Wednesday, June 29, 2016

Quoted in Software Advice: $47,476: How to Prepare Your SMB for the Overtime Rule Change

Check out Brian Westfall's article on Software Advice: $47,476: How to Prepare Your SMB for the Overtime Rule Change. By far, the most important thing is that it includes a quote from me (and I provided some additional consultation) ;-) - but it's also a nice resource in its own right.

It also includes a cool little tool that let's you enter: (1) a current salary; and (2) the hours of overtime worked per week; and then spits out a reduced salary that - when accounting for the addition of overtime premium payments under the new rules - will equal the old salary. Obviously, it is somewhat limited because many employees will not work exactly the same amount of overtime every week; but it's a good ball-parking tool.

You can read my whitepaper New Department of Labor Overtime Regulations Limiting Exemptions here.

Tuesday, June 28, 2016

How many ways can you violate employment laws in one conversation?

Time for an issue-spotter pop quiz. I'll paraphrase the setup from this CDT article, Teen fired after asking for the same pay as her male co-worker at a pizza shop (assuming the facts as-reported are true):
A young woman calls her employer to complain that a young man with the same job (and experience level) is making more money for the same work. The employer fires her immediately and claims it was for violating a policy against discussing pay with co-workers.
Ready, annnnd.... go!
  •  The male gets paid more than the female for substantially equal work - prima facie Equal Pay Act violation!
  • The employer treated a substantially similar male better than the female in an employment action (pay decision) - prima facie disparate treatment claim under Title VII!
  • The employee engaged in protected activity (complaining about wage discrimination), suffered a materially adverse action (termination), and there appears to be a causal connection (extraordinarily short temporal proximity) - prima facie retaliation claim under Title VII!
  • The employee acted in concert with her male co-worker to address the terms and conditions of her employment by discussing their wages and got fired for expressly that reason - prima facie case of retaliation for protected concerted activity under the NLRA (at least according to the NLRB's interpretation of it)! 
And that's just the federal law! Four solid prima facie cases in a two-sentence setup. That's gotta be some kind of record. Did I miss any? The employer may have some defenses (and there may be disputes of fact), but this certainly does not sound very good. 

HT: Saw it on Facebook via Justin Miller

Monday, June 27, 2016

Lawffice Links - New and entertaining employment law cases

A few entertaining employment law cases for your enjoyment:

Monday, June 20, 2016

EEOC on Wellness Programs: Final Rule, Q&A, and Sample Notice

The federal agencies have really been cranking out new rules, guidance, and other resources the past few months. If you haven't seen it yet, check out:
Here's a decent fly-over from an EEOC press release:
Not Official Use.
Limited financial and other incentives are permitted as part of voluntary wellness programs under the rule. However, employers may not require employees to participate in a wellness program; may not deny or limit their health coverage for non-participation; may not retaliate against or interfere with any employee who does not want to participate; and may not coerce, threaten, intimidate or harass anyone into participating. 
Employees also must receive a notice describing what information will be collected as part of the wellness program, who will receive it, how it will be used, and how it will be kept confidential. If the wellness program provides the notice, the employer must still ensure that their employees receive it.
Hmmm, "notice" you say? What might that look like? The EEOC is glad you asked!
Have fun!

Thursday, June 16, 2016

Thursday, June 9, 2016

Fourth Circuit: Exotic Dancers are Employees

Wage and hour claims from "exotic dancers" (or "strippers" as some people might call them) are surprisingly common. Yesterday, the Fourth Circuit Court of Appeals issued an opinion on this topic in McFeeley v. Jackson Street Entertainment.

The issue was whether the dancers were employees or independent contractors. The Court applied the "economic realities test":
Not official use.
The touchstone of the “economic realities” test is whether the worker is “economically dependent on the business to which he renders service or is, as a matter of economic [reality], in business for himself.” Application of the test turns on six factors: 
(1) [T]he degree of control that the putative employer has over the manner in which the work is performed; 
(2) the worker’s opportunities for profit or loss dependent on his managerial skill; 
(3) the worker’s investment in equipment or material, or his employment of other workers; 
(4) the degree of skill required for the work; 
(5) the permanence of the working relationship; and 
(6) the degree to which the services rendered are an integral part of the putative employer's business.
Ultimately, the Court concluded that the dancers in this case were employees, affirming the decision of the district court.

Employee vs. Independent Contractor cases are notoriously fact-dependent, utilize numerous factors, and rarely have easy answers. Last year, I ran a series of entries on the various tests used in Pennsylvania. Enjoy!