributed to by pregnancy Poster requirement and handbook info, Poster requirement and handbook info, Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC27

28 Nursing Mothers 2010 amend. to FLSA (part of PPACA) to require ers to provide all non-exempt ees reasonable break time for an ee to express breast milk for nursing child 2010 amend. to FLSA (part of PPACA) to require ers to provide all non-exempt ees reasonable break time for an ee to express breast milk for nursing child Must also provide a private place, other than bathroom, free from intrusion of co- workers Must also provide a private place, other than bathroom, free from intrusion of co- workers Can be uncompensated break time – but caution – breaks of 20 mins or less paid Can be uncompensated break time – but caution – breaks of 20 mins or less paid Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC28

29 Other Leave / Break Time 1. FMLA – 50 or more ees – birth, adoption, foster placement, care of self for serious health condition or that of child, spouse or parent, qualifying exigency due to child, spouse or parent on active duty 2. MD Flexible Leave Act, – 15 or more ees – ers who provide paid leave benefits must permit ee to use time to care for immediate family member illness Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC29

30 Vacation No mandate No mandate Paid or unpaid upon termination of employment? Paid or unpaid upon termination of employment? Paid as wages at termination Paid as wages at termination Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC30

31 Lunch and Break time No law requires breaks* No law requires breaks* Breaks over 20 mins – unpaid as long as ee is free to leave worksite Breaks over 20 mins – unpaid as long as ee is free to leave worksite What about ee who eats lunch at desk? What about ee who eats lunch at desk? Are they free to go? Are they free to go? Are they working? Are they working? What if you don’t ask them to work through lunch? What if you don’t ask them to work through lunch? Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC31

32 III. Wrongful Termination What is it? Unfair termination? What is it? Unfair termination? Molesworth v. Brandon, 341 Md. 621 (1996) Molesworth v. Brandon, 341 Md. 621 (1996) Er’s motivation for discharge contravenes clear mandate of MD public policy. e.g. employee’s exercise of legal rights for i) filing worker’s comp claim ii) reporting violations of co. wrongdoing, iii) refusal to commit an unlawful act such as giving false testimony at a hearing, etc. Er’s motivation for discharge contravenes clear mandate of MD public policy. e.g. employee’s exercise of legal rights for i) filing worker’s comp claim ii) reporting violations of co. wrongdoing, iii) refusal to commit an unlawful act such as giving false testimony at a hearing, etc. Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC32

33 IV. Retaliation Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC33

34 Retaliation Claims are the Most Popular Claim EEOC Charge Statistics EEOC Charge Statistics % % % % % % % % 37,334 retaliation claims in 2011* 37,334 retaliation claims in 2011* *31.4% are Title VII retaliation claims 34Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC

35 Far Reaching Tentacles of Retaliation The Broad Tentacles of Retaliation 35 Title VII, ADA, ADEA,GINA, USERRA Title IX FLSA, FMLA, EPA, ERISA (pay and leave) NLRA, LMRA (concerted activity) OSHA, Workers’ Comp, HIPPA Sarbanes Oxley, Dodd Frank Act (whistle blowing) False Claims Act MD Anti- discrimination statute, & state, local ordinances

36 Title VII Definition Title VII makes it an unlawful employment practice to discriminate against an employee or applicant  “because he has opposed any practice made an unlawful employment practice by this subchapter” (the “opposition” clause) OR  “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (the “participation” clause) Copyright 2014, Janice B. Rockwell, LLC36Feb. 4, 2014

37 Retaliation – Key Terms Copyright 2014, Janice B. Rockwell, LLC37 Protected Activity Adverse Employment Action Causal Connection Feb. 4, 2014

38 How can you Oppose? Complaining to anyone about discrimination against you? Complaining to anyone about discrimination against you? Complaining to anyone about discrimination against others? Complaining to anyone about discrimination against others? Threatening to file a charge of discrimination? Threatening to file a charge of discrimination? Picketing to oppose discrim? Picketing to oppose discrim? Refusing to obey an order thought to be discriminatory? Refusing to obey an order thought to be discriminatory? YesNo _____ Copyright 2014, Janice B. Rockwell, LLC38Feb. 4, 2014

39 What’s an Employer to do? Review training and compliance programs to make sure you’re preventing problems before they occur. Copyright 2014, Janice B. Rockwell, LLC39 No Problem No Complaint No Retaliation Feb. 4, 2014

40 What’s an Employer to do? Culture is key. Create an environment where employees feel safe to blow the whistle. Copyright 2014, Janice B. Rockwell, LLC40Feb. 4, 2014

41 V. Jury Duty Md law – can’t fire ee for serving jury duty Md law – can’t fire ee for serving jury duty If ee is exempt, er can’t deduct pay for partial week’s absence for jury duty If ee is exempt, er can’t deduct pay for partial week’s absence for jury duty Hours of work – As of , if the jury service takes 4 hrs or more, er can’t require ee to work shift beginning 5:00 pm or later following jury duty or before 3:00 am the day after jury duty Hours of work – As of , if the jury service takes 4 hrs or more, er can’t require ee to work shift beginning 5:00 pm or later following jury duty or before 3:00 am the day after jury duty Feb. 4, 2014Copyright 2014, Janice B. Rockwell, LLC41

42 Questions Legal Disclaimer: This presentation is not intended to be legal advice or a substitute for legal advice. You should consult your attorney for guidance on a particular situation. Janice B. Rockwell, Esq. Janice B. Rockwell, LLC 121-A N. Court St. Frederick, MD The End Feb. 4, Copyright 2014, Janice B. Rockwell, LLC


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