Posted by marykeating on May 5, 2011 under Collective rights, Wage and hour issues | 
Today a new US Department of Labor regulation goes into effect that dramatically changes the acceptable method of calculating overtime pay. One of the strange quirks of the overtime law permits payment of half-time pay for overtime hours when an employer uses a fluctuating work week method of calculating pay. Under this system, a salaried employee who is not exempt from overtime, and whose number of hours may fluctuate from week to week, may be paid half of the salary rate for the hours over forty. This type of pay system is common with firefighters, for example, whose work weeks are not based on a normal 8 hour work day, five days a week, but rather change from week to week and include long stretches on the job. The Department’s new rule provides that an employer may not use the fluctuating work week method if the employer gives bonuses or premium payment to the workers.
The premium payments often are offered for working unpopular shifts, such as overnight work or on major holidays.
The rule also clarifies certain rules for tipped employees. Many tipped employees, such as wait staff, receive a very low minimum wage with the expectation that the tips will raise the individuals’ pay to at least the federal minimum wage. An employer may pay as little as $2.13 per hour. The regulations make clear that the employer may not use the tip credit unless the employee actually receives the tips used for the tip credit, and the tip credit may not be used where the employer keeps some of the tips.
Posted by marykeating on March 16, 2011 under Collective rights |
It could be that there are not enough of them. No longer an accepted way of life for large swaths of American life, they are under attack even as workers have longer hours and lower pay. Bait and switch? We have noticed, have we not, that the income gap has increased, the stock market it up, but our unemployment rate lingers in the unacceptable zone.
Ironically, the more beleaguered unions become, the less they are able or willing to do for their workers. I hear employees complaint frequently about their union’s ineffective grievance process, or lack of attention to a workplace problem. In survival mode, the union personnel may think that they should keep their heads down, rather than protect the workers. But that is a recipe for obsolescence.
Posted by marykeating on February 10, 2011 under Collective rights |
The National Labor Relations Board settled a widely followed case involving an employee who was fired after she complained about her boss on her facebook account. Company policy prohibited employees from disparaging the company and its employees, or even discussing the company on the web. The NLRB got involved, and sued the company.
The company had denied the worker the right to union representation when her supervisor questioned her. That action led to her disparaging remarks. In a settlement agreement, the company has agreed to alter its rules about employees’ rights to discuss their working conditions with each other, and not to deny union representation during meetings with managers. The employee will not be reinstated.
Although this is a unionized employer, the NLRB’s rules apply to workplaces where there has never been a union. Employers are often surprised to learn that they may not make rules forbidding employees to discuss their wages with each other, for example. The right to collective action exists short of a formal collective bargaining organization. Does it extend to “disparagement” on facebook? In this context, probably: the post apparently complained about the working conditions, that is, the employee’s treatment by the supervisor. The conclusion would be stronger if the worker’s facebook friends included coworkers. If the disparaging comments were personal attacks, however, they probably would not qualify as protected discussions.
Posted by marykeating on January 13, 2011 under Collective rights |
The National Labor Relations Board has proposed to require that employers post a notice that gives their employers some information about their rights to act collectively. The Board notes that many other laws require posting, such as laws on minimum and overtime wages, and anti-discrimination laws. This rule would just add one more poster. Most non-government employers are covered by the National Labor Relations Act.
That’s not to say that the rule is met with delight. One of the reasons cited by the Board for proposing the rule is the perception that many people are unaware of their rights to organize and otherwise to work together. With fewer unions, there is less awareness of the right to create one, and to engage in pre-union activities. Of course, these activities are unpopular with most employers. The Board also hopes that the rule will educate employers who might otherwise violate the National Labor Relations Act, or dissuade them from union-busting activities, knowing that the poster gives employees the phone number and website of the NLRB.
Because the requirement would make posters available from the web, and simply add one more poster to a number of others already required to be posted, it may be difficult for opponents of the rule to find reasonable grounds for objection. The rule is open for comments until February 18, 2011.
Posted by marykeating on August 12, 2010 under Collective rights, Wage and hour issues |
The New York Times reported that the health care industry is the latest industry in the Department of Labor sights. After finding that hospitals and nursing homes are misclassifying workers, and failing to pay overtime correctly, the Department has obtained large settlements against Kaiser Permanente and SSM Health Care, and is pursuing residential care facilities. Two problems are commonplace. One is the classification of an employee as exempt from overtime, when the employee is not properly classified as exempt. The second is failing to pay overtime pay when
employees actually work through unpaid meal breaks.
The automatic deduction of meal breaks has been a problem in many industries. An employee must be fully relieved of work obligations during a lunch or dinner period in order for the employer to mark it as unpaid. Yet many employees in high-paced workplaces are expected to answer the telephone, finish the report, or respond to patient needs during the break. This is especially the case with short meal breaks, which as a practical matter prevents an employee from leaving the worksite.
The Department of Labor is not the only danger for employers engaging in this behavior. Employees, alone or in groups, are empowered to sue their employers, and can receive double the unpaid pay as liquidated damages, as well as attorney’s fees.
Posted by marykeating on September 2, 2009 under Collective rights, Federal wage and hour law, Maryland wage law, Wage and hour issues |
Did you see this, or hear it on NPR? A new study shows that many minimum wage workers are denied wages they have earned. The study surveyed workers in the most populous three cities, New York, Chicago, and Los Angeles. It found frequent, ongoing violations of the wage and hour laws, with the worst offenders in these industries: apparel and textile manufacturing, personal and repair services, and in private households. Illegal practices included paying a wage lower than the minimum wage, forcing workers to work off the clock, and denying overtime pay. Some of these violations are easier to hide when employers pay a flat daily or weekly rate to the employees, no matter how many hours are required.
In addition to the type of industry, the study identified several other factors that linked more strongly with wage violations. Not too surprisingly, the rate of violations are higher for employers paying by cash, as opposed to company check. Smaller employers are also more likely to pay their employees too little. Finally, those companies with a package of benefits were more likely to abide by the wage laws.
The study’s authors concluded that
“Employers that offer health benefits, provide paid time off, and give regular raises are following a business model where investing in workers leads to greater productivity, lower turnover, and other benefits for the company.”
Page 38
What to do about a violation
I have seen an increase in complaints about employers denying an employee’s last paycheck, and keeping poor records, leading to denial of overtime pay. The employer has an obligation to keep records of employee hours worked, and has the burden of proof to disprove an overtime or minimum wage claim. Still, courts have difficulty with the concept that the plaintiff worker should not have to prove his claim, and often that burden of proof is not applied correctly. Employees who witness wage issues should keep a careful daily log of their work hours, and make written complaints when they are not paid.
The Maryland wage and hour division is no longer unstaffed, and will pursue claims against employers. If an employee cannot get satisfaction, contact a lawyer. Although some of these claims are not large, state law permits a court to triple the damages for a failure to pay wages without a legitimate dispute, and allows reasonable attorney’s fees. Also, if there is one violation, chances are good that many employees are being underpaid, increasing the chances that a lawyer will take the case. The Fair Labor Standards Act also permits court access to enforce wage and overtime claims.
Posted by marykeating on August 19, 2009 under Collective rights, Wage and hour issues |
President Obama may have difficulty distancing his administration’s policies from the past era in national security issues, but not so in the labor agenda. One of the President’s early executive orders (13496, issued on January 30, 2009) required companies doing business with the federal government to notify their employees of their rights under the National Labor Relations Act. The NLRA governs union activities, as well as any collective action among employees even in non-union shops.
The Department of Labor now has proposed a rule to implement the Executive Order. The rule describes the notice that federal contractors must post. The preamble highlights the shift from Bush to Obama leadership:
It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.
The proposed rule also determines that the posting requirement, as well as the requirement to place the wording in all contracts, applies to subcontractors of the federal contractors. . The rule applies to all federal contracts worth more than $100,000. The Department estimates this rule will reach more than 65,000 prime contractors, each of which has an average of three subcontractors. Some of these subcontractors, of course, work on more than one prime subcontractor’s job. The rule does not apply to state and local governments, which are exempt under the National Labor Relations Act.
The posting requirement expresses faith that more information is all employees need to insist on their rights. Anecdotally, I believe there is some truth to this assumption. Employees with wage and hour complaints often state that their employers did not make the required posting regarding minimum wage, or that it was inaccessible to the employees. It is easier to make a claim that an employee is not covered by the law if the law is not described in the lunchroom.
This posting does seem calculated to describe rights and to inspire employees to use them. The list of rights under the NLRA is described as follows:
- Form, join or assist a union.
- Bargain collectively through a duly selected union for a contract with your employer setting your wages, benefits, hours, and other working conditions.
- Discuss your terms and conditions of employment with your co-workers or a union; join other workers in raising work related complaints with your employer, government agencies, or members of the public; and seek and receive help from a union subject to certain limitations.
- Take action with one or more co-workers to improve your working conditions, including attending rallies on non-work time, and leafleting on non-work time in non-work areas.
- Strike and picket, unless your union has agreed to a no-strike clause and subject to certain other limitations. In some circumstances, your employer may permanently replace strikers.
- Choose not to do any of these activities, including joining or remaining a member of a union.
Perhaps even more critical to the goal of disclosing information to employees is the list of illegal activities by employers.
It is illegal for your employer to:
- Prohibit you from soliciting for the union during non-work time or istributing union literature during non-work time, in non-work areas.
- Question you about your union support or activities.
- Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in other activity for mutual aid and protection, or because you choose not to engage in any such activity.
- Threaten to close your workplace if workers choose a union to represent them.
- Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
- Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances, for example, as where doing so might interfere with patient care.
- Spy on or videotape peaceful union activities and gatherings or pretend to do so.
The rule goes on to state:
It is illegal for a union or for the union that represents you in bargaining with your employer to: discriminate or take other adverse action against you based on whether you have joined or support the union.
Comments to this proposed rule are due by September 2, after which the rule will be modified or may go into effect shortly thereafter.
