Posted by marykeating on February 3, 2012 under Federal wage and hour law, retaliation | 
The Supreme Court issued a decision last year stating for the first time that a complaint about wages and hours need not be in writing to invoke the protection of the Fair Labor Standards Act. Before that, many courts had determined that only complaints made to the Department of Labor triggered anti-retaliation protection. The Supreme Court’s decision left open the issue whether complaints made only within a company qualified for protection.
The Fourth Circuit returned to this issue last week, and engaged in quite a bit of statutory analysis before concluding that an employee who complained about her supervisor could sue for retaliatory termination. In Minor v. Bostwick Laboratories, an employee asked for a meeting with the company’s head to inform him that her supervisor regularly altered employees’ timesheets to erase overtime hours. A few days later she was terminated, the employer citing her inability to get along with her supervisors.
The Fourth Circuit now allows the suit to go forward. The difficulty with the conclusion comes with the language of the depression-era law, which provides for protection for an employee who “files” a complaint. The Fourth Circuit’s decision makes sense given the purpose of the law. Employee advocates point out that to deprive employees of protection when they complaint internally gives an incentive to employers to fire complainers before they go to the outside agency. On the other hand, to require an employee to complaint externally (as with many whistle-blower type claims) encourages people to make complaints to government agencies whenever they see a potential violation. Employers have a major incentive to avoid problems, if a discussion and investigation could cure the issues before they become a federal case.
Posted by marykeating on December 6, 2011 under Federal wage and hour law, Interesting cases |
The Fair Labor Standards Act has governed the provision of minimum wages and overtime pay since the 1930s. A problematic area remains the “exemptions” to overtime entitlement. One exemption provides that “outside sales” staff need not be paid overtime pay. An employee working in an office on the phones is not exempt. But someone traveling around to make sales or obtaining orders or contracts for services or use of facilities is not entitled to overtime. Perhaps the original idea was that the outside sales people were motivated by their commissions, not the promise of an hourly wage.
Modern life has led to many hybrid type jobs. One is the pharmaceutical sales representatives employed by drug companies to introduce physicians to their products. Sales representatives have urged courts to allow them overtime, on the basis that their work is primarily promotional. The Supreme Court has agreed to address the question: “Whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.” The case is called Christopher v. SmithKline Beecham.
The case comes up in the context of a disagreement between Courts of Appeals. Some agree with the Department of Labor interpretation that pharmaceutical sales representatives are entitled to overtime if they work more than 40 hours in a week. They are not selling to physicians, they are attempting to influence their patterns of prescription. The pharmaceutical industry is also interested in a resolution to this issue.
Posted by marykeating on August 15, 2011 under Federal wage and hour law, retaliation |
The Fourth Circuit just ruled against a claim by an applicant for a job who was rejected because she previously sued a former employer. The Court held that the Fair Labor Standards Act protects current and former employees only, and therefore she had no viable claim of retaliation.
In this case, the plaintiff was offered a job, contingent on passing a drug test and transferring her security clearance. In the security clearance form, she had to list pending cases, which is how the new employer found out about the lawsuit. It withdrew the offer. Because she never started work with the new company, its retaliation was not illegal under the law, according to the decision.
The dissent argued that the definition of the word “employee” was not so free from doubt, and could be stretched to cover the plaintiff, particularly in light of the law’s intent to protect workers. In fact, the law imposes criminal penalties for acts of retaliation. In addition, there is precedent that unpaid trainees qualified as employees.
Employees who experience discrimination and retaliation have many issues to consider before suing their employers. Unfortunately, one of them is whether a new employer will hold that lawsuit against them.
Posted by marykeating on August 13, 2011 under Federal wage and hour law, retaliation |
The Maryland federal district court just ruled on a claim by workers who were fired after making claims that they were not being paid appropriately. (Randolph v. ADT Security Services, Inc.) The employees filed claims with the State of Maryland, which requested backup documentation to support the charges that their employer, ADT Security Services, was not calculating their commissions correctly. The documentation included detailed information about the company’s customers and their security system installations.
Upon learning of the claims filed with the State, the company suspended and then fired the workers, stating that they had violated the terms of the company’s confidentiality policy by disseminating the information outside of the company. They sued for retaliation, and wrongful termination.
The District Court made an important distinction between employees who participate in their own claims of illegal activity, and those who oppose illegal activity, by helping others in their claims. The first group has a higher level of protection from interference. The opinion states: “While protected activity under the opposition clause must be ‘reasonable,’ the Fourth Circuit has specifically refused to apply any reasonableness requirement in the participation clause context.”
Often this distinction comes up in the context of complaints that might be only marginally related to an allegation of race discrimination, for example. There is a fear that any fired employee could recharacterize statements or conduct as protected activity. So if an employee raises an issue about conduct that does not involve him personally, the complaint must be reasonably related to a violation of the law, and the conduct is viewed under a reasonableness standard. Therefore, releasing confidential documents may be unreasonable under the circumstances when the employee releasing the documents is not making a personal complaint.
When the employee is making a complaint about her own situation, however, “reasonableness has no place” in the analysis.
The Court pointed out that permitting employees to be retaliated against for using “confidential” documentation would harm employees with the best cases. Those employees with convincing documentation, if not allowed to use it, would be hamstrung solely by a policy that prevents them from taking documents that are used to establish their pay. The Court pointed out that this could not only lead to abusive policies, but also intrusive investigations by agencies that enforce the discrimination and wage payment laws.
Posted by marykeating on July 4, 2011 under Federal wage and hour law |
Franklin Delano Roosevelt announced his four freedoms almost two centuries after the Declaration of Independence. As with the brave rebels in 1776, the focus on independence came at a critical time in our history. In 1941, he set out an expression of basic human rights applicable to the whole human race:
- Freedom of speech and expression
- Freedom of worship
- Freedom from want
- Freedom from fear
The freedoms are all important, but in the FDR era, many minds remained focused on the freedom from want. Unemployment peaked at almost 25% during the Great Depression. (It fell to under 2% during World War II.) In 1938, FDR proposed and signed into law the Fair Labor Standards Act, imposing minimum wages and overtime pay requirements.
That law has become ingrained in our economy, but it contains some exemptions that create hardships. Late last month the Senate and House introduced bills to limit one of the exemptions. That exemption has relieved employers of the requirement to pay minimum wage to people providing home care or companionship services to disabled, sick or elderly people.
Called the Direct Care Job Quality Improvement Act of 2011, the law would allow the exemption only for occasional, casual work. Your teenage babysitter can still be paid less than minimum wage (if indeed you can find such a person), but not someone who works for a home health agency, someone who does this work for a living, or who works for someone who needs such care more than five hours a week, or more than twelve weeks in a row. (These restrictions are designed to avoid a gaping loophole in which an agency sends different people on different days.)
Congress’s findings of the needs for the new law include the statement of the expanding need for these workers (now serving 10,000,000 people), and the prediction of a serious shortage of workers able and willing, without even minimum wage protection, to take on the work. When one is not in dire want, the other freedoms are glorious parts of our nation’s heritage and hope for the future. But if our home workers can’t live, and we can’t get a worker to help us with daily living requirements, it is hard to focus on the abstractions like the freedom of speech or religion.
Happy Fourth of July.
Posted by marykeating on May 10, 2011 under Federal wage and hour law, Wage and hour issues |
The Department of Labor offers a free application for the IPhone and IPod Touch to enable employees to track their hours.
Under federal wage law, the employer has the obligation to keep good records about the hours worked by employees. Failure to keep good records is a violation of the law, and is supposed to penalize the employer in the event of a dispute over whether an employee has been paid appropriately. In reality, though, poor or falsified records can favor the employer. Although the employer has the burden of proof to show that an employee is exempt from overtime, or was paid for all hours worked, often the employee has no contrary proof. So if the employer claims that the employee took an hour lunch every day, the employee may have no more than his recollection that about three days a week he got no lunch break.
With the new app, an employee can keep daily records of his or her own. The Department is also making paper work calendars available. Other technological versions are being considered.
Posted by marykeating on February 17, 2011 under Federal wage and hour law, Pending legislation |
Did you and your sweetie go out to dinner for Valentine’s Day? Your server may be interested in a new law proposed in the house to increase the minimum wage for tipped employees. As of now, the minimum wage for someone like a waiter is $2.13 per hour. The idea is that with tips, the server’s true compensation is generally higher than the minimum wage applicable to other workers. That’s a nice theory, but it may not always work for people who have to participate in tip pools, or whose employers keep their tips (which they are allowed to do, so long as the employee makes at least the generally applicable minimum wage).
Maryland’s Representative Donna Edwards has introduced H.R. 631, the Working for Adequate Gains for Employment in Services Act, to increase the minimum wage for employees living off tips. The acronym is “WAGES.”
The law would increase the minimum wage to $3.75 beginning 90 days after the law is enacted, then after a year increase it to $5.00 per hour, then mandate that in two years it rises to and remains at 70% of the prevailing minimum wage rate.
The bill has been referred to the Committee on Education and the Workforce.
Posted by marykeating on November 18, 2010 under Federal wage and hour law, Sex-based discrimination, retaliation |
The Senate (which remains Democratic after the election) failed to pass the Paycheck Fairness Act yesterday. While the Senate had the votes to pass the measure, which passed the House 2 years ago, it lacked enough of a majority to invoke cloture, and shut down a Republican filibuster. The Republican argument is that this law would encourage litigation and impose damages on employers. The other side is that if an employer is discriminating against women in wage rates, it should have to answer for the disparity. The Equal Pay Act “has not worked as Congress originally intended,” according to the findings of the bill. Under the bill, employers who enforce secrecy about their employees’ wages could be liable for a retaliation claim. The White House and the Department of Labor issued statements registering their disappointment.
The Republican opposition argues that this law would encourage litigation and impose damages on small employers. Opponents also argue that the wage disparity is explained by “personal choices” (yes! Back to family responsibility discrimination!) that lead women to opt for part-time work more often than men, or take leaves from their career paths.
An interesting article addresses this popular belief, and dispels its logical force with data. After taking into account part-time work, length of employment, and other factors relating to the “mommy track,” the effect of discrimination is still stronger than the laws of supply and demand. One interesting example arises in the field of nursing. Nursing instructors (mostly women) earn less than males college instructors teaching other courses. The disparity is so great that nursing teachers earn less than nurses, therefore it is hard to fill the teaching positions. Hence, the nursing shortage.
Posted by marykeating on November 2, 2010 under Federal wage and hour law, Pending legislation, Sex-based discrimination |
Two authors just issued an analysis for the Congressional Research Service focused on the persistent problem of the inequality of women’s pay. Several decades after a shake up of cultural norms sent legions of women to work, women as a group still make less money than men. Many women see this inequality close to home, in their own workplaces, or their own professions.
Analyzing the root causes requires a look at several factors. The lingering effects of the undervaluing of “women’s work,” such as teaching, and the high value given to work requiring muscle, such as shipping, can contribute to the overall oddities in pay scales. Other theories look at the higher prevalence of men in union jobs, which often command higher wages. Still others focus more on the difference between men and women, as opposed to difference in the jobs, since overall women are more likely to work fewer hours since they still have the bulk of the responsibility for child care and family responsibilities. Comparisons of women with the same education level as men show the men paid far more.
The analysis discusses the existing and some proposed laws to equalize the field. The Equal Pay Act requires men and women doing the same job to be paid the same. The Paycheck Fairness Act, introduced in the Senate, and passed in the House, would expand the reach of the law. With the change in Congress, it may be a dead issue this term.
Posted by marykeating on April 29, 2010 under Federal wage and hour law, Pending legislation |
I’ve discussed misclassification of employees before. The issue comes up when an employer decides to treat a worker as an independent contractor when the person actually qualifies as an employee. The savings to the employer include worker’s compensation premiums, unemployment insurance premiums, the employer share of the social security and medicare taxes, and, often, the cost of fringe benefits. In addition, an employee has protections under various non-discrimination laws which usually do not apply to independent contractors.
Congress now has before it a new version of The Employee Misclassification Prevention Act. It was introduced last week, and is expected to get a favorable hearing.
The law would add enforcement teeth to the Fair Labor Standards Act. One provision adds a presumption that someone receiving money for the performance of work is an employee, unless the employer has maintained records related to the classification and the hours worked and wages paid. In addition, the misclassified employee will be entitled to doubled liquidated damages for that violation. In other words, the amount recoverable by the misclassified employee could be triple the unpaid or underpaid wages, as is the case in state law.
Maryland is targeting specific industries, such as the landscaping industry, believed to have rampant violations. The new federal bill requires the Department of Labor to engage in targeted audites of industries the department finds to have a frequent incidence of misclassification.
