Yesterday’s Advisor pointed out the hidden liabilities when you have a joint employer. Today, minimizing those liabilities, plus an introduction to the book some call “The Wage/Hour Bible.”
First of all, note that usually the employee may choose which of the joint employers to sue for any unpaid wages under the FLSA. However, through contractual provisions—whether in a staffing agency agreement or in other business documents—you may specify which joint employer is responsible for wage and hour compliance.
Although the agreement cannot protect you from being sued, it may provide you with a breach of contract action against the other employer, allowing you to recover any amount of unpaid overtime that you end up having to pay. The contract should also provide that the other employer will reimburse you for defense costs if an employee makes a wage claim.
Though policies prohibiting certain employee practices, for example, working overtime, may be useful in making employees aware of your preferred practices, attempts to shift responsibility for wage and hour compliance to the employee will not be effective.
Example:
Anita, a nursing assistant, worked as a temporary employee for Barton Hospital. Anita was assigned to work for Barton through three different employment agencies, one of which required her to sign a copy of its written policies and procedures. This document specifically prohibited working overtime hours, as they were against Barton’s policy. Before each shift, Anita was required to sign in with her name and the name of her referring agency, and a supervisor later verified the hours Anita worked for each agency.
Despite the policies to the contrary, Anita worked more then 40 hours per week, though she never worked more than 40 hours at the request of any individual agency. Neither the hospital nor the agencies paid Anita overtime. Yet regardless of her knowledge of the policies against temporary employees working overtime, Anita was entitled to compensation for the hours worked. The hospital, found to be a joint employer due to the control it exercised over Anita, was liable for the wages, liquidated damages, and attorneys’ fees.
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Evaluate Now
The most important step is to evaluate your relationships with other employers. Are there employees for whom you might be a joint employer?
If so, establish what your status is. If you believe that you are a joint employer, be sure that there is a system in place to consolidate pay records and calculate (and pay) overtime.
It’s always better to ferret out these situations before the suit, rather than after.
Joint employers, overtime, and a host of picky other issues—wage and hour just won’t be as simple as we want it to be. Let’s face it, comp’s never a picnic, and complying with the Fair Labor Standards Act (FLSA) is one of the most confusing and challenging things comp managers have to do.
Even the most savvy practitioners get tripped up, and the law’s complex requirements can easily land you and your company on the wrong side of a lawsuit or DOL investigation.
Fortunately, there’s help—Wage & Hour Compliance: Practical Solutions for HR provides you with detailed guidance on how to comply with the FLSA and takes you through the most complicated wage & hour issues that HR practitioners encounter.
When you’re faced with a supervisor’s travel time question, an employee’s request for comp time, another executive’s suggestion that more assistant managers be deemed exempt from overtime, you’ll find answers in seconds, from a reputable and reliable source.
Wage and hour lawsuits are expensive—and easily prevented. Here’s how to protect against crippling judgments. Go here for information or to order Wage & Hour Compliance: Practical Solutions for HR
Wage & Hour Compliance: Practical Solutions for HR features:
- Real-world examples of wage & hour challenges, and how to solve them
- Multiple quizzes, so you can see where you need to review more carefully
- An overtime exemption audit checklist, so you never make the wrong call
- State-specific charts, for comparing your multi-state obligations
- Sample policies, easily modified to fit your specific preferences
- A quarterly newsletter, Wage & Hour Compliance Bulletin, to keep you aware of the latest developments in the law, and why they matter to you.
BONUS! Not just a manual. You also get:
- Free CD-ROM containing over 20 forms, policies, checklists, state-by-state comparison charts and more, all so you can point, click and go.
Why are aggressive attorneys so eager to file claims on behalf of employees? Because there’s so much money to be made:
- $4.75 million: Hospital in Thousand Oaks, California settles wage and hour lawsuit over miscalculated overtime pay and failing to compensate workers for missed meal and rest periods.
- $1.15 million: Las Vegas construction company to pay in back wages to 1,060 current and former employees.
- $976,327: New Mexico aerospace company settles with 900 employees who were routinely required to work through lunch breaks without compensation.
- $340,400: New Jersey convenience store to pay back wages and damages for violations of overtime and recordkeeping.
- $84,541: New York physical therapist agrees to pay 22 employees for minimum wage violations
- $30,000: Texas chain of four gas stations to pay their six hourly employees, again for recordkeeping and overtime violations.
Avoid steep fines. Go here for information or to order Wage & Hour Compliance: Practical Solutions for HR.
Buyers’ Benefit: To make sure your Wage & Hour Compliance: Practical Solutions for HR remains current with changing interpretations and court decisions, we monitor courts, Congress, and state legislatures. Each year, we’ll rush you an updated edition and bill on a 30-day review basis. You pay only if you decide to keep the updated edition.
Stay up to date with wage/hour changes. Go here for information or to order Wage & Hour Compliance: Practical Solutions for HR.