The DOL has gotten a few “slapdowns” from the courts recently, but while that may make employers feel a little better, wage and hour problems are still a major threat. The agencies—and the attorneys—are looking at most employers, and, sooner or later, they’ll look at you.
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In her recent presentation at the Advanced Employment Issues Symposium, Attorney Dinita James covered several examples of recent court putdowns of the DOL. James is the partner in charge of the Phoenix office of law firm Gonzalez Saggio & Harlan LLP. Here are her examples:
Outside sales exemption. The DOL said that pharmaceutical sales representatives were not exempt because they didn’t actually make sales (They just got doctors to agree to prescribe the drugs.). The Supreme Court slapped that down, says James.
Tip-pool regulations. The DOL has seen court activity questioning its jurisdiction, with one federal court declaring its position wrong.
Mortgage loan officers. Again, on the issue of whether mortgage loan officers should be exempt, the DOL was criticized for procedural inadequacies.
Donning and doffing. The Supreme Court has heard arguments on the meaning of the term “changing clothes” and whether unions have the right to bargain away the right to be paid for such donning and doffing time.
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Background checks. An early case challenging background checks (EEOC v. Freeman) was dismissed in August 2013. The court tossed the EEOC’s expert evidence, saying:
- “Very sloppy.”
- “Did not isolate the aspect of the hiring process that was allegedly causing disparate impact.”
There was no case without the expert evidence, says James.
In addition, the court said that background checks were a “rational and legitimate component of the hiring process.”
Unfortunately, the fact that the DOL has been slapped down a few times in court doesn’t mean that employers can relax their guards. DOL is cracking down on misclassification and other wage and hour problems like never before.
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.
To stay a step ahead of the feds, you need a go-to resource, and our editors recommend the “everything-HR-in-one website, HR.BLR.com®. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
- Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
- E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
- Solicitation. In line with our general policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
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