Latest Trends in Labor and
Employment Law
Presented By
Shawn R. Lillie, Esq.
Allen, Summers, Simpson, Lillie & Gresham, PLLC
80 Monroe Avenue, Suite 650
Memphis, TN 38103
(901) 763-4200
Latest Trends is Labor and Employment
Law
Four Topics:
1. FLSA update
2. Social Media issues
3. EEOC Update
4. NLRB Update
Fair Labor Standards Act update
• Beginning in 2009, there was an infusion of money into
the DoL and the EEOC.
• This money was used for various initiatives, hiring
additional investigators, attorneys, and administrative
staff to vigorously enforce the federal employment
laws.
• We continue to see DoL investigations and employer
liability of unpaid wages.
• Additionally, trial attorneys are filing more and more
FLSA collective action cases against employers.
Be Careful…
“Our employees are all paid on a salary basis, so they are not
entitled to overtime.”
“As long as our employees are given the job title of
‘manager’ or given at least some supervisory responsibility,
we can classify them as exempt employees.”
“Our employees all signed an agreement stating that they
waived their right to receive overtime pay.”
“Our employees may be at work for 45 hours a week, but we
dock 1 hour a day to account for meal breaks.”
Be careful…
“We
don’t have to pay for overtime unless it was approved in
advance.”
“We pay overtime, but we average our employees’ hours over two
weeks.”
“The training that our employees attended last Saturday was ‘offthe-clock’, so we don’t need to pay overtime.”
“We’ve never been audited or had a problem, so I’m sure we’re in
compliance.”
“We just give comp time instead of overtime.”
Fair Labor Standards Act update
• The biggest problems are unpaid overtime and “off the
clock” cases.
• Unpaid overtime – often results from misclassifying an
employee as exempt, when they don’t meet the
exemption.
• Most employers think they are correct in their
determinations.
• In my experience, many employers are wrong.
• The biggest myth in all of labor law is that if you pay
someone a salary, that means they are exempt.
General Points to remember
• The burden of proof is on the Employer to show an
exemption is warranted.
• The exemptions by law are “narrowly construed.”
• Courts will defer to the Department of Labor’s
interpretations and decisions.
FLSA – White Collar Exemptions
Main white collar exemptions:
• Executive;
• Administrative; and
• Professional.
• There are some other exemptions (Outside Sales,
Computer Employee, etc.).
Three Tests for Exemption
Salary Level
Salary Basis
Job Duties
Minimum Salary Level - $455/week
For most employees, the minimum salary level required
for exemption is $455 per week
The $455 per week may be paid in equivalent amounts for
periods longer than one week:
• Biweekly:
$910
• Semimonthly:
$985.83
• Monthly:
$1,971.66
Salary Basis Test
• Regularly receives a predetermined amount of
compensation each pay period (on a weekly or less
frequent basis)
• The compensation cannot be reduced because of
variations in the quality or quantity of the work
performed
• Must be paid the full salary for any week in which the
employee performs any work
• Need not be paid for any workweek when no work is
performed
Salary Deductions – General Rule
• An employee is not paid on a salary basis if deductions
from the predetermined salary are made for absences
occasioned by the employer or by the operating
requirements of the businesses
• If the employee is ready, willing and able to work,
deductions may not be made for time when work in not
available
Permitted Deductions
Seven exceptions from the “no pay-docking” rule:
1.
Absence from work for one or more full days for personal reasons, other than
sickness or disability
2.
Absence from work for one or more full days due to sickness or disability if
deductions made under a bona fide plan, policy or practice of providing wage
replacement benefits for these types of absences
3.
To offset any amounts received as payment for jury fees, witness fees, or
military pay
Penalties imposed in good faith for violating safety rules of “major
significance”
Unpaid disciplinary suspension of one or more full days imposed in good faith
for violations of workplace conduct rules
Proportionate part of an employee’s full salary may be paid for time actually
worked in the first and last weeks of employment
Unpaid leave taken pursuant to the Family and Medical Leave Act
4.
5.
6.
7.
Improper deductions
• Deduction for a partial-day absence to attend a parentteacher conference
• Deduction of a day of pay because the employer was
closed due to inclement weather
• Deduction of three days of pay because the employee
was absent from work for jury duty, rather than merely
offsetting any amount received as payment for the jury
duty
• Deduction for a two day absence due to a minor illness
when the employer does not provide wage replacement
benefits for such absences
Problem
1. Salaried exempt employee is missing a lot of work.
2. The employee is not generally required to work
overtime.
3. Employer deducts for time missed.
4. No time records are kept.
• What legal issues do you see?
• How could the employer deal with this employee?
Executive Exemption
• Primary 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; and
• Authority 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.
Administrative Employee Exemption
• Whose 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; and
• Whose primary duty includes the exercise of discretion
and independent judgment with respect to matters of
significance.
Learned Professional Exemption
• The employee’s primary duty must be the performance
of work requiring advanced knowledge
• In a field of science or learning
• Customarily acquired by a prolonged course of
specialized intellectual instruction
Does the employee have an advanced
degree in their area of work?
“Off the Clock” Cases
• Suffer or permit to work concept
•
Working through lunch
•
Working on off days
•
Being required to clock out and still work, etc.
http://www.dol.gov/whd/regs/compliance/whdfs22.pdf
See handout – Fact Sheet #22
These cases often lead to collective action lawsuits…
FLSA Collective Action Cases
• Plaintiffs’ lawyers are filing more and more collective action cases
under the FLSA.
• These cases can cost hundreds of thousands of dollars.
• Most insurance policies do not cover these types of cases.
• Some plaintiffs’ attorneys routinely screen for these cases, or look
for ways to file them.
• FLSA provides an attorneys’ fees provision.
• Employers need to make sure they are complying with the law to
avoid serious problems.
• Be sure to conduct audits of your salaried positions (“good faith
defense”).
Social Media Policies & Issues
• Lots of attention given to social media policies
• NLRB has found some to be overbroad and invalid
• Be careful before firing someone for posting something
work-related on Facebook, Twitter, etc.
• Employees in non-union facilities still have NLRA
Section 7 rights, including the right to make comments
about terms and conditions of employment
Sample Social Media Policy
• See Handout
EEOC Update
• The EEOC is making headlines.
• They won’t settle a case they have filed without a press
release.
• They won’t let parties settle a charge without knowing
the settlement amount.
• They are seeking headlines and numbers to report to
Congress on what a great job they are doing enforcing
federal civil rights laws.
• If you get sued, you will likely get your name in the
paper…and on the internet.
EEOC Update
Since 2000, the total number of EEOC charges has increased over
20%.
We are seeing a lot of the following cases:
• Race, sex, age discrimination
• Disability discrimination and reasonable accommodation
• Retaliation
The EEOC has also filed a good number of class action cases
• Texas Roadhouse – class wide age discrimination
• Bass Pro Outdoor World – class wide race discrimination
• Equal Pay Act issues
EEOC Update
Major problem areas:
1. Inconsistent Policy Enforcement
2. Performance Evaluation problems
3. Stray remarks (age, sex, etc.)
How to fight these problem areas:
1.
2.
3.
Good policies/evaluations
Consistent Enforcement/accurate ratings
Supervisory Training
NLRB Update
1. D.C. Circuit Court delays implementation of NLRB
posting rule.
• Previously scheduled to go into effect on April 30,
2012.
• Now, delayed indefinitely until Court of Appeals can
rule on it.
NLRB Update
1. New union election rules went into effect
April 30, 2012.
• Quick elections – ambush elections
• Instead of 35-45 days for a “campaign” period,
employers will have perhaps 2 weeks, at most
This is going to be dangerous for some unwary
employers.
What you can do now 1.
Focus on maintaining positive employee relations.
2.
Find ways to listen to your employees.
3.
Conduct a realistic assessment of your
vulnerability to unionization.
4.
Train your supervisors.
5.
Communicate with your workforce about unions,
as necessary.
What you can do now - cont’d.
6.
Be prepared to respond if a petition is filed.
7.
If there is a hint of union talk, don’t ignore it. You
may need to take immediate steps.
8.
Control rogue managers/supervisors.
9.
Continue to explain “Economics” to your
employees.
10.
Review policies and address any problem areas.
Questions?