In yesterday’s Advisor, attorney Brian LeMoine helped with preventing time thievery; today, his take on defending against lawsuits, and an introduction to a special 10-minute-at-a-time training system that will help prevent those lawsuits.
Defense lawyers are suggesting they should be able to use the Faragher/Ellerth defense in FLSA cases, LeMoine says. Faragher/Ellerth is typically applied to sex discrimination or harassment cases. In that context, in certain circumstances, if you can show that you had a clearly communicated policy, a usable mechanism for complaints, took action when knew of the problem, you may escape liability.
To apply this in the wage and hour arena, the thought is that you would claim that you:
- Clearly communicated your policy prohibiting improper pay deductions or failure to pay for hours worked
- Had a mechanism for employee complaints
- Reimbursed as necessary after finding the problem
- Have in place good faith measures to ensure compliance
Your clearly communicated policy should state:
- Off the clock work is prohibited
- Violations could lead to severe discipline
- No one may instruct an employee to work off the clock
- Violations must be reported immediately
Your efforts to prevent off-the-clock work are key to any defense you raise, LeMoine says.
He suggest the following:
- Give the policy to everyone and make everyone acknowledges the policy
- Make sure the policy specifically address wage and hour issues
- Regularly ensure that those reviewing timecards are looking for potential problems
- Don’t ignore complaints
- Document, document, document
- Take prompt remedial action if appropriate
- Pay back wages if owed
Make Your Employees Certify Their Time Records
It’s very important, LeMoine says, that employees review and sign off on the accuracy of their time cards. In addition:
- Make sure that you have a reporting mechanism for errors on time cards, and follow up on errors when they are discovered.
- Require employees to report problems with paychecks within a certain period of time.
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The Dreaded “Audit”
To be sure that you are ready in the event of an audit by outsiders, audit yourself or hire a professional to perform an audit for you, says LeMoine.
Don’t make the audit subject to the attorney-client privilege, he says. Make sure that the audit is discoverable. It helps with your good faith defense. However, LeMoine adds, you must be prepared to do something about the audit results if necessary and do it right away.
Enforce Your Policy
Discipline your managers and employees for policy violations, says leMoine. Managers who are not enforcing your policies are stealing from you.
Suit May Be Worth It
The price you pay for making managers and employees focus on wage and hour issues is awareness, LeMoine says. That is, they may become aware of problems and that could result in a suit or investigation by the DOL.
However, he says, that "Might be worth it … it’s better to fix your problems now than later."
Wage/hour training is important, but it’s one of, what, a couple dozen things your people need training on? Training is critical, but it’s also demanding. To train effectively, you need a program that’s easy for you to deliver and that requires little time from busy schedules. Also, if you’re like most companies in these tight budget days, you need a program that’s reasonable in cost.
We asked our editors what they recommend for training supervisors in a minimum amount of time with maximum effect. They came back with BLR’s unique 10-Minute HR Trainer.
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Trains in 50 key HR topics under all major employment laws, including manager and supervisor responsibilities, and how to legally carry out managerial actions from hiring to termination. (See a complete list of topics below.)
Uses the same teaching sequence master teachers use. Every training unit includes an overview, bullet points on key lessons, a quiz, and a handout to reinforce the lesson later.
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Updated continually. As laws change, your training needs do as well. 10-Minute HR Trainer provides new lessons and updated information every 90 days, along with a monthly Training Forum newsletter, for as long as you are in the program.
Works fast. Each session is so focused that there’s not a second’s waste of time. Your managers are in and out almost before they can look at the clock, yet they remember small details even months later.
Evaluate It at No Cost for 30 Days
We’ve arranged to make 10-Minute HR Trainer available to our readers for a 30-day, in-office, no-cost trial. Review it at your own pace and try some lessons with your colleagues. If it’s not for you, return it at our expense. Click here and we’ll set you up with 10-Minute HR Trainer.
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