All posts by JoAnn Crane

Massachusetts Court Has Determined that Employees Exempt from Federal Overtime Laws May Not Always Be Exempt from State Law

Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act (FLSA) addresses agriculture employers that encompasses farming and all divisions performed by a farmer along with the duties on a farm or in conjunction to operating a farm.

Federal law states

Virtually all employees engaged in agriculture are covered by the Act in that they produce goods for interstate commerce. There are, however, some exemptions which exempt certain employees from the minimum wage provisions, the overtime pay provisions, or both.

Continue reading Massachusetts Court Has Determined that Employees Exempt from Federal Overtime Laws May Not Always Be Exempt from State Law

NEW LAW: US DOL Increases the Penalties for Violations of Several Laws

It’s that time of the year again …

The Federal Civil Penalties Inflation Adjustment Act of 1990 was amended and is required to annually adjust the civil monetary penalty levels due to inflation ideally no later than January 15 of each year. However due to funding issues the final 2019 ruling was delayed just a bit this year.

But don’t worry, the Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019 regarding the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA) and for Occupation Safety and Health Association (OSHA) is now available.

FLSA
The DOL has established that employers who repeatedly or willfully violate federal minimum wage or overtime requirements under the FLSA will receive a maximum penalty of $2,014; an increase from $1,964. Continue reading NEW LAW: US DOL Increases the Penalties for Violations of Several Laws

Contingent Commissions Agreements Are Not Required to Be Paid Upon Termination Under the Massachusetts Wage Act.

Lukas, a former employee of Unidine Corporation, believed that sales commission was still owed to her after she voluntary resigned with company.

As the Director of Business Development, Lukas was responsible for identifying, cultivating and enlisting new customers.  Some of these job duties allowed her to earn an annual commission. The wording in the contract between Lukas and her employers, stated as long as she is actively employed and in good standing with the company, she shall be eligible to receive a commission or bonus providing he/she is not been terminated.

Following her departure, Lukas sought payment of approximately $197,000.00 in sales commissions for the new service contracts that she claimed she produced while employed at Unidine. Continue reading Contingent Commissions Agreements Are Not Required to Be Paid Upon Termination Under the Massachusetts Wage Act.

NEW CASE: Explaining Compensable Time in California

In a recent case (Sali v. Corona Regional Medical Center), the Ninth Circuit Court of Appeals explained what constituted “compensable working time” in California – helping to clarify a historically “murky” area of California wage and hour law.

In this case, the plaintiffs alleged that their employer’s rounding-time policy resulted in a systematic underpayment of compensable time worked by the RNs. Specifically, they claimed that “the time records are not a reliable indicator of the time RNs actually spent working because the RNs frequently clock-in for work and then perform non-compensable activities; such as waiting in the break room, getting coffee, or chatting with their co-workers, until the start of their scheduled shift.”

The Ninth Circuit recognized that a rounding-time policy is permissible under the California law providing it has been determined; “it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they actually worked.” If the policy remains fair and neutral on average and does not benefit the employer a rounding-time policy is permissible in California.

In this case, the courts did determine two categories for compensable time.

  • the time when an employee is “under the control” of the employer, whether or not the employee is actually engaging in work activities, and
  • the time when an employee “is suffered or permitted to work, whether or not required to do so.”

It was determined that the employer misinterpreted the wording “actually worked” to mean the time employees were engaged in work related activities.

According to the redefined standards, compensable time is when an employee is suffered or permitted to work, whether or not required to do so and anyone under the control of the employer regardless if the employee is actually working.

For example, compensable time is when an employee is working, but is not subject to the employer’s control; such as when an employee works unauthorized overtime.

Another example would be is when the employee is required to stay on the company’s premises while on break or when an employee restricted from their own personal activities.

Take Home for Employers

It is recommended to conduct audits on rounding-time policies on a regular basis to ensure the policy remains neutral. Employers should consider changing policies to a smaller rounding interval system, perhaps to five-minutes to create less time in question or if possible, eliminate rounding-time polices all together.

Just as a reminder, in another recent case (Troester v. Starbucks Corp.) the California Supreme Court had ruled that the federal de minimis doctrine does not apply in California. In short, the Court held that a California employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not escape the obligation to pay employees for that time by invoking the de minimis doctrine.

Does Your Company Website Really Have To Be ADA Compliant?

Is it necessary that your company website offer accessibility for people with disabilities?

In June of 2017, Florida federal District Court Judge Robert Scola found Winn-Dixie liable under The Americans with Disabilities ACT (ADA) Title III regarding Public Accommodations and Commercial Facilities guilty of not making accommodations to their website. The court decided the additional cost of upgrading the website was insignificant and not an undue burden when compared to the cost Winn-Dixie spent on creating the website itself.

It has become a growing trend that private parties are filing federal law suits for unsubstantiated violations. In 2017, there was only 814 federal lawsuits filed and according to UsableNet over 2,200 cases where filed in 2018; that was an increase of 181% from the prior year.

In a letter from Congress to the Attorney General, “The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.”  Congress address the fact that no defined guidance has been establish and law suits of this matter will continue to increase. Continue reading Does Your Company Website Really Have To Be ADA Compliant?

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.