Strategic HR Lawyer

The Health Care reform legislation everyone has been talking about has a provision which affects the rights of nursing mothers.  While we have related legislation in New York, the federal Wage and Hour Division has recently issued a FACT SHEET with its interpretation of the new nationwide requirements. Here are the basic requirements:

1. Generally, employers are required to provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time, in a private place other than a bathroom.
2. 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.
3. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.
4. Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk.
5. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.
6. Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

 

Posted By Diane Pfadenhauer In Wage & Hour | Permalink

For those of us in New York State, we have been experiencing an increase in scrutiny by the state concerning the misclassification of employees as independent contractors.  Now the federal government has gotten into the game and made this issue part of its federal budget.  Here are few things that are about to happen:

1. A $20 million raise for the Department of Labor (DOL) - from about $220 million to $240 million. The focus of this money will be to training investigators on misclassification issues.
2. The budget proposal for 2011 includes a $25 million initiative between the DOL and the Treasury Department with a goal of eliminating or reducing opportunities under current law for employers to misclassify workers. It includes hiring 100 new enforcement personnel to target worker misclassification. 
3. Lastly, new legislation under the Taxpayer Responsibility, Accountability and Consistency Act (2009) would make it more difficult for for employers to classify workers as independent contractors for employment tax purposes. It would increase employer penalties.

So for those employers who think that some of their workers are independent contractors, think again.  They probably aren't and the stakes associated with misclassification are only getting higher.

Thanks to fellow Lexbloggers at the Hunton & Williams law firm for bringing this to our attention.

 

 

Posted By Diane Pfadenhauer In Wage & Hour | Permalink

There has been a great deal of speculation about increased government enforcement in the wake of the recession and the new administration in Washington.  Well, now the rubber has hit the road.  Asserting that "employment and labor laws are regularly and systematically violated," the US Department of Labor has begun the process of hiring hundreds of new employees to focus on enforcement of federal labor laws.  According to US Secretary of Labor, Hilda Solis, "Beginning this year and into 2010, I am hiring an additional 250 new wage and hour investigators so we can continue to effectively monitor wage and hour violations. During the first six months of this year, the Department of Labor already has recovered more than $82 million in back wages for nearly 107,000 minimum wage workers."

In addition, the Wall Street Journal reports the following:

• There will be 150 investigators added in the Wage and Hour division to enforce wage rules and child-labor laws.
• 100 staff will be added to ensure contractors on stimulus projects are in compliance with applicable laws, increasing the division's staff by more than one-third.
• The Employee Benefits Security Administration is adding 75 staffers to conduct nearly 600 more criminal and civil investigations.
• The Occupational Safety and Health Administration recently formed a task force to design an enforcement program for severe violators.

Follow this link to: Secretary Solis' Press Release

Follow this link to WSJ's article:  Labor Department to Tighten Scrutiny

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , Wage & Hour | Permalink

Think you're under the radar and too small to be pursued by the U.S. Department of Labor for allegations of wage and hour violations?  Think again.  Long Island Business News reports that the USDOL has commenced a law suit against a Pizzeria on Long Island.  According to the article:

"The suit comes after an investigation by the department’s Wage and Hour Division based in Westbury that discovered that about 24 employees working at the restaurant were required to work more than 40 hours during many weeks without being properly compensated for overtime hours. In addition, many of the workers were not being paid the federal minimum wage and that the Pinellos [owners] did not keep proper records regarding the hours employees worked, their rates of pay or other conditions of their employment."

The suit seeks to order the owners to pay the employees wage and overtime back pay owed, along with an equal amount in liquidated damages.

So even if think you are too small, don't be deluded by the thought that you  have EPLI coverage to protect you.  Many EPLI policies don't cover wage and hour violations.  And for a company this small, this could put them out of business!  Better to do things right in the first place.

Posted By Diane Pfadenhauer In Wage & Hour | Permalink

Don't forget that today the Federal Minimum Wage goes up to $7.25 per hour, from $6.55 per hour!  For most of us here in NY we already have a state minimum wage of $7.15.  But for those employers who pay above the minimum wage, you still need to update your postings!

Posted By Diane Pfadenhauer In Wage & Hour | Permalink

The Second Circuit Court of Appeals ruled recently that an employee who works overtime must be paid for those hours even though he/she may have been prohibited from working overtime.  There are many who already operate consistent with this ruling, so this may not be something new for all of you.  In the case of Chao v. Gotham Registery, an employment agency refused to pay for overtime for temporary nurses unless the overtime was approved in advance by the agency.  Thus, when the employees actually worked overtime without approval, they were not paid for those hours.  The Court held that the company's overtime practices violated the Fair Labor Standards Act.

Moral of the story - if your employees work overtime without permission, pay them and then address the matter as a discipline issue.

Thanks to the Connecticut Employment Law Blog for a comprehensive summary of the case. Posted By Diane Pfadenhauer In Wage & Hour | Permalink

The US Department of Labor Wage and Hour Division reports that is has recovered a record amount in back wages due employees in 2007.  According to an article on BLR.com, the Division collected a record $220,613,703 for 341,624 workers in 2007. Since fiscal year 2000, it has recovered more than $1.25 billion for nearly two million workers and is reportedly focusing on bringing large employers into compliance.
Posted By Diane Pfadenhauer In Wage & Hour | Permalink

January is often the time that states increase their minimum wages.  While the federal minimum wage will increase in July (to $6.55/hour) several states already have minimum wages above the federal level.  To see if your state is one of them (as of January 1, 2008), this page from the Department of Labor will tell you:

Minimum Wage Laws in the States

Check the states where you do business to see if you need to make any adjustments or update your posting (often for free by checking with your particular state for an updated free poster).
Posted By Diane Pfadenhauer In Wage & Hour | Permalink