HR’s challenge: making sure employees are not working off the clock (working too much) while at the same time, making sure that they work when they are getting paid (working too little). And to make it a little tougher, there’s a new sheriff in town, says attorney Bryan D. LeMoine.
And here’s her message:
“I have a message for those employers who break this nation’s labor laws and prey on vulnerable workers: It ends today. I’m here to tell you that your president, your secretary of labor and this department will not allow anyone to be denied his or her rightful pay—especially when so many in our nation are working long, hard and often dangerous hours.”
Secretary of Labor Hilda Solis
April 1, 2010
LeMoine’s remarks came at the recent BLR National Employment Law Update in Las Vegas. He is a partner with McMahon Berger P.C. in St. Louis, Missouri.
Government enforcement is going up, LeMoine says. For example, since taking office, Solis has added 250 new inspectors to the wage and hour division, bringing the total to 949.
The DOL is clear on its message — if you do not pay your employees correctly, they will come after you. And if they do, you’ll face penalties payable to the government and to your employees.
How Do Managers Allow Time Thievery?
When managers and supervisors let discipline slide, time thievery is encouraged, LeMoine says. For example, when managers ignore:
Tardiness and other attendance problems
Prolonged meal and other breaks
Employees’ failure to follow supervisor instructions (Insubordination)
Policy violations
On the other side of the coin, if you let your employees get away with violating work rules that prohibit working off the clock, you are setting your company up for overtime claims, and if you let your employees get away with clocking in and out early and you “fix” it later, you are setting your company up for overtime claims.
Bottom line, manage your employees’ behavior according to your policies consistently, and make sure your supervisors are not letting employees get away with time theft, says LeMoine.
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Stupid Smartphone
Blackberries, iPhones, and other smartphones are one of the biggest threats for working off the clock. The same holds true for electronic access to e-mail from their home. If employees are doing more than de minimus work this way, they are probably “working” and need to be paid. Question, says LeMoine:
Why are you giving a smartphone to a non-exempt employee?
Why are you teaching non-exempt employees how to access their e-mails through their phones?
Make sure you have a policy prohibiting off-the-clock work, LeMoine adds.
Oops … I Kind of Forgot to Pay You
Then there’s the situation where it’s the employer looking like the thief. This is not a good situation, LeMoine says, tongue in cheek. And the required action is simple—pay up.
There is a safe harbor that will retain the exemption, he says. If an employer has a clearly communicated policy that prohibits improper pay deductions and includes a complaint mechanism, reimburses employees for any improper deductions and makes a good faith commitment to comply in the future, such employer will not lose the exemption for any employees unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints.
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Following the safe harbor rules may also help to avoid a finding of willfulness, especially if well-documented.
However, the safe harbor doesn’t bar a suit or DOL investigation, LeMoine adds.
The best evidence of a clearly communicated policy is a written policy that was distributed to employees prior to the improper pay deductions, by for example, providing a copy of the policy to employees at the time of hire, publishing the policy in an employee handbook or publishing the policy on the employer’s Intranet, says LeMoine.
In tomorrow’s Advisor, Lemoine on the “defense lawyer’s pipe dream,” and an introduction to an extraordinary 10-minute training system.