Tag Archives: Federal Employment Law

New Overtime Rule Changes Salary Basis Requirement

Benefits, Compensation, Personnel Policies, , , , ,

Do you pay any employee on a salary basis instead of paying them hourly and overtime? Of course you do, so you need to be very aware of the new final overtime rule issued by the U.S. Department of Labor on May 17, 2016.

You must pay your salaried employees at least $913 per week ($47,476 per year) beginning December 1, 2016, or you will be in violation of the Fair Labor Standards Act (which you do not want to violate).

In the past, salaried employees had to be paid $455 per week ($23,660 per year) to qualify as an employee exempt from the FLSA’s requirement of paying overtime for every hour over 40 worked in any one workweek. That salary basis has doubled under the new regulations.

In addition to meeting this increased salary level, the salaried employee must perform the duties of an exempt employee (the white collar exemptions: executive, a professional or an administrator). These duties tests are much more difficult to meet than most people think, so don’t just assume that your salaried employees are actually exempt. For example, not every “manager” is an “executive exempt employee”, who under the FLSA must have the power to hire and fire and must supervise at least 2 full-time employees, as well as being in charge of a recognizable store, division or branch of your business.

This increase in the threshold salary required to consider an employee exempt could change the classification of many Panhandle-area retail managers and assistant managers, human resources directors, marketing professionals, bookkeeping employees, project managers, foremen, performers, and other employees who have not been earning overtime in the past.

Now those exempt employees will either get a raise to get them over the $913 per week threshold or they will have to be changed to nonexempt, hourly employees who earn overtime. Either way, it could mean an overall increase for the employee and higher payroll costs for the employer.   Continue reading New Overtime Rule Changes Salary Basis Requirement →

Cussing Out the CEO

Employee Rights, Termination, , , ,

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What is the proper response from the company when two employees express their anger at the CEO when they receive bonus checks by returning the checks, voiding them, and writing, “kiss my a– Bob,” and “eat sh– Bob” on the checks? According to the National Labor Relations Board, firing them is improper.

After returning the checks, the employees posted pictures of the checks on a private Facebook page.  Other employees followed suit by also voiding their checks and posting them to the Facebook page.  However, only the first two employees wrote profanities on their checks.  Not very long following this incident, both employees were fired.  They filed grievances shortly thereafter with the NLRB.

The NLRB reinstated the employment of the two West Virginia coal miners.  After their union voted against bonuses based on productivity, the coal mine management decided to implement the bonus program anyway.  Apparently the two miners were unimpressed with the company’s generosity.

The NLRB judge who presided over the case found that the two miners had been wrongly discharged and that the words on the checks, “while profane and offensive, were nevertheless expressions of protest and outrage over what those employees viewed as implementation of a plan that would adversely affect their safety conditions and which constituted what the employees believed was a surprising violation of the terms of the collective-bargaining agreement.” Continue reading Cussing Out the CEO →

Ban the Felony Box on Applications

Discrimination, Forms and Policies, Hiring, , , , , ,

If your employment application asks whether the applicant has ever been convicted of a felony, you may need to consider whether to “ban-the-box” that asks that question of your applicants. Why? Because nationally, over 100 cities and counties and over 185 million people live in a ban-the-box or fair-chance jurisdiction.  In addition, the Equal Employment Opportunity Commission is gunning for employers who exclude everyone with a criminal history from employment.

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The “ban the box” movement seeks to have employers consider an individual candidate’s job qualifications while prohibiting the employers from taking into account a candidate’s criminal history in the beginning of the application process.  Ban-the-box aims to provide applicants with a “fair chance” at employment by delaying any consideration of criminal history until a preliminary job offer is made.

Austin is the first city in Texas to “ban the box,” but it is likely that more areas of the Lone Star State will follow in the near future.  As of March 24, 2016, Austin passed the Fair Chance Hiring Ordinance, which prohibits employers from asking about or taking under consideration the criminal history of an individual until after making a conditional employment offer. While this ordinance does not cover state agencies or federal employment, it does apply to any private organization with 15 employees or more in the Austin city limits.

So Texas Panhandle employers don’t have to comply with the Austin ordinance if they have no employees in Austin, but they do need to worry about the EEOC claiming that a local employer discriminates in their hiring on the basis of race or ethnicity (it is the official position of the EEOC that “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions”).

So the wise employer will go ahead and take the “ever been convicted of a felony” question off of the application for employment. In addition, for both prudence and economic reasons (detailed criminal background checks aren’t cheap), smart employers will wait until they actually make a conditional job offer before checking the criminal record of a potential employee.

In addition, an employer should not: Continue reading Ban the Felony Box on Applications →

Preventing Workplace Violence

Personnel Policies, Training, , , , , , ,

Do you as an employer have a plan to address workplace violence?  This topic is front and center in the wake of the recent workplace shootings in Hesston, KS, Kalamazoo, MI, and Roanoke, VA.  Although legislation has been introduced to provide a “safe harbor” for employees and employers to report violent or threatening behavior, it is important for employers to assess their own workplaces and look at what can be done to make that environment as safe as possible.

The House of Representatives introduced the “Safe Harbor for Reporting Violent Behavior Act” on February 11, 2016, in response to the on-air shooting of a television reporter and cameraman in Roanoke, VA.  This bill would provide immunity from lawsuits to individuals who, in good faith, make a report about an employee (or potential employee) who exhibits violent or threatening behavior.

However, regardless of whether or not this bill passes, employers still have a duty to examine their workplace violence policies and take steps to decrease any possible dangers in the workplace.  Several things that should be done include: Continue reading Preventing Workplace Violence →

Employers Must Pay for “Unauthorized Overtime”

Compensation, Personnel Policies, , , , , ,

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.

The TWC explains it this way in their publication “Especially for Texas Employers”:

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.

Just saying in your employee handbook that an employee cannot work overtime without prior authorization is not sufficient. You as an employer need to take steps to closely monitor (and pay for) all hours actually worked. Continue reading Employers Must Pay for “Unauthorized Overtime” →

Paying Employees on Salary Soon to Get Expensive

Compensation, , , ,

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.

The new regulations proposed by the Department of Labor last summer to increase the required salary basis under the Fair Labor Standards Act are expected to be finalized in July 2016, according to a statement made by the Solicitor of Labor to the New York State Bar Association.

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.

Once the final rule is released in the summer of 2016, employers could have as few as Continue reading Paying Employees on Salary Soon to Get Expensive →

Let Employees Discuss Their Wages

Compensation, Discrimination, Employee Rights, Personnel Policies, , , , , ,

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).

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Employees Can Talk About Their Wages

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 Need Snow Day Policy

Attendence, Compensation, Forms and Policies, Personnel Policies, , , , ,

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).

I suggest that every employer adopt some kind of inclement weather policy similar to this one: Continue reading Texas Employers Need Snow Day Policy →

Texas Discrimination Charges Too Numerous

Discrimination, Employee Rights, Forms and Policies, Personnel Policies, Training, , , , , , ,

Texas leads the nation in number of charges filed with the EEOC alleging gender discrimination, race discrimination, age discrimination, and disability discrimination, according to a recent story from the Society for Human Resource Management.  It is time for more employee training and better personnel policies for your Texas business so you don’t have to battle a discrimination charge.

 

Holiday Gifts and Bonuses Can Trip Up Employers

Compensation, , , , , , , , ,

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.

If the holiday bonus is earned by the employee by meeting certain announced criteria, Continue reading Holiday Gifts and Bonuses Can Trip Up Employers →