Friday, April 29, 2016

FLSA Fundamentals: Calculating Regular Rate of Pay and Overtime Pay

*In honor of the Fair Labor Standard Act’s 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled “FLSA Fundamentals” which will cover the basics of this important law and end with a discussion of the final changes to the regulation upon their release.*

As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (“FLSA”) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.

Friday, April 22, 2016

You Can't Make This Stuff Up: The Unintended Employment Law Issues with Paying Employees in Meth


*This is the first in a recurring series of “You Can’t Make This Stuff Up” posts.  One fun part of working in the employment law or HR world is getting to track new and interesting employment law developments and navigate situations that sometimes are stranger than fiction. In our “You Can’t Make This Stuff Up” posts, we’ll bring to your attention some of the strange and sometimes unbelievable situations that employers and employees face.*


In recent “stranger than fiction” news, a Mankato employer was raided Thursday by Minnesota drug agents because it allegedly gave its employees an unusual bonus: meth.  While the criminal law implications are obvious, it takes an experienced employment attorney or HR professional to get in the weeds (pun intended) and to note some potential wage and tax issues posed by the unusual method of paying employees with illicit drugs.  Under the federal Fair Labor Standards Act and many state laws, wages must be paid in cash or by a negotiable instrument – not, of course, drugs.  Also, any payment to an employee for services is taxable W-2 income, and it’s a real head scratcher to try to figure out how an employer might accurately value an illicit drug and comply with employee withholding and employer tax obligations.  It also may be just as challenging to figure out how the value of an illicit drug payment might impact overtime pay obligations.  Where a bonus is non-discretionary, it must be included in an employer’s calculation of a non-exempt employee’s regular hourly rate for overtime purposes.

So, let this reported incident serve as a reminder that the FLSA can crop up in unexpected places and that, just in case you ever wondered, you really shouldn't pay employees in the form of an illegal drug! 


Thursday, April 21, 2016

Court Finds Obesity is Not an ADA Disability without an Underlying Condition

Last week, we wrote about employer best practices with respect to responding to possible employee medical issues. A recent case out of the Eighth Circuit showcases one employer’s creative approach to thinking about possible future medical issues.

BNSF Railway Company, based in Nebraska, reportedly has had a policy of not hiring any applicant for a safety sensitive position if the applicant has a Body Mass Index (BMI) of 40 or higher. According to the Centers for Disease Control and Prevention, a person with a BMI of 30 or higher is considered obese.  In the recent Eighth Circuit case, Plaintiff Melvin Morriss alleged that he applied for a machinist position with BNSF and received an offer of employment contingent on a satisfactory medical review. At the time of Morriss’ medical review, he was found to have a BMI of 40.9.  BNSF allegedly revoked Morriss’ conditional job offer pursuant to its BMI policy, notifying Morriss that he was “not currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).”  Morriss sued BNSF for disability discrimination, alleging that his obesity was an actual disability under the federal Americans with Disabilities Act (ADA) and that BNSF also unlawfully regarded him as disabled.

Thursday, April 14, 2016

Employers May Have Responsibilities in Connection with Employees’ Medical Conditions, But They Shouldn’t Play Doctor

A helpful rule of thumb for employers trying to navigate compliance with the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other laws affected by employees’ health or medical conditions, is to leave the diagnosing to doctors. Employers are obligated to provide leave where appropriate, or accommodations when needed, but an employer who tries to determine on their own whether an employee (or an employee’s family member) has a real medical issue, what the cause of that issue is, or what it will take to accommodate that issue, puts itself at higher risk of legal exposure.

Wednesday, April 6, 2016

U.S. Supreme Court holds Expert Evidence Sufficient to Establish Common Questions for Class Action and Collective Action Alleging Unpaid Overtime for Donning and Doffing.

On March 22, 2016, the United States Supreme Court issued an opinion making it clear that employees can establish commonality through the analysis of an expert, and application of his representative sample evidence, for purposes of class certification of state law claims, under Rule 23, and certifying FLSA claims as a collective action, under 29 U.S.C. § 216. Tyson Foods, Inc. v. Bouaphakeo, __ S. Ct. __, No. 14-1146, 2016 WL 1092414 (March 22, 2016).

Friday, April 1, 2016

Eighth Circuit Upholds NLRB Ruling Against Jimmy John's Franchisee


Last week, the Eighth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) ruling that a Jimmy John’s franchisee engaged in unfair labor practices and violated the rights of workers under the National Labor Relations Act (NLRA), after the employees were terminated for staging a public campaign protesting the company's sick leave policy.

Wednesday, March 23, 2016

Hippity, Hoppity, Is the Final White Collar Salary Rule On Its Way?

The highly anticipated final white collar salary exemption rule (“Final Rule”) is one step closer to becoming reality. The proposed rule would raise the minimum weekly salary requirement for the FLSA “white collar” exemption from the current $455 per week amount ($23,660 annually) to $970 per week ($50,440 annually). You can read our earlier post about the proposed rule here.

On Tuesday, March 15, the U.S. Department of Labor sent the Final Rule to the White House Office of Management and Budget (“OMB”) for review, ahead of the expected review and release schedule. The specific provisions of the Final Rule will not be known until the OMB review is completed and the Final Rule is published. The OMB review typically takes between 30 and 60 days. This means that we may see publication of the Final Rule in April or May of this year, with implementation taking place sometime thereafter.