I posted much about the Patient Protection and Affordable Care Act because it focuses so much on regulating the insurance industry and to a lesser extent regulates employers. There's an important protection in it though for women who breastfeed. Section 4207 amends the Fair Labor Standards Act to require employers to give women reasonable breaks and a location that is not a bathroom to express breast milk. Here's the text.
SEC. 4207. REASONABLE BREAK TIME FOR NURSING MOTHERS.
Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
`(r)(1) An employer shall provide--
`(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and
`(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
`(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
`(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
`(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.'.
While promoting expressing milk may not be problem free as a policy matter, many women rely on the ability to do so to feed their children, and this is a very important step forward that will support more women of who want to breastfeed their children.
Showing posts with label FLSA. Show all posts
Showing posts with label FLSA. Show all posts
Friday, April 2, 2010
Tuesday, March 23, 2010
Supreme Court considers oral complaints under FLSA
The U.S. Supreme Court has agreed to consider whether the anti-retaliation
provision of the Fair Labor Standards Act, which prohibits discrimination
against an employee who "filed a complaint," covers an employee who orally
complained to supervisors that the location of time clocks prevented employees
from being paid for time spent donning and doffing required protective gear.
Plaintiff, who was fired by Saint-Gobain Performance Plastics Corp. for
violating time-clock procedures, is asking the justices to overturn the Seventh
Circuit's June 2009 decision that he did not engage in protected activity under
the FLSA because he did not complain in writing. The statute's use of the
language "filed" shows that Congress intended employees to submit written wage
and hour complaints to be shielded from retaliation, the court said.
The Seventh Circuit denied Plaintiff's request for rehearing
en banc. The three dissenting judges asserted that the interpretation that the
FLSA's anti-retaliation provision does not cover oral complaints is "unique
among the circuits" and conflicts with the Labor Department's position.
Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, cert.
granted 3/22/10
provision of the Fair Labor Standards Act, which prohibits discrimination
against an employee who "filed a complaint," covers an employee who orally
complained to supervisors that the location of time clocks prevented employees
from being paid for time spent donning and doffing required protective gear.
Plaintiff, who was fired by Saint-Gobain Performance Plastics Corp. for
violating time-clock procedures, is asking the justices to overturn the Seventh
Circuit's June 2009 decision that he did not engage in protected activity under
the FLSA because he did not complain in writing. The statute's use of the
language "filed" shows that Congress intended employees to submit written wage
and hour complaints to be shielded from retaliation, the court said.
The Seventh Circuit denied Plaintiff's request for rehearing
en banc. The three dissenting judges asserted that the interpretation that the
FLSA's anti-retaliation provision does not cover oral complaints is "unique
among the circuits" and conflicts with the Labor Department's position.
Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, cert.
granted 3/22/10
Wednesday, March 10, 2010
Wage and Hour Reality Check
The Ninth Circuit Court of Appeals recently held that some work performed by employees at home, as well as time spent commuting, may have to be paid in certain circumstances.
The plaintiff in Rutti was a technician for Lojack, Inc. ("Lojack") who installed car alarms. In the morning, Rutti, as well as Lojack's other technicians, would receive their assignments for the day, map the route to their assignments, and prioritize the jobs. While traveling to the first job in the morning, as well as when traveling home at the end of the day, technicians were required to keep their cell phones on and drive directly between home and the job site without making any additional stops. After returning home, technicians were required to upload data received at the job sites from a portable data terminal ("PDT") to the company by hooking the PDT up to a modem.
The Ninth Circuit determined that the technicians' commute time was compensable under state law, but not federal law. The federal Portal-to-Portal Act, as amended by the Employment Commuter Flexibility Act, explicitly provides that employers need not compensate employees for time spent traveling to and from where they perform their job duties. The result under federal law was not changed by the fact that Lojack's technicians drove company cars, or that they were subject to certain employer-mandated restrictions while driving.
California, however, maintains stricter wage and hour laws. Under California law, the relevant question is whether the employee's time is "subject to the control" of the employer. The Ninth Circuit found that because technicians had to keep their cell phones on, and could not make additional stops while going to and from the job site (such as dropping children off at school), the time was subject to the employer's control and had to be paid under California law.
The Ninth Circuit went on to find that under federal law, the technicians' job tasks before the "start" of the work day were not compensable, but that time spent uploading data from the PDT "after work" might have to be paid. Under federal law, the question of whether these types of "preliminary and postliminary" activities must be paid depends on whether they are part of the "principal activities" that the employee is employed to perform. Even if these tasks are part of the employee's "principal activities," they need not be paid if they are de minimus. In deciding whether certain job tasks are de minimus under federal law, courts examine the practical administrative difficulty of recording the additional time, the aggregate amount of time at issue, and the regularity of the additional work.
Applying those factors, the Court held that even if the tasks performed by technicians prior to leaving home were part of their "primary activities," they were de minimus. These tasks took only a matter of minutes to complete, and it would be very difficult to record the time that technicians spent working on them. However, time spent uploading data from the PDT might be compensable. There was evidence that this task took anywhere from 5 to 15 minutes each night. While the Court acknowledged that there would likely be some administrative difficulty recording this time, it found that the time added up to over an hour per week, and was a regular part of the employees' job duties, and therefore might not be de minimus. Accordingly, the time might have to be paid, depending on the specific facts.
Still, even if this activity was found to be compensable under federal law, that did not mean that the technicians' travel time home had to be compensated, even under the "continuous workday doctrine." Under this doctrine, which the U.S. Department of Labor has adopted, an employee's workday generally lasts until he has completed all of his principal activities during the day. The Ninth Circuit found that the "continuous workday" rule did not apply in these circumstances because technicians were relieved of all duties upon returning home, and could input the data from the PDT at a time of their choosing. Federal regulations preclude application of the "continuous workday doctrine" where employees are relieved from all duty for a long enough period to be able to use that time for their own purposes. Still, this commute time generally has to be paid under California law. Here, the Ninth Circuit did not reach the issue of whether the "preliminary and postliminary" activities performed by the technicians had to be paid under California state law.
This case reminds employers that there can be significant differences between federal and state law in the wage and hour areas, and that they need to ensure that their practices comply with both sets of laws.
Rutti v. Lojack Corporation, Inc., March 2, 2010
The plaintiff in Rutti was a technician for Lojack, Inc. ("Lojack") who installed car alarms. In the morning, Rutti, as well as Lojack's other technicians, would receive their assignments for the day, map the route to their assignments, and prioritize the jobs. While traveling to the first job in the morning, as well as when traveling home at the end of the day, technicians were required to keep their cell phones on and drive directly between home and the job site without making any additional stops. After returning home, technicians were required to upload data received at the job sites from a portable data terminal ("PDT") to the company by hooking the PDT up to a modem.
The Ninth Circuit determined that the technicians' commute time was compensable under state law, but not federal law. The federal Portal-to-Portal Act, as amended by the Employment Commuter Flexibility Act, explicitly provides that employers need not compensate employees for time spent traveling to and from where they perform their job duties. The result under federal law was not changed by the fact that Lojack's technicians drove company cars, or that they were subject to certain employer-mandated restrictions while driving.
California, however, maintains stricter wage and hour laws. Under California law, the relevant question is whether the employee's time is "subject to the control" of the employer. The Ninth Circuit found that because technicians had to keep their cell phones on, and could not make additional stops while going to and from the job site (such as dropping children off at school), the time was subject to the employer's control and had to be paid under California law.
The Ninth Circuit went on to find that under federal law, the technicians' job tasks before the "start" of the work day were not compensable, but that time spent uploading data from the PDT "after work" might have to be paid. Under federal law, the question of whether these types of "preliminary and postliminary" activities must be paid depends on whether they are part of the "principal activities" that the employee is employed to perform. Even if these tasks are part of the employee's "principal activities," they need not be paid if they are de minimus. In deciding whether certain job tasks are de minimus under federal law, courts examine the practical administrative difficulty of recording the additional time, the aggregate amount of time at issue, and the regularity of the additional work.
Applying those factors, the Court held that even if the tasks performed by technicians prior to leaving home were part of their "primary activities," they were de minimus. These tasks took only a matter of minutes to complete, and it would be very difficult to record the time that technicians spent working on them. However, time spent uploading data from the PDT might be compensable. There was evidence that this task took anywhere from 5 to 15 minutes each night. While the Court acknowledged that there would likely be some administrative difficulty recording this time, it found that the time added up to over an hour per week, and was a regular part of the employees' job duties, and therefore might not be de minimus. Accordingly, the time might have to be paid, depending on the specific facts.
Still, even if this activity was found to be compensable under federal law, that did not mean that the technicians' travel time home had to be compensated, even under the "continuous workday doctrine." Under this doctrine, which the U.S. Department of Labor has adopted, an employee's workday generally lasts until he has completed all of his principal activities during the day. The Ninth Circuit found that the "continuous workday" rule did not apply in these circumstances because technicians were relieved of all duties upon returning home, and could input the data from the PDT at a time of their choosing. Federal regulations preclude application of the "continuous workday doctrine" where employees are relieved from all duty for a long enough period to be able to use that time for their own purposes. Still, this commute time generally has to be paid under California law. Here, the Ninth Circuit did not reach the issue of whether the "preliminary and postliminary" activities performed by the technicians had to be paid under California state law.
This case reminds employers that there can be significant differences between federal and state law in the wage and hour areas, and that they need to ensure that their practices comply with both sets of laws.
Rutti v. Lojack Corporation, Inc., March 2, 2010
Friday, February 26, 2010
The Ninth Circuit has a Tip for You
The Ninth Circuit clarified the validity of tip pools under the Fair Labor Standards Act (FLSA) where the tip pool includes employees who are not customarily and regularly tipped. The Court of Appeals, in a case of first impression in that circuit, held that where workers make more than the minimum wage and the employer takes no tip credit, tip pools including non-tipped employees do not violate the FLSA.
Plaintiff was a server at the Vita Café in Portland, Oregon, which is owned and operated by Defendants (collectively "Woo"). Woo's servers were paid a wage at or exceeding the Oregon minimum wage, which at the time was higher than the federal minimum wage, and also received a portion of their daily tips. The servers were required to contribute their tips to a "tip pool" that was redistributed to all restaurant employees, except managers. Between 55% and 70% of the tip pool went to the kitchen staff (e.g. dishwashers and cooks), who are not customarily tipped in the restaurant industry. The remainder of the tip pool (between 30% and 45%) was returned to the servers in proportion to their hours worked.
Plaintiff alleged that Woo's tip pooling policy violated the FLSA's minimum wage provisions. She argued that the FLSA requires employers to allow employees to keep all of their tips, except where the employee participates in a tip pool with other customarily tipped employees. Because Woo's tip pooling policy included employees who are not customarily and regularly tipped, Plaintiff argued it was invalid under the FLSA and Woo was required to pay her the minimum wage plus all of her tips.
The Court of Appeal held that Woo's tip pooling policy did not violate the FLSA because the FLSA only restricts tip pools to employees who are customarily tipped when the employer takes a tip credit. Tip pools are valid where there is an explicit arrangement to turn over or redistribute tips and there is no "statutory interference" that would invalidate the arrangement. The Court found that the language of the statute limiting tip pools to customarily tipped employees imposes a condition on taking a tip credit and does not state a freestanding requirement. A "tip credit" is where an employer is allowed to take credit for a certain amount of tips earned by their employees toward the employer's payment of the minimum wage. Tip credits are not allowed under Oregon law, and so Woo was not allowed to, and did not, take one. Because Woo did not take a tip credit, its tip pooling requirement was not subject to this limitation. Therefore, the Court found that there was no "statutory interference" and Woo's tip pooling requirement was valid.
This case provides employers with greater clarity under federal law regarding which employees can be included in a tip pool when their employees make at least the minimum wage and the employer does not take a tip credit. However, employers are cautioned to ensure that any tip pooling policy complies with both the law in their respective state as well as federal law. Beware: a tip pooling policy valid under federal law does not necessarily mean that it is legal under state law.
Cumbie v. Woody Woo, Inc., No. 08-35718
Plaintiff was a server at the Vita Café in Portland, Oregon, which is owned and operated by Defendants (collectively "Woo"). Woo's servers were paid a wage at or exceeding the Oregon minimum wage, which at the time was higher than the federal minimum wage, and also received a portion of their daily tips. The servers were required to contribute their tips to a "tip pool" that was redistributed to all restaurant employees, except managers. Between 55% and 70% of the tip pool went to the kitchen staff (e.g. dishwashers and cooks), who are not customarily tipped in the restaurant industry. The remainder of the tip pool (between 30% and 45%) was returned to the servers in proportion to their hours worked.
Plaintiff alleged that Woo's tip pooling policy violated the FLSA's minimum wage provisions. She argued that the FLSA requires employers to allow employees to keep all of their tips, except where the employee participates in a tip pool with other customarily tipped employees. Because Woo's tip pooling policy included employees who are not customarily and regularly tipped, Plaintiff argued it was invalid under the FLSA and Woo was required to pay her the minimum wage plus all of her tips.
The Court of Appeal held that Woo's tip pooling policy did not violate the FLSA because the FLSA only restricts tip pools to employees who are customarily tipped when the employer takes a tip credit. Tip pools are valid where there is an explicit arrangement to turn over or redistribute tips and there is no "statutory interference" that would invalidate the arrangement. The Court found that the language of the statute limiting tip pools to customarily tipped employees imposes a condition on taking a tip credit and does not state a freestanding requirement. A "tip credit" is where an employer is allowed to take credit for a certain amount of tips earned by their employees toward the employer's payment of the minimum wage. Tip credits are not allowed under Oregon law, and so Woo was not allowed to, and did not, take one. Because Woo did not take a tip credit, its tip pooling requirement was not subject to this limitation. Therefore, the Court found that there was no "statutory interference" and Woo's tip pooling requirement was valid.
This case provides employers with greater clarity under federal law regarding which employees can be included in a tip pool when their employees make at least the minimum wage and the employer does not take a tip credit. However, employers are cautioned to ensure that any tip pooling policy complies with both the law in their respective state as well as federal law. Beware: a tip pooling policy valid under federal law does not necessarily mean that it is legal under state law.
Cumbie v. Woody Woo, Inc., No. 08-35718
Saturday, February 13, 2010
Best Buy buys a settlement
Best Buy has requested that a judge approve a $900,000 settlement in a New York State wage-hour class action in which the plaintiffs sought payment for time worked “off-the-clock.” That working time comprised the minutes spent going through security clearings at the end of the work day, assumedly to ensure that employees did not steal anything during their shifts.
The parties decided to settle the action, although they maintained their respective positions. The employer, however, has agreed to modify its operating procedures to allow all employees to remain on the clock until their manager allows them to leave the store.
Employer compulsion or the lack thereof is the key. Where the employer compels an activity related to the job, the activity is working time and compensable. The other element is how integrally related to the main job is the side activity.
These preliminary and postliminary issues are a real danger to the employer because, often, the employer may not even appreciate that this “little” activity or routine or inconvenience to employees is actually “work,” which can then lead to a single employee filing an action (as was done here) and everybody else coming on board. Be proactive! Analyze every non-exempt job and ascertain if there are preliminary or postliminary activities involved or related to these jobs, then apply the above-referenced analysis and make the call on whether it is or is not working time.
Turner v. Best Buy Company, Inc.
The parties decided to settle the action, although they maintained their respective positions. The employer, however, has agreed to modify its operating procedures to allow all employees to remain on the clock until their manager allows them to leave the store.
Employer compulsion or the lack thereof is the key. Where the employer compels an activity related to the job, the activity is working time and compensable. The other element is how integrally related to the main job is the side activity.
These preliminary and postliminary issues are a real danger to the employer because, often, the employer may not even appreciate that this “little” activity or routine or inconvenience to employees is actually “work,” which can then lead to a single employee filing an action (as was done here) and everybody else coming on board. Be proactive! Analyze every non-exempt job and ascertain if there are preliminary or postliminary activities involved or related to these jobs, then apply the above-referenced analysis and make the call on whether it is or is not working time.
Turner v. Best Buy Company, Inc.
Thursday, February 4, 2010
Employer: Here Be Dragons on your Legal Map
The Second Circuit Court of Appeals has held that a regional director of advertising sales for the Elite Traveler magazine was non-exempt under the Fair Labor Standards Act. The Court rejected the contention that the employee fell within the administrative exemption.
The administrative exemption and inside sales people have enjoyed a fraught history in the courts. Courts have held that such employees are “white collar production employees” in that they are really only “producing” the goods of the employer and not engaging in the ancillary, back-office kinds of duties that are deemed administrative under the FLSA. In this case, the Second Circuit continued that line of reasoning.
The Court found that as the primary duty of the employee was selling advertisements to individual customers and not promoting sales generally, the employee was only a producer, not an administrative employee.
Although there was evidence that the plaintiff developed new clients with the goal of increasing advertising sales generally, her primary duty remained selling specific advertising space to clients.
The administrative exemption is very fuzzy, and this case is a good example of the problems involved in claiming it--an employer may succeed, but only after paying a hefty toll to find out. There is a continuing tension between whether an employee is merely producing goods or is performing the more esoteric duties that support and comprise the business. Those duties are administrative, but precise definitions are difficult to come by. The upshot: 'here be dragons' an employer's legal map----if you go all in on the administrative exemption, be prepared to have a beefy stack for an attorney in your litigation budget.
Reiseck v. Universal Communications of Miami Inc., 09-1632 (2nd Cir 2010)
The administrative exemption and inside sales people have enjoyed a fraught history in the courts. Courts have held that such employees are “white collar production employees” in that they are really only “producing” the goods of the employer and not engaging in the ancillary, back-office kinds of duties that are deemed administrative under the FLSA. In this case, the Second Circuit continued that line of reasoning.
The Court found that as the primary duty of the employee was selling advertisements to individual customers and not promoting sales generally, the employee was only a producer, not an administrative employee.
Although there was evidence that the plaintiff developed new clients with the goal of increasing advertising sales generally, her primary duty remained selling specific advertising space to clients.
The administrative exemption is very fuzzy, and this case is a good example of the problems involved in claiming it--an employer may succeed, but only after paying a hefty toll to find out. There is a continuing tension between whether an employee is merely producing goods or is performing the more esoteric duties that support and comprise the business. Those duties are administrative, but precise definitions are difficult to come by. The upshot: 'here be dragons' an employer's legal map----if you go all in on the administrative exemption, be prepared to have a beefy stack for an attorney in your litigation budget.
Reiseck v. Universal Communications of Miami Inc., 09-1632 (2nd Cir 2010)
Wednesday, January 27, 2010
Quiz: Are Salaried Employees Entitled to Overtime?
Yes, salaried employees are often entitled to overtime! People frequently assume that overtime pay is only for hourly employees, but this is wrong. Being paid a salary is not a factor – what matters most is the kind of work you do.
A salaried employee, like an hourly employee, must be paid overtime unless he or she meets the test for exempt status as defined by federal laws. So – the easy answer to this common question is that being paid a salary is not a factor. Do not assume that you are not entitled to overtime pay just because you are paid a salary--you may be entitled to overtime pay.
A salaried employee, like an hourly employee, must be paid overtime unless he or she meets the test for exempt status as defined by federal laws. So – the easy answer to this common question is that being paid a salary is not a factor. Do not assume that you are not entitled to overtime pay just because you are paid a salary--you may be entitled to overtime pay.
Friday, January 15, 2010
An ounce of prevention and the FLSA
The number of FLSA collective actions had an uptick in 2009, along with alot of other employment litigation--predictable as the workforce encounters an economic crunch... This trend will undoubtedly continue in 2010.
In wage and hour class actions, recent cases of note include Foot Locker Retail Inc., Vermont state employees, H&R Block, AT&T call center workers, Cemex Inc. and First Residential Mortgage Network Inc.
Given the increase in FLSA collective action activity, all employers should be mindful of their classifications of employees and pay practices. As usual, an ounce of prevention is worth a pound of cure.
Employer should spend a little money up front to (1) confirm that job descriptions truly describe exempt executive, administrative, professional, computer professional or outside sales positions; (2) confirm that employees are actually doing what their job descriptions say they are supposed to do; and (3) ensure that exempt employees are being paid at least the minimum qualifying salary. In addition, to avoid other potential wage and hour litigation, employers should confirm that non-exempt employees are recording all hours worked and that individuals that are treated as independent contractors are not really employees.
As the economy eventually rebounds and temporary workers or independent contractors are hired to fill gaps before permanent positions are created, employers are particularly advised to handle these groups with care.
In wage and hour class actions, recent cases of note include Foot Locker Retail Inc., Vermont state employees, H&R Block, AT&T call center workers, Cemex Inc. and First Residential Mortgage Network Inc.
Given the increase in FLSA collective action activity, all employers should be mindful of their classifications of employees and pay practices. As usual, an ounce of prevention is worth a pound of cure.
Employer should spend a little money up front to (1) confirm that job descriptions truly describe exempt executive, administrative, professional, computer professional or outside sales positions; (2) confirm that employees are actually doing what their job descriptions say they are supposed to do; and (3) ensure that exempt employees are being paid at least the minimum qualifying salary. In addition, to avoid other potential wage and hour litigation, employers should confirm that non-exempt employees are recording all hours worked and that individuals that are treated as independent contractors are not really employees.
As the economy eventually rebounds and temporary workers or independent contractors are hired to fill gaps before permanent positions are created, employers are particularly advised to handle these groups with care.
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