I see many employee policy manuals that prohibit “unauthorized overtime”, but employers must still pay an employee his overtime pay, whether the time worked was authorized or not.
Employers need to understand that all governmental enforcement agencies, such as the Texas Workforce Commission (“TWC”) and the U.S. Department of Labor (“DOL”), treat paychecks as sacred and not subject to any reduction or withholding because of a disciplinary reason.
Unauthorized overtime can result in disciplinary action, like a written warning, a suspension or a firing, but not docking of a paycheck or any refusal to pay.
Many employers feel that such [overtime] should not be payable as long as the employer has not authorized the extra work, but the DOL’s position on that is that it is up to the employer to control such extra work by using its right to schedule employees and to use the disciplinary process to respond to employees who violate the schedule.
In July 2016, in all likelihood you as an employer will have to start paying your employees more than $50,000 per year if you want to pay them on salary. If an employee makes less than $50,440 per year, by this summer that employee will need to be paid on an hourly basis and receive overtime whenever the employee works more than 40 hours in any one workweek.
Currently, an exempt “white-collar” employee who can legally be paid on salary only has to make $23,660 per year ($455 per week) and meet the specific duties of a professional, an administrator, a computer professional or an executive. This summer that number is widely expected to increase to $50,440 ($970 per week) and will be tied to an inflation formula that will raise that threshold number annually.
Employees can discuss their wages with their coworkers, despite many employers’ policies to the contrary. If this wasn’t clear enough when the National Labor Relations Board and the Fifth Circuit Court of Appeals emphatically told employers that (see this post for more information), now the federal Equal Employment Opportunity Commission is joining the chorus.
On January 21, 2016, the EEOC issued a 73-page proposed guidance to its investigators concerning retaliation claims. All of the laws EEOC enforces, like the Americans with Disabilities Act and Title VII, make it illegal to fire, demote, harass, or otherwise retaliate against applicants or employees because they complained to their employer about discrimination on the job, filed a charge of discrimination with EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit), or engaged in any other “protected activity” under employment discrimination laws (more on the proposed guidelines concerning retaliation is coming in future posts).
Slipped into the middle of the proposed guidance is a section emphasizing that not only will the National Labor Relations Board come after you as an employer for unfair labor practices if you fire someone for discussing their wages, but that the EEOC might pursue a claim against you also. The EEOC said that reprisal for discussing compensation may violate the retaliation provisions of laws it enforces, such as the Equal Pay Act (requiring that similarly-situated women be paid the same as men for the same work) or Title VII (prohibiting discrimination on the basis of race, gender, religion, etc.).
All employers should review their current written employment policies to assure that any statement prohibiting wage discussions among coworkers has been removed. In addition, employers must not fire, demote, cut the wages or hours of or otherwise retaliate against an employee who discloses his/her compensation package with coworkers or others, whether shared verbally, by showing another person the pay stub or even by posting information about any worker’s pay on social media.
Texas employers should have a policy to give employees advance warning of what to expect on a snow day, particularly in the Texas Panhandle, where we often have a couple of inclement weather days per year.
The easiest way to determine whether to keep your facility open or not is to follow your local school district’s decisions and let your staff find out through the media. That relieves you of having to communicate the decision to every employee. It is also helpful to your employees to be able to stay home with school-aged children who have no other place to go that day.
Texas and federal law do not specifically dictate when an employer must be open or closed during inclement weather, but they do dictate how compensation must be determined during those times.
Hourly employees do not have to be paid when they perform no work. Exempt employees, however, have to be paid their normal salaries when your facility is closed for weather reasons. On days when the company is open, but a salaried employee chooses not to travel because of road conditions near their house and therefore performs no work all day long, the exempt employee can be docked for that day or be required to use available paid time off.
The other pitfall with inclement weather days occurs when employees work at home on a snow day. If you give your employees the ability to remotely access their computers, if you allow them to take work home, or if you expect them to check emails and return phone calls on a snow day, you will need to pay them for those work hours (non-exempt employees) or that whole day (exempt employees).
The quiet week between Christmas and New Year’s is the perfect time for you as an employer to consider some resolutions for 2016. What can you do differently in 2016 to be a better employer and to avoid stepping on any legal landmines?
From 28 years of experience advising employers like you on employment law issues, here are my suggestions for 2016 resolutions with links to more information from previous posts on this website about these topics:
Resolve that you will make a decision about whether your employees and/or customers can openly carry handguns on your business premises. The open carry law goes into effect on January 1 and allows those who are licensed to carry concealed handguns to start carrying them openly in shoulder or hip holsters. You have the right as an employer to prohibit guns completely on your premises by both customers and employees, to just prohibit employees from carrying guns, to prohibit open carry but allow concealed carry, or to allow everyone to freely carry handguns on your premises. If you choose to ban either open or concealed carry by customers, you will have to post the §30.06 (concealed carry) and/or §30.07 (open carry) signs with the proper wording and font size required by the Texas Penal Code. To just prohibit employees from coming to work armed, you only need to add a policy to your employee policy manual. For more information about Texas gun laws in the workplace, click here.
Resolve that you will get ready for big changes in the overtime laws. If you have an employee to whom you pay an annual salary of less than $50,440, in mid-2016 you are going to have to move that employee’s compensation to an hourly rate and pay that employee overtime if he/she works more than 40 hours in any one workweek. Click here for more information about that change to the Fair Labor Standards Act regulations.
Resolve that you will stop using any kind of “contract labor”. The landscape has just gotten too rocky to use any worker whom you do not treat as an employee. Just give up on the idea that you can save the taxes or avoid the pains of having employees. The government is really cracking down on misclassification of workers as contract labor, day workers or independent contractors. That means that in 2016, you need to pay taxes on every worker, you need to provide every full-time worker with benefits, and you need to accept that you will have liability if that worker hurts or mistreats someone. Click here for more information about the dangers of misclassifying a worker as contract labor. If you think you are the exception to this rule, don’t proceed without a knowledgeable attorney’s legal opinion.
Resolve that you will update your employment policy manual. The requirements for written policies changed dramatically in 2015 due to the changes required by the Equal Employment Opportunity Commission, the National Labor Relations Board and the Department of Labor. Your policy manual is out of date unless your employment attorney has made significant revisions in the last six months. Click here for more information about some of the changes that are now required.
Resolve that you will learn and apply the new rules regarding pregnant employees. Take your maternity policy out of your handbook (because it will be considered discriminatory) and add instead a policy that allows pregnancy and maternity leave that is identical to what you allow when someone has a disability or serious illness. That means that you can’t set a standard 6-week maternity leave, but may have to be more flexible with each pregnant worker’s individual needs like the Americans with Disabilities Act requires with handicapped employees. Click here for more information about how to update your procedures regarding pregnant employees to comply with the new regulations.
Employers are generous but sometimes uninformed in December, handing out holiday gifts and bonuses without realizing the legal consequences. As an employer, you have to consider the tax and compensation consequences of your gifts. Bah Humbug!
The Fair Labor Standards Act divides bonuses into two categories: discretionary and non-discretionary. Discretionary bonuses must be decided in the employer’s sole discretion. They cannot be earned by any formula or used as a motivator or incentive. If they are truly discretionary (which is up to the employer to prove), cash bonuses do not have to be rolled into an hourly employee’s regular rate of pay on which overtime is calculated.
Holiday bonuses may be discretionary if they just fall like manna from heaven onto the employee without the employee knowingly working towards the bonus. Generally, the amounts, timing and basis for the discretionary bonus should not be announced in advance to avoid the appearance of being an incentive.
The National Labor Relations Board ruled last week that two unrelated companies may be held to be joint employers of an employee who works for just one of the companies. Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015), ruled that unrelated companies may be joint employers even if one employer has no power to hire, fire, supervise or determine the pay of an employee of the other employer.
The NLRB says that it “will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority”.
In other words, if you as a business owner contractually could say anything to your subcontractor about the work you want performed by the subcontractor’s employees, then you can be jointly liable to those employees if any of the subcontractor’s employment practices go awry, even if you never actually exercise any control over your subcontractor’s employees. Continue reading Employers Face “Joint Employer” Liability with Unrelated Companies→
The practice of many employers of using “contract labor” instead of employees to perform some jobs just got riskier as the Department of Labor (“DOL”) issued new guidance on who is an independent contractor. (Click here to read the DOL’s lengthy guidance).
The DOL concluded in an Administrator’s Interpretation issued July 15 that “most workers are employees under the Fair Labor Standards Act’s broad definitions”.
If most workers are employees, that means it is a high bar for any company to jump to prove that a person performing any work for the company is actually an independent contractor who will pay his own payroll taxes and will forego overtime, worker’s compensation, family and medical leave, health insurance under the Affordable Care Act and the other perks of being an employee. Continue reading DOL Cracks Down on Using Contract Labor→
Claiming that your employees are exempt from overtime is about to become much more difficult with release of new regulations this week by the U.S. Department of Labor (“DOL”) under the Fair Labor Standards Act (“FLSA”).
On June 29, 2015, President Obama announced that the DOL is issuing proposed rules that will probably go into effect in early 2016. Those proposed rules redefine which employees have to earn overtime on their hourly pay instead of being paid as an exempt salaried employee.
The result could be skyrocketing overtime costs and more frequent wage and hour suits against companies that fail to make this transition carefully.
The advantage for an employer of an FLSA exemption has always been that the employer doesn’t have to track that employee’s hours and doesn’t have to pay overtime wages of 1.5 times the hourly rate for anything over 40 hours worked in one workweek. That advantage will no longer be available to you as an employer in 2016 for those employees you pay less than $970 per week, which adds up to $50,440 per year. Continue reading Salary Basis for FLSA Exemptions Raised Dramatically→
In a recently posted database, the federal Department of Labor (“DOL”) has allowed the public to see the companies who have been investigated for various violations of the laws the DOL enforces, including overtime violations, minimum wage violations and independent contractor violations.
I quickly scanned the records just for 2014-2015. During that time, more than 35 Amarillo businesses were investigated. Some employed just three or four people. Others employed more than 100. But there are some visible trends in the local DOL investigators’ handiwork.
Local preschools were put under the microscope because they often pay their teachers on salary rather than hourly, resulting in frequent Fair Labor Standards Act violations. Amarillo and Canyon hotels are a favorite target, often because they pay housekeeping personnel by the room, rather than by the hour. Amarillo restaurants were repeated targets because of common violations of the tip wage credit, which allows restaurants to include tips in the calculation of whether their employees are making minimum wage or because the restaurant paid employees on salary. Local construction companies, heating and air companies and plumbers showed up on the investigation list probably because their blue-collar workers were not paid overtime correctly, weren’t paid for their travel time, or were put on salary as supervisors when they regularly performed labor that should have been paid hourly.
Other industries that were affected by the DOL’s local efforts in the last year included home healthcare, landscaping, retail, trucking, medical, automobile service and online companies.