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 May 9, 2011 under Economic situation, Sex-based discrimination, Uncategorized, Wage and hour issues |
Last week’s Department of Labor study on Women’s Employment During the Recovery provides a framework for understanding how the female workforce is recovering from the recession. The good news: the unemployment rate among women is lower than that of men. Part of that disparity results from the fact that women are more likely to be employed in the public sector. In addition, more women have college educations than do men, though more college educated men are working full time.
Women are underrepresented in some sectors, such as engineering, computer science, and architecture. Some of the areas expected to have the highest growth rates over the next few years, other than health care, still have a distinctly male focus.
The report collects and analyzes a large amount of data, including a dispiriting analysis of the cumulative effects of the wage gap. It then discusses the initiatives designed to give women more opportunities in male-oriented jobs, enforce equal pay laws, and increase workplace flexibility.
Almost two thirds of mothers are in the workforce.
The hurdles that face a truly equal workplace can look too tall to leap over. But we mothers can change the mindsets of the children who will join the companies and institutions, so that they do not expect pay or assignments to be based on gender, family responsibilities, or race.
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 April 13, 2011 under Discrimination in employment, Economic situation, Employment benefit issues, Maryland wage law, Pending legislation |
The Maryland General Assembly closed on April 11 for the year. The Governor signed a few bills of interest to employers and employees yesterday; a few more are expected to be signed shortly.
“An agreement to work for less than the wage required under this subtitle is void.”
I believe this is already implied in the law. Yet, it is helpful to state it outright, since not everyone understands that minimum wage is required.
As of October 1, 2011, Maryland employers may not inquire into the credit of an employee or an applicant for employment. Exceptions include banks, credit unions, investment advisor positions, or any other job in which another law requires a credit report, such as someone needing a security clearance. Another large exception involves an employer pulling a credit report for jobs in which there is a realistic concern about the employee’s access to money. The exceptions are listed, and include management position, access to money or a corporate credit card, or has access to trade secrets.
The most unfortunate compromise is that the enforcement mechanism for violations is limited to filing a written complaint with the Commissioner of Labor and Industry. Still, the knowledge that in most cases an applicant’s credit history is off-limits should help the chances of people with poor credit. The persistent recession has hurt many people financially, and credit ratings have suffered. That does not mean that they would not be ethical, diligent employees.
- Change in disability benefits law. This is an enormous change in disability insurance practice. Effective for policies sold or renewed beginning on October 1, 2011, an insurance company may not reserve sole discretion to itself to interpret the terms of the policy, or to provie standards of review that are inconsistent with the laws of the state.
The law as originally proposed would have made all discretion illegal. That kind of change would have made an enormous difference in fights over coverage, but this is a step in favor of the person who has made a claim for disability coverage.
Posted by marykeating on April 12, 2011 under Sex-based discrimination, Wage and hour issues |
Today is Equal Pay Act Day, celebrating fifty years of the Equal Pay Act.
The Secretary of Labor issued a statement describing the department’s efforts to identify and redress “persistent challenges” to the pay gap between men and women. It remains puzzling. There are more women than men in colleges, a large proportion of women have been working full-time for decades now, and most people seem to agree that paying the same wage for the same job is only fair. In studies correcting for child care leave, statistics still show that women who work just as hard as men are paid less.
A study published in The Atlantic gives examples of industries in which women are underrepresented, underpaid, and focuses on the lack of women at the highest levels. Women make from 64 to 79% of the males’ pay.
One problem in rooting out the problem has been the courts’ reluctance to tackle equal pay issues unless the jobs are completely equivalent. Proving equivalence is impossible in higher level jobs. While one vice-president may have the same organizational chart level, the same number of direct and indirect reports, and the same level of responsibility as another, courts easily embrace the differences, and hold that the jobs are not equal, so a $40,000 pay differential has some basis other than gender. Even in lower level jobs, small differences (including the fact that the woman does more tasks than the man can spell the end of an equal pay challenge.
Gender discrimination hangs on, sometimes below the conscious radar, and sometimes right out in the open. There will be a lot of work to do so that the next Equal Pay Day is a true celebration.
Posted by marykeating on March 24, 2011 under Wage and hour issues, retaliation |
Employment practitioners have been waiting for a long time for the Kasten V. Saint-Gobain Performance Plastics Corporation decision. That case arose under the Fair Labor Standards Act, which governs wages and overtime issues, among other things. Kevin Kasten complained orally, several times, about his company’s practice of putting the time clocks in a place that the employees can’t reach until they have put on the protective gear required for their jobs. Under the law, the employer has to pay them for the time they spend putting on and taking off the gear, but this company did not. After Mr. Kasten’s complaints, he was fired.
The Supreme Court had to resolve the issue whether an oral complaint was enough to invoke anti-retaliation protection. Unlike the laws prohibiting race and sex discrimination, the FLSA uses the word “filed” in connection with a complaint. After reviewing different definitions of filed, the Court turned to the reason for the anti-retaliation protection. Justice Breyer wrote “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act’s help.”
While employers worry that oral complaints present problems of whether the right people get notified, it is important to recognize the effect of a rule that everything has to be in writing. Once employees are trained that they must lodge written complaints, the workplace will get less flexible and friendly. An oral complaint to a supervisor or, as in Mr. Kasten’s case, the company’s ethics hotline, should be enough to alert the company to determine whether it needs to investigate further. Had the company here done that, and realized it had to pay employees differently, it would not have been in the Supreme Court (not to mention all the other courts where other employees may have sued it).
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 January 12, 2011 under Wage and hour issues |
They might have thought they were slaves, but according to a unanimous Supreme Court, they are working full time in a capacity similar to doctors, and must be paid and taxed as employees. This issue was resolved by the Court in the context of whether the hospitals using the residents services must pay social security and medicare taxes (FICA). Although residents are paid, they did not pay FICA taxes, nor have them paid by their hospital employers.
Hospitals have treated residents as students for decades. Resident training is a prerequisite to obtaining board certification allowing a doctor to specialize in a particular field. Although medical residents are still supposed to attend lectures and keep up with some studies, they also work grueling hours in hospitals. An exemption in the federal law governing wages and FICA taxes had allowed them to be classified as students if they work in the university, and regularly attend classes. Instead of a salary, the Mayo Clinic pays them a “stipend,” along with health insurance, malpractice insurance coverage, and vacation time.
The Treasury Department altered its interpretation of the law with respect to medical residents in 2004, leading to the case decided yesterday, Mayo Foundation, et al., v. U.S. (09-837). The new regulation removed the exemption for “students” working more than 40 hours per week for the university, even though the services have an instructional or training component. The Treasury Department “reasonably sought a way to distinguish between workers who study and students who work.”
Posted by marykeating on December 10, 2010 under Wage and hour issues |
Advocates for workers as well as governments worry about the misclassification of employees as independent contractors. A true independent contractor has control over his or her work conditions, provides his own tools, is not subject to close supervision, and often has multiple clients. By classifying an employee as an independent contractor, the employer avoids paying FICA taxes, unemployment contributions, workers compensation premiums, and of course any fringe benefits offered to employees. In addition, they do not have the right to form a union, can’t sue under the anti-discrimination laws, and do not have the enhanced damages awarded in court when wages are withheld.
A new study by the National Employment Law Project reports that port workers are often categorized as independent contractors. This trend not only deprives drivers of the rights mentioned above, but requires them, under the guise of being “independent,” to own or lease their own trucks, pay for gas and insurance, and be paid only by the load. But they are held to exclusive contracts that forbid them from working for any other employer.
Another byproduct of this system is that the truckers make too little to maintain their rigs adequately, so our highways are beset with older and poorly maintained equipment.
The study recommends that the nation’s ports better the situation by making rules requiring the trucking companies to own and maintain their own trucks, and classify their drivers as employees. Many of these drivers will still be exempt from overtime pay under the Motor Carriers Act exemption to overtime, but at least would be able to spend their wages on themselves and their families, instead of their employers’ trucks.
Posted by marykeating on November 29, 2010 under Wage and hour issues |
When the Inner Harbor’s ESPN Zone closed without much advance notice (in the summer, too, when one would think tourism would increase the patronage), 150 workers lost their jobs. They filed a class action suit in federal court to protest the company’s failure to comply with the WARN Act, which requires 60 days’ notice of large-scale layoffs.
A blog post describing the suit, the campaign for a living wage at downtown restaurants and stores whose owners have received taxpayer subsidies, and the experiences of some of the laid-off workers, is here.
