Wage and hour lawsuits outnumber all other class actions combined

According to a 2010 survey of more than 1,800 legal and HR professionals, one-third of respondents were hit with a wage and hour claim in the past year. At the same time, more than half of respondents shared that their organization has increased spending for wage and hour compliance.

Shanti Atkins, the President and CEO of ELT, the workplace compliance training company that conducted the survey, explains the dramatic rise in claims: “Employers are being hit from two sides. On one, there is a better funded, more fully staffed Dept. of Labor (DOL) that has made fighting wage theft one of its key priorities. On the other side are aggressive plaintiff law firms that literally salivate at these easy-to-identify and easy-to-win, lucrative class actions.”

To complicate matters further, the DOL reports that more than 80% of employers are out of compliance with federal and state wage and hour laws! The top Fair Labor Standards Act (FLSA) that get employers in trouble are:

• Misclassifying a non-exempt employee (eligible for overtime) as salaried/exempt
• Not paying overtime to non-exempt employees for all hours worked, including unauthorized overtime
• Making improper salary deductions from exempt and non-exempt employees

Go here for clear guidelines on how to comply with FLSA regulations – and practical forms and recordkeeping tools to keep you on track.

Wage and hour lawsuits outnumber all other class actions combined

When wicked winter weather grounds your workforce

“Oh the weather outside is frightful/But the fire is so delightful/And since we’ve no place to go/Let it snow! Let it snow! Let it snow!”

No place to go? What about employees trying to get to their jobs! What are they supposed to do when the wind is howling, the snow is drifting and the roads are icing over?

With much of the country dealing with the blustery weather that is so common in the months of January and February, now might be a good time to review your HR rights and responsibilities when crippling snowstorms are in the forecast.

The main issue for most employers is whether or not they must pay employees who don’t - or can’t - come to work because of weather conditions. And if you can charge them with vacation or other PTO for missed work.

Like many pay issues, this depends on the exemption status of the employee. Under FLSA guidelines, employers should use discretion before docking the pay of exempt employees who miss work for weather-related reasons. Basically, if you remain open during bad weather and an employee does not report to work, you may make pay deductions for full-day absences only. (If the employee works any part of the day, you must pay him or her for the entire day.) Yet if you shut down your business, you should pay exempt employees their regular salaries. Keep in mind, however, that you have the right to require employees to use accrued time off to cover the missed work – assuming they have vacation or PTO available to them.

Regarding non-exempt hourly employees, it’s up to you whether to pay them for snow days. Basically, the FLSA doesn’t require you to pay them for hours they would have worked if severe weather wasn’t a factor. But again, you may require non-exempt employees to use vacation or PTO to cover their absence. Also, it’s up to you whether you allow hourly employees to make up any weather-related lost work.

Next order of business: Does your employee handbook contain a severe weather policy? If not, you’ll want to develop one ASAP that covers:

Closing the business – How you’ll determine whether to shut down for severe weather (snowfall more than six inches, local school districts are closed, etc.)

Communication – How you'll communicate a business closure to your employees (call-in number, website with instructions, etc.)

Employees with children - Whether employees who are able to report to work, but who have children whose schools or daycare facilities are closed, may bring their children to work

Telecommuting - Whether employees who are unable to report to work may work from home - and the conditions surrounding this arrangement (such as remaining accessible via computer or telephone)

A final note: While not a policy issue, you may also want to provide a list of cold-weather precautions for your employees, such as how they can protect themselves in frigid temperatures, safe-driving trips (including emergency tools to stow in their vehicle, like a snow scraper, flares and flashlight) and what to do in case of an accident.

When wicked winter weather grounds your workforce

Uh-oh! Overtime oversight puts employer in the legal hot set

A few months back, I talked about how overtime lawsuits are on the rise (Can salaried employees receive overtime pay?), and that employers need to be especially careful with how they classify their employees (exempt vs. non-exempt).

Well, I just learned of a recent court case that highlights just how important it is to get this right. As the blog post, Court of Appeals affirms overtime ruling for non-exempt worker under FLSA, explains, “The Second Circuit has ruled in favor of a worker who was denied overtime pay, ruling that the Fair Labor Standards Act does not exempt workers whose job skills are not customarily the product of advanced educational training.”

Here are the details of Young v. Cooper Cameron Corp.: Andrew Young was a highly skilled “Product Design Specialist II” with 20 years of engineering-type experience when he was hired. His work at Cooper Cameron involved complicated technical expertise and responsibility, including designing hydraulic power units for oil drilling rigs. Like his fellow PDS IIs at the company, however, Young did not have any formal education beyond a high school diploma.

When he lost his job in 2004 in a reduction in force (RIF), he sued the company for the overtime he’d been denied due to his classification as an exempt professional.

The court ruled in his favor.

Why? The issue lies with the definition of “professional capacity,” a legal standard that exempts an employee from overtime pay under the FLSA. According to FLSA regulations, an exempt professional is someone “whose primary duty consists of the performance of work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized instruction and study.”

The judgment in Young’s favor was due largely to the fact that although Young had technical expertise, his job did not require a prolonged course of specialized intellectual study. Plus, none of the other product design specialists at Cooper Cameron had advanced degrees – they were all high school graduates with no college training.

Not a good day in court for Cooper Cameron. Young was wrongly classified as an exempt professional and as such, was entitled to overtime pay under FLSA. (To make matters worse, the court found that the company did not act in good faith when it classified Young, changing his job title from a non-exempt position to a title that “sounded” more professional.)

Don’t let the overtime rules overwhelm you! Check out the ComplyRight Now E-Guide Determining Exempt vs. Non-Exempt Employees, for help figuring out whether an employee is exempt or non-exempt – and to steer clear of FLSA-related employee lawsuits like this.

Uh-oh! Overtime oversight puts employer in the legal hot set

The Carnival of HR is in town! Welcome!

Step right up! We have an amazing carnival for you today! Experience the thrills of new opportunities, the heartbreak of termination. See the magic shows, costumed clowns and daring feats on the high wire. Welcome to the Carnival of HR!

Staging the show

A great carnival depends upon everyone doing their part to make the show great. And not everyone can be the stage manager. Learning how to be an excellent cast member is the subject of Dan McCarthy’s post on 10 Ways to be a Great Follower

Clowns get to hide behind make-up and costumes, but in our online world, should bloggers get to do the same? Trisha McFarlane explores the concept of anonymous bloggers in her post.

Then blogger Lance Haun deals with other side of the issue in his post on the Workplace Implications of Facebook Friending/Defriending, where he suggests that a little bit of costuming might be preferable to the complete transparency of a Facebook connection with coworkers.

That theme is echoed in Jessica Miller-Merrell post about maintaining a Social Media Mullet (business in the front, party in the back) whenever we connect with colleagues online. And Melissa Prusher serves up advice on using Twitter as a part of that online conversation with clients and colleagues. (No sign of the popcorn and cotton candy, yet, Melissa. Sorry!)

What's your show about?

Every carnival needs a description of the shows, performers and events. And the same applies to the workplace. Creating clear and accurate job descriptions is critical to the success of the show as well as the performers, according to blogger Becky Regan in her post The Single Most Important Tool You Need to Practice Sounds HR Management.

One of the keys to a successful carnival is keeping it fresh. Problems need to be addressed as they arise, shows need to be reviewed and plans need to be made. That on-going process of adjustment works for your employees, too, according to Louise Barnfield in her post on transforming the dreaded annual review into a constantly updated tool for growth.


The cast and crew

Before you accept your role in the carnival as a given, Steve Boese’s HR Technology blog offers advice on getting a better deal at work. We may not be famous athletes or even the star of the show, but his post “Help You, Help You” offers suggestions about applying the techniques professional agents use to negotiate the big bucks.

Everyone wants to be a star, right? Wrong! Some people are choosing to pass up a chance at that management position, especially when they see current managers struggling with insufficient resources, lack of training and minimal support from higher-ups. That's the subject of HR Bartender Sharlyn Lauby post. (Oh and thanks for the mention in your post! Like all performers, we like seeing our name out there on the marquee...or at least in a post or two.)

We all know there's no show without the performers, right? No matter what their position, making sure your people are committed, content and creative is the message behind Melanie Quinn's post on Keeping Your Employees.


When the show goes wrong

Even in the best of carnivals, shows will flop, rides will break and even the clowns will cry. PunkHR blogger Laurie Ruettimann offers advice on seeing these as chances to grow and develop character in her post Coulda Been a Contender.

And when that crash takes the form of a termination, Gautam Ghosh offers some advice on exit interviews, and why they can't tell as much as we think.

Feeling like your safety net is full of holes? Grab on to your trapeze and fly over those job gaps, lay-offs and career changes with grace, thanks to the advice being offered up in Amit Bhagria’s post on managing resume dilemmas.

Stage directions and union rules

Even in the world of carnivals, there are rules and procedures that keep the rides going and the games stocked with unidentifiable stuffed animals (is it a bear, a dog or a…duck?) The same is true in our HR world (minus the ducks), as we try to stay on track with ever-shifting federal and state rules and regulations.

Blogger Giressh Sharma offers some advice on determining FMLA eligibility amid a fun-house of regulatory changes and employee recordkeeping.

PseudoHR's April Dowling brings us an example of a rule gone mad, in her story of exempt employees required to punch a time clock. Risks of legal repercussions aside, she explains why sometimes what looks like a little rule can do big damage to morale.


Tricks of the trade

Everyone knows that side shows rely on smoke and mirrors to perform their magic. Blogger Wally Brock thinks the current hype around the concept of employee engagement would fit right in with those ever-popular acts.

Jon Ingham offers a different view, with the mirrors stripped away, and a clear spotlight on the value of employees in his post on The People Factor.

Kelly Dingee's post on finding time for sourcing even when there is no time available goes beyond advoce to recruiters, and offers something we all need to do if we want to succeed -- Find the time to do what needs to be done to take our careers, companies and clients to the next level.

When the lights go down

After the crowds leave, it's time to count the money. Cathy Missildine-Martin thinks that even after the economic recovery, CEOs will be expecting a lot more counting and numbers from HR, as the focus on metrics continues.

_________________________

We're stepping out of the ring for now. Enjoy the show, visit all of the talented performers who contributed posts, and let us know what you think.

Thank you all for coming to our carnival. We appreciate the participants, and you the readers. Y'all come back now, you hear?

The Carnival of HR is in town! Welcome!

Overtime lawsuit could pack a huge financial wallop for UPS

Remember last week’s post on overtime pay – and the spike in employee lawsuits to recover “lost” overtime wages? And how important it is to properly classify employees as exempt or non-exempt, according to FLSA regulations? Well, no one is feeling the pain of this more than UPS right now.

Filed August 19 in federal court, a class action lawsuit claims that United Parcel Service (UPS), the world’s largest package delivery service, failed to pay as much as $100 million in overtime wages to its account managers. The plaintiff, a UPS employee since 2005, says she has regularly worked 60 hours a week but was only paid a straight salary. She adds that UPS misclassified her and other account managers as outside salespersons or administrative employees exempt from overtime pay. And therein lies the problem:

The suit says UPS' account managers don't make sales or obtain contracts nor do they perform managerial type work, and therefore shouldn't be classified as outside salespersons or administrative employees. (The Boston Globe)

To make matters worse, the lawsuit also claims that account managers were not given mandatory meal and rest breaks – and that UPS doesn’t keep accurate records of hours worked.

As a result, UPS is facing a potential jury trial, more than $100 million in damages and the payment of attorneys' fees. The class-action suit also seeks to represent other UPS employees facing a similar situation.

So I’ll wrap up today’s post with the same suggestion as last week: Check out the ComplyRight Now E-Guide, Determining Exempt vs. Non-Exempt Employees (and other FLSA compliance tools) for help figuring out whether an employee is exempt or non-exempt. With overtime lawsuits growing at a breakneck pace, now is the time to be absolutely certain you’re following FLSA exemption rules to the letter of the law.

Overtime lawsuit could pack a huge financial wallop for UPS

Can salaried employees receive overtime pay?

Towering billboards and catchy advertisements shout the message: “Unpaid overtime hours? Wronged by your employer? You may be entitled to money!”

Class action lawyers are enjoying a brisk business targeting employees who believe they haven’t received their entitled overtime pay – and helping them recover these “lost” wages in court. With the Department of Labor (DOL) estimating that a staggering 70 percent of employers aren’t in compliance with the Fair Labor Standards Act (FLSA) in some manner, now is the time to review one of the biggest areas of vulnerability for employers: misclassifying employees as exempt vs. non-exempt.

The DOL states that:

The FLSA, which prescribes standards for the basic minimum wage and overtime pay, affects most private and public employment. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

Determining those employees “who are not otherwise exempt” is the tricky part, however. Problems may arise if it appears you’re avoiding paying an employee overtime pay by misclassifying the non-exempt employee as an exempt employee. In some cases, salaried employees are entitled to overtime pay; the distinction is whether the employee is “exempt” according to FLSA requirements. While most exempt employees must receive a salary, salaried workers aren’t necessarily exempt from being paid overtime for working more than 40 hours in a week.

Generally speaking, employees who work in an executive, administrative or professional capacity - as well as certain employees in computer-related positions and outside salespeople -are exempt. To qualify for an exemption, these employees must meet certain tests regarding their job duties and be paid a salary of at least $455 per week. Job titles do not determine exempt status. Rather, an exemption applies when an employee’s specific job duties and salary meet all the DOL regulations.

Check out the ComplyRight Now E-Guide, Determining Exempt vs. Non-Exempt Employees, for help figuring out whether an employee is exempt or non-exempt – and to steer clear of FLSA-related employee lawsuits.

Can salaried employees receive overtime pay?