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The Wage Hour Division of the Department of Labor is getting a bit more aggressive.  Among other things, DOL has hired a bunch of new investigators and implemented a program they call “Plan, Prevent and Protect”  (http://negotiumlex.wnj.com/?p=250) and another program the DOL calls “We Can Help” (http://negotiumlex.wnj.com/?p=234).

The New York Times did an interesting article on an initial step in the WHD’s more aggressive stance.  Seems the WHD is, according to the Times, targeting hospitals and nursing homes looking for Fair Labor Standards Act violations.  See http://www.nytimes.com/2010/08/10/health/policy/10health.html?_r=1.

According to the Times, hospitals in particular are being singled out for misclassifying employees as supervisors and for failing to pay employees who work overtime or through their meal periods. We will leave the misclassification issue for another day, but let’s take a second and talk about those meal periods.

The regulations implementing the FLSA state:

(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. 29 CFR § 785.19

So generally speaking, if you don’t want to pay your non-exempt employees for lunch, the meal break has to be at least 30 minutes long and the employee has to be completely relieved of all duties.  That’s got to be hard to do for some employees, and I imagine nurses are among the most difficult to deal with.  How do you handle this if you are a manager?  Here is what you can’t do: you can’t tell the employee to not work during meal breaks and then refuse to pay them when they do. 29 CFR § 785.13 says: “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

That means that as a manager you need to make sure that the employee has uninterrupted time to eat lunch or you have to pay your employees when they work during lunch.  How do you make sure that an employee has uninterrupted time to eat?  You can start by not letting employees eat at their work station.  Send them to the break room.  And make sure employees know that when an emergency does arise and they have to work during lunch that they account for that time so they are properly paid.  In the long run, that is a lot less expensive for you than paying the liquidated damages and attorney fees that come with a wage hour suit.

A while back I wrote a post about the break time provisions for expressing breast milk in the new health care bill.  You can see that post at http://negotiumlex.wnj.com/?p=227  Friday the Department of Labor published its Fact Sheet #73, outlining “general information on the break time requirement for nursing mothers . .  . . “  According to the Fact Sheet, “Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.  The frequency of breaks needed to express milk as well as the duration of each break will likely vary.”  Breaks must be provided for up to 1 year after the birth of the child.  The Fact Sheet goes on to state that the employee is entitled to a room to express milk that is “functional as a space for expressing breast milk.”  A bathroom, even if private, is not, according to the Fact Sheet, a permissible location under the Act.   In addition, if the space is not dedicated for use to express milk, the space must be “available when needed” to meet the requirements of the Act. 

The requirement to provide break time only applies to non-exempt employees and the employee does not have to be paid for her time spent expressing as long as she is completely free from duty while expressing.  But if the employee uses her normal paid break time as time to express milk (say for example you give all non-exempt employees 2 ten minute paid breaks, one in the morning and one in the afternoon) then the time spent expressing milk must be paid like it is for every one else.  If you have less than 50 employees, you don’t have to provide breaks if doing so would cause you an undue hardship.  For purposes of this statute, undue hardship means “looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure” of that employer’s business.

Before we leave, yes, the Fact Sheet says that the requirement to provide breaks only applies to “employees who are not exempt from the FLSA’s overtime pay requirements . . . .”  But in my opinion, denying an exempt employee time to express breast milk isn’t a very good idea.

Finally, if you work in a state that provides more rights to employees, the state law will still apply.

You can see the fact sheet at http://www.dol.gov/whd/regs/compliance/whdfs73.htm  If you have any questions you can find my contact information at http://www.wnj.com/steve_palazzolo/

A short time ago the Senate voted 63-37 in favor or confirming Elena Kagan as a Justice of the United States Supreme Court.  Ms. Kagan when sworn in will replace outgoing Justice John Paul Stevens. 5 Republicans, 56 Democrats and 2 Independent Senators voted in favor of Ms. Kagan’s nomination.  Ms. Kagan is not likely to change the ideological make-up of the court when it comes to employment matters.  Justice Stevens was considered a liberal jurist and Ms. Kagan is likely to be the same.  A couple of interesting side bars, this is of course the first time in the history of the Court that three sitting Justices are women and for the first time in the history of the Court, there is no Justice who identifies him or herself as a Protestant on the Court.  You can read more about the Senate vote on  Ms. Kagan at the New York Times:  http://www.nytimes.com/2010/08/06/us/politics/06kagan.html?_r=1&hp and more about the history and demographics of the Court at http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

The President spoke to the Executive Council Meeting of the AFL-CIO today.  The speech was what one would expect when the President talks to a room full of union representatives.  He said things like, we have made progress but we still have a long way to go.   The President stated that he intended to build an “Economy that works for everybody not just a privileged few.”  In the middle of the speech and somewhat in passing, the President stated that he intended to continue to “fight to pass the Employee Free Choice Act.”  And in answer to the one question that the President took, the President quoted FDR saying “If I was a worker in a factory and I wanted to improve my life, I would join a union.”  In short the President reaffirmed to the very sympathetic crowd that he intended to continue to use his executive powers to do such things as appoint members of Administrative Agencies like the NLRB and implement executive orders, and his influence with Congress to promote a pro labor agenda.   

I’m not a reporter so I am not going to try to report exactly what the President said.  If you would like, you can read the text of his speech at http://www.fednews.com/transcript.htm?id=20100804t3187&SLID=051122fb90f8413a2a605b589a21a098     In the mean time, we will keep an eye on the EFCA.

Did you know that today is the 20^th Anniversary of the signing of the Americans with Disabilities Act? It is. On July 26, 1990 President George H. W. Bush (that is the first President Bush for those of you like me who are a bit date-challenged) signed the largely bi-partisan supported bill into law. When the President signed the bill he “borrowed” from President Reagan’s Berlin Wall speech from a few years earlier, Bush said, ”Let the shameful wall of exclusion finally come tumbling down.” http://www.cnn.com/2010/LIVING/07/26/ada.history/ So, to celebrate the anniversary of the ADA, you can find a ton of news articles and most of them seem to have a couple of things in common: first, they focus mostly on the public accommodation part of the ADA, you know, things like curb cuts and Braille in elevators, not the employment part of the ADA that we deal with every day; and second, they seem to say we have come a long way, and we have a long way to go.  Of course, we are going to talk about the employment part of the law, the part enforced by the EEOC.

In its statement “The Americans With Disabilities Act 20^th Anniversary” the EEOC says there is a “growing need” for the ADA and points to charge statistics to prove it:  :

• 1993: 15,274 charges of discrimination filed with EEOC, which obtained $15,496,811 in relief for 1,851 people though its administrative process;
• 2009: 21,451 charges of discrimination filed, roughly a 30% increase. EEOC got $67,826,112 in relief for 3,238 people;
• From 1993 to 2009, ADA charges rose from 17.4% of all charges filed with the EEOC to 23% of all charges filed as ADA charges became a greater part of the EEOC’s workload;
• During the same period, the EEOC filed 874 lawsuits claiming violations of the ADA, collecting a total of $86,633,804 for victims of disability discrimination.

See http://www.eeoc.gov/eeoc/history/45th/ada20/index.cfm

You know what struck me the most about this? Take a look at the first 2 bullet points: 1993, 15,274 charges only 1,851 people got money. 2009, 21,451 charges and relief for 3,283 people. Now if my math is right (and it may not be, I went to Law School to avoid math), that means in 2009 (we’ll just stick with 2009), 18,168 charges were filed and the people filling them got no relief! That means that 84% of the charges were . . . what?  Frivolous?  So let me ask you this. Does that mean the employer’s didn’t have to spend time and effort responding to those charges? Did they get any monetary relief from the people who frivolously filed them? Nope and Nope. And things won’t get any better with the ADAAA.  Is that really a “growing need” for the ADA and the expanding definition of who is and who is not really disabled?

Now before you get the wrong idea, I am a full fledged 100% supporter of the ADA.  Those of you that have read any of my stuff know why. What I am not a supporter of is people who are not disabled trying to take advantage of a law designed to help people who are. Nor am I a supporter of a government agency making it easier for them to do that. All that does is cost business money and makes it harder for the people who really are disabled to get the protections the law affords.  Now I will be the first to admit that I may be interpreting these EEOC statistics wrong, . . . but I don’t think so.

So, Happy Anniversary.

So things seem to be picking up a little in the economy?  At least that is what we keep reading and hearing.  What is pretty clear is that employers are very reluctant to start hiring again.  Productivity, sales, and profits might be rising, but employment isn’t.  Instead, it looks like employers are filling staffing needs with temps and independent contractors.  But before you go off and retain a bunch of independent contractors, be sure you know what you are getting into.

Last year, the IRS announced that it would audit 6,000 companies to determine if they were misclassifying employees as independent contractors.  see http://www.bloomberg.com/apps/news?pid=newsarchive&sid=anpR2t09GIeU  This came on the heals of a 74-page GAO report on employee misclassification.

So why does the IRS care?  Because there is money (or overhead) in hiring independent contractors.  Lots of money.  Companies that hire real independent contractors don’t withhold taxes for them, withhold social security, pay benefits, or pay other expenses like unemployment and workers’ compensation premiums or pay the company’s normal share of these same taxes.  The GAO report estimated that for 1984, the last year any statistics were compiled on misclassification, the federal government lost about “$1.6 Billion (in 1984 dollars)” in tax revenue. 

States don’t like employee misclassification either.  According to the Bureau of National Affairs, Daily Labor Report, FedEx Ground Package System Inc. has just agreed to pay the Commonwealth of Massachusetts over “$3 million” to settle a misclassification suit involving drivers.  According to BNA, the settlement pays $1.3 million for state taxes, $689,000 for workers’ comp., $442,000 for unemployment, and the balance for an educational fund and into the commonwealth’s general fund.

So, how do you know who should be an employee and who should be an independent contractor?  You have to look at least three places.  Lets start with  the IRS.  At http://www.irs.gov/businesses/small/article/0,,id=99921,00.html you can find what the IRS considers important when determining if a worker is an employee or an independent contractor.  The IRS looks at three primary areas:  First, what they call “behavioral control”–things like who decides when and where the work is done, who supplies the tools, and how the work is sequenced.  The more detailed the instructions on how to accomplish the task, the more likely you have an employee.  Second, what they call “financial control,”–things like can the worker lose money on the job, can the worker sell his or her services to others in the market, and does the worker need to make a significant investment.  Again, the more risk the company takes on, like paying by the hour rather than the job, the more likely it is you have an employee.   Finally, the IRS looks at the “type of relationship.”  Is there a written contract, does the worker get benefits from the company, and how permanent is the relationship.  The more permanent, the more likely you have an employee.

Next, you need to see what the Department of Labor has to say about employee misclassification.  The DOL enforces the Fair Labor Standards Act, and they care about misclassification because they want workers to get at least the minimum wage and overtime.  In Fact Sheet #13 (available at http://www.dol.gov/whd/fact-sheets-index.htm), the DOL, relying on decisions by the Supreme Court, looks at whether the work is an “integral part of the principal’s business,” the “permanency of the relationship,” the worker’s “investment,” and the company’s “control” over how the work is performed, among other things. 

Finally, you need to look and see if your state has any rules.  Some have very strict and complex rules and some don’t have any at all (so you will just follow the federal rules).

Misclassifying employees can be an expensive proposition.  Not only can you be liable for the taxes that you should have paid, you can also be liable for the employee portion of any taxes, penalties (like the IRS’ 100% penalty), interest, fees, and unpaid benefits.  So be careful how you classify your workers.

Sorry, bad joke, but as you all know by now, in 2008 the people of the state of Michigan, in voter referendum, passed the Michigan Medical Marihuana Act. See MCL 333.26421 et. seq. (Ok before you say anything about the spelling, I did not spell marijuana that way, the state did.)  The Act, among other things, provides for the use of medical marihuana under state law and “provide[s] protections for the medical use of marihuana” when recommended by a physician for “debilitating medical conditions.”  Section 4 of the Act specifically states:  “Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana . . . .” 

Seems pretty clear. You can’t fire someone for using medical marihuana, end of story, right? Not so fast my friends. You see, section 7 of the Act states:  ” (c) Nothing in this act shall be construed to require: . . . (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”

Are we all completely confused now?  A business can’t take disciplinary action against an employee validly using medical marihuana, but an employer does not have to allow an employee to work under the influence?  How can that be?

Well, we may just find out. A couple of weeks ago, a young man named Joseph Casias, with the help of the American Civil Liberties Union, filed suit against Wal-Mart alleging that he was discharged in violation of the Act and in violation of Michigan public policy. Mr. Casias alleges in his complaint that he has cancer that causes him extreme pain, that in consultation with his doctor he sought and was given a medical marihuana registry identification card and that he was in full compliance with the Act. Mr. Casias alleges that he only used marihuana once per day at home and never performed any work for Wal-Mart under the influence of marihuana. Unfortunately, Mr. Casias hurt his knee at work.  When Wal-Mart took him to the emergency room he was given a drug test. And of course, the drug test showed that Mr. Casias used marihuana. 

Now Mr. Casias alleges that he told the testing facility that he was a medical marihuana user and even showed them his card. He also alleges that he told his shift supervisor that he was a medical marihuana user and showed him the card and was told not to worry about it, he was not in trouble.  Then, Mr. Casias alleges, two weeks after the injury,  he was fired by the store manager. Mr. Casias claims he was told that Wal-Mart “does not honor” his registry identification card. In his complaint, Mr. Casias alleges that the knee injury that was the cause of the drug test was not a result of his use of marihuana and that he never worked under the influence of the drug.

I don’t know how this case will come out, and we are not likely to know for some time. There will be a trial, and then probably an appeal. But hopefully, now, finally, we will get some clarity about exactly how this law is supposed to work.

Well, that didn’t take long.  In the first week of April this year, President Obama made two recess appointments to the National Labor Relations Board.  Craig Becker is the former general counsel of the SEIU, the nation’s biggest union, and Mark Pearce is a former founding partner of a prominent Buffalo New York union side labor and employment law firm.  The final opening on the Board remains unfilled, so that means with Chairperson Wilma Liebman there are three Democratic appointees on the Board with Peter Schaumber the only Republican appointee left.  So what you say? There is a Democrat in the White House, there is going to be a Democratic Board.  That’s right, there is, that’s the way it works.  And we can expect many of the decisions handed down by the Board during the Bush Administration to be reversed and that is not even considering the literally hundreds of rulings that have been voided by the Supreme Court with its decision in New Process Steel v. NLRB, which held that the Board had no authority to act when it had only two sitting members.

So what am I talking about?  Well my friends, let me tell you what I am talking about.  Not about some new case that reverses a decision from the Bush Board, that reversed a case from the Clinton Board, that reversed a decision from the first Bush Board, and so on and so on . . . I’m talking about the Board trying to do what Congress has been unable to do.  Give unions the benefits of the EMPLOYEE FREE CHOICE ACT without Congress having to do the dirty work and actually pass the act. 

How can this be?  The Board does not have that kind of authority, right?  Well, sort of, you see, the Board can’t just go ahead and put say . . . card check or say . . . mandatory arbitration of the first contract into place, the law as it is currently written does not allow that.  But it can . . . through rule making . . . give unions a much better shot at winning elections.  How?  Well, by shortening the time between a petition and an election.  Or maybe by prohibiting certain kinds of communication by employers in campaigns.  Or maybe by letting unions exert pressure on voters at the polling places.  And Thursday last, the Board may just have taken the first step.

According to the Wall Street Journal at WNJ.com, “The National Labor Relations Board is exploring electronic-voting methods for unionization elections, which employer advocates fear could be used to circumvent the current secret-ballot process and favor unions.”

You can see the Journal article at http://online.wsj.com/article/SB10001424052748703685404575306992906763792.html?mod=googlenews_wsj

So what, you say again, how does this help unions?  A couple of ways if you ask me.  Of course you asked, me, you are reading this blog!  First, it allows the Board to shorten the time between the petition and the election.  This helps unions in one very big way, it lets them talk to your employees for as long as they want about how great unions are before they file the petition, but limits the time you can talk back.  The union controls when it wants to file the petition, not the employer.  Shortening the time between the petition and the election puts the communications cards in the unions’ hands in an unfair way.

Second, and more importantly, electronic voting, which is a precursor to internet voting, could allow the election site to be contaminated by union electioneering.  Under the current system, the union and the employer can’t continue to campaign at the election site.  They have to let the employees vote without having one last person get in their ears.  Despite Chairperson Liebman’s request that proposals for electronic voting ensure that  ”that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion”  nothing is going to prevent the union from “helping” the employees to vote.  One lawyer in the WSJ article even suggests unions might vote as a group to show their “solidarity.”

So, is this going to happen?  Don’t know, but I’m not surprised.

That’s an odd thing to write, wouldn’t you agree? After all, a big part of what I do is write and if people don’t believe what I write, then I’m in a bit of trouble. Anyway, I was surfing some “social networking” sites today (I’m not going to tell you which one, but it was a primarily business-related site that lets people make connections with others and form groups) and I ran across a link that took me to an article that made me think of this little saying. I don’t know whose quote this is, but my mom tells me, over and over again, (you’ve got a mom so you know what I’m talking about when I say over and over again, right?) that this saying is something my grandfather often said. (I was pretty young when my grandfather passed away so I didn’t get the benefit of his wisdom, so I’m just going to have to take my mom’s word for it.) Anyway, she claims my grandfather used to say: “Don’t believe anything you read and only half of what you see.”  Makes you think that my grandfather grew up reading today’s papers doesn’t it?  But no, my grandfather was born in 1896.

Back to the point. I was surfing through some groups on this social networking site and came across a “discussion” in an HR group and that discussion linked to a blog that is supposedly aimed at those over 40 looking for a job. This particular blog post dealt with “age discrimination” and it asked what do you do if you are in an interview and someone asks you how old you are? The author said your normal response would be to say that the question is illegal and then he wrote “AND YOU WOULD BE WRONG.” 

That’s when I stopped reading. Could this dude seriously be telling us that it is okay for you to ask someone how old they are in a job interview? That’s the way I read it.  And if I’m right, well you know what’s next, he is WRONG!!!!!

Now let’s guess who is really wrong, Me, or the guy who wrote the post in the HR group (ok, I know you know the answer to this question to, don’t you?). It was that dude, not me who is wrong, I’m never wrong (well, almost never). You don’t believe me? Let’s look at the Michigan Pre-Employment Inquiry Guide. Under the subject “Age” and the heading “Unlawful Pre-Employment Inquiries” the guide says “Applicant’s age or date of birth.”  So, just in case you didn’t already know this or you also happened to read the same blog I did, YOU CAN’T ASK SOMEONE HOW OLD THEY ARE IN A JOB INTERVIEW!!!!!

I know, I know, that information is written too, so why should I believe that? How about because the people at the MDCR, the ones fielding the complaints filed by applicants who are being asked how old they are, will believe it. 

looks like my grandfather was right after all.

I have loved baseball my entire life and still do. When I was a little kid we didn’t have 500 TV channels.  So if you wanted to hear the game, and I mean hear the game, not see the game, you couldn’t see the game, it wasn’t on TV, you listened on the radio.  Some little transistor thing with a big antenna that pulled out of the top.  I’m a Tigers Fan, and if you were a Tigers fan, when you listened to the game on the radio, the voice you heard was Ernie Harwell’s.

I remember like it was yesterday.  A hot summer night with a breeze blowing in my window.   The Tigers are on a west coast road trip.  I’m in bed, because I couldn’t stay up that late.  So I tucked that transistor radio under my pillow with the volume just loud enough so I could hear Ernie call the game but not loud enough for my mom to hear.  Ernie with that smooth delivery and all the catch phrases.  I feel asleep on a lot of summer nights listening to:  “He’s called out for excessive window shopping” or “He stood there like the house on the side of the road.” 

Ernie seemed to know everyone at Tiger stadium.  I was always amazed that whenever a ball was fouled off into the stands Ernie seemed to know where the guy who caught it was from.  “And that one was grabbed by a gentleman from Wixom.”

There have been a lot of great baseball announcers over the years, but for me, the voice of the game has always been Ernie’s.

So long Ernie, and Thanks for everything.