Category: Salary Exemptions

2019 Labor and Employment Law Predictions

Published by Brett Holubeck on January 4, 2019

2018 was a whirlwind year for labor and employment. There were 3 major Supreme Court decisions. One decision concerned overtime exemptions to the Fair Labor Standard Act where the court found that the exemptions should be interpreted broadly rather than narrowly. The Janus decision held that public sector employees could not be forced to pay an agency fee (public sector employees do not need to pay anything to a union that represents them). Finally, the Court found in the Epic Systems case that employers can require employees to settle employment disputes through arbitration agreements without violating the National Labor Relations Act.

While not as many changes will occur this year in labor and employment, there are still a number of exciting changes that could occur. Here are 10 labor and employment law predictions that I believe will happen next year.

Sexual Harassment Lawsuits Will Increase

The #Metoo movement is not going away in 2018. The preliminary data from the EEOC showed that charges alleging sexual harassment increased by more than 12% from 2017 into 2018. Unfortunately, this is an issue that is not going away. My prediction is that there will be more of these charges and lawsuits going into this year.

There will also be several states that will enact new laws to combat sexual harassment this year. California already has new requirements that just went into effect.

Starting in 2019, employers with five or more employees must provide two hours of training to supervisors and one hour to all other employees within six months of their hire (or promotion to supervisor) and every two years thereafter. Temporary and seasonal employees must be trained within their first 30 days or 100 hours, whichever comes first.

No company wants to be thought of as the company that allowed sexual harassment. Just look at what happened to Mike Isabella, a former Top Chef star, and his restaurants:

But in a Chapter 7 filing on Tuesday, which seeks to operate six restaurants through Dec. 27 before closing them permanently, Isabella argues that the local and national media relentlessly threw shade on his business operations even after he agreed to a confidential settlement in May with former Isabella Eatery manager, Chloe Caras, who sued for “extraordinary sexual harassment.” Isabella, documents note, apologized publicly to a local TV reporter and implemented new “zero tolerance” sexual harassment policies at all of his restaurants. He was ready to “restore confidence in Mike Isabella and his restaurants.”

Isabella lost his restaurants after he was accused of sexual harassment. Now, the accusations against him were very serious and he was the owner of the restaurant and was the one accused of sexual harassment. However, this can happen to any business and can be caused by employees at any level of the business. The issue of sexual harassment in the workplace is not going away. There will be more lawsuits, and charges regarding sexual harassment in 2019 than there were in 2018.

The Supreme Court Will Take a Case to Decide Whether Sexual Orientation is Protected under Title VII

The Supreme Court is considering taking a case to determine whether Title VII protects employees from discrimination based on their sexual orientation. The issue hinges on whether “Because of … sex” includes sexual orientation or is limited to a person’s sex.

Currently there is a split among the Circuit Courts. The 2nd and 7th Circuit have found that Title VII prohibits sexual orientation-based discrimination and the 11th Circuit has found that sexual orientation is not protected under Title VII.

The Supreme Court will grant the writ of certiorari and they will review the case. If the Supreme Court decides to review the issue, then it will be one of the most important cases that the Court considers next term.

The Department of Labor Will Increase the Salary Threshold for the Overtime Rule

The Department of Labor is still undergoing rulemaking to raise the salary threshold that is required to meet the overtime exemption, which allows companies to pay workers a salary and not have to pay employees overtime regardless of the number of hours that they work in a week. Currently, an employee must be paid at least $455 per week (which equals $23,660 annually) to meet the salary threshold. In 2016, the Obama administration raised the salary threshold to $913 a week (or $47,476 a year). A federal district judge eventually blocked that rule and questioned the DOL’s ability to set any salary requirement to be exempt from overtime.

The DOL will attempt to raise the threshold to around $33,000 this year probably in March. The new salary threshold will be challenged again to determine whether the DOL even has the authority to set a salary threshold.

Paid Family Leave is Coming

As I said in a prior post, paid family leave is coming. This is a question of when and not if. I believe that it will be implemented either this year or next year. Here is what I said in my earlier post.

Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.

The National Labor Relations Board Will Issue a Joint Employer Standard

In September, the NLRB had issued a notice of proposed rulemaking to change the joint employer standard. The joint employer standard is important to determine whether companies are liable for violations of the law that are committed by staffing companies or franchises. For example, McDonalds has been combating a charge that it is a joint employer with its franchisees and is responsible for these small business owners firing employees that wanted higher wages.

Here is the release from the NLRB with the proposed rule:

Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Unfortunately for the NLRB, the DC Circuit Court recently found that:

the question of whether there is a joint employment relationship under the National Labor Relations Act (NLRA) must be answered by applying the common law test for whether there exists an “agency” relationship. The Board has no special expertise relevant to defining the common law of agency. Therefore, according to the Court of Appeals, the Board is awarded no deference in this area. In other words, the Board does not have the right to define or redefine joint employment in a way that would be inconsistent with the common law meaning of “agency.”’

My prediction is that the NLRB moves forward with its rulemaking and ignores the decision of the DC Circuit. This will have a big impact on employers that use staffing companies because they will not (generally) be liable for violations that the staffing company commits against its employees unless the company exercises direct control over the employees rather than merely having the ability to direct the staffing company employees.

To clarify, it is basically the difference between a supervisor of a hotel telling the landscaping crew (that is employed by a staffing company) how to perform their jobs and exactly what needs to be done (direct control) versus the staffing company supervising, disciplining, and directing the employees with the supervisor or owner of the hotel merely having the authority to direct these landscaping employees (indirect control).

I know it is a bit convoluted, but it is incredibly important. Depending on how this decision turns out it could have a big impact on any company that franchises businesses. Yes, that means that it will impact every McDonalds and Chick-Fil-A owner.

Independent Contractor Issues Will Arise in Many States

Independent contractors are everywhere and the law concerning them is far from settled. My prediction is that more states will seek to limit the abilities of companies to use independent contractors especially when these contractors form a part of the company’s core business (think UBER drivers).

The California Supreme Court issued a landmark decision last year and the effects are still being felt. Below is the new test (called the ABC test) that the court implemented. For a worker to be an independent contractor the company must show:

1) that the company does not direct the worker in the performance of her job, 2) that the worker performs work outside the scope of the company’s typical business (such as a freelance artist who designs fliers for a moving company), and 3) that the worker has made the affirmative decision to go into business for herself, perhaps by incorporating or starting an LLC.

New Jersey and Massachusetts also use the ABC test to determine whether a worker is an independent contractor. Many of the companies that use independent contractors have a bad reputation and it is likely that more state supreme courts and possibly legislatures will adopt the ABC test. Regardless, it will get harder (at the state level) for companies to employ independent contractors.

More States will Protect Medical Marijuana Users from Discrimination

More states will change their stance on medical marijuana and whether employees that use it are protected from discrimination. Currently Connecticut, Massachusetts, and Rhode Island protect employee use of medical marijuana and prohibit employers from firing those employees for off duty medical marijuana use. In December, a Delaware judge allowed a case involving a medical marijuana user that was fired after failing a drug test to move forward.

We may not get a decision on this case this year, but it is likely that Delaware will join Connecticut, Massachusetts, and Rhode Island in protecting off duty medical marijuana use, and more states will follow suit.

Unfortunately for employers, there is not a good test that can measure impairment for marijuana, which is why more states protecting off-duty marijuana use will cause problems for employers. Until there is a test that can measure impairment, increased training will be critical so that supervisors can observe employees that appear to be impaired.

You can see my earlier post regarding addressing marijuana in the workplace here.

Notices of Inspection (I-9 Audits) Will Increase

There will be more Notices of Inspection (I-9 Audits) against businesses this year. As I said in a prior post about Notices of Inspection:

Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018.

Immigration enforcement is a priority for the Trump Administration.

The Supreme Court Will Issue a Decision About DACA. A Deal Will be Reached to Allow DACA Recipients to Remain in the US.

Either the Supreme Court will issue a decision about DACA or there will be new legislation that will solve the DACA issue. DACA holders will achieve some form of permanent or semi-permanent status that will allow them to remain in the US.

As I said in a prior post about DACA:

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today [(November 8)] the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The Trump Administration has already appealed the decision of the Ninth Circuit to the Supreme Court. This is an issue that will likely be decided within the next year or so through a bipartisan deal.

The Spouses of H-1B Visa Holders Will Lose their Work Authorization While They Wait for a Green Card

H-1B spouses will lose their lawsuit to retain their work authorization while waiting for their green card.

There is currently a lawsuit about whether spouses on H-4 visas will be allowed to obtain work authorization while they wait for their green cards after their I-140 is approved. This is especially important to immigrants from India and China as they may wait years (sometimes even more than a decade) until they are able to get a green card after their spouse’s immigrant petition has been approved. Unfortunately, I believe that they will eventually lose their lawsuit. Administrative agencies have a lot of authority to change their positions on regulations.

Conclusion

I do not believe that it will be a year with as many changes in labor and employment law (at the federal level) as last year because Congress is split. However, many states will undoubtedly try to fill in the gap. The Supreme Court could also cause major changes in labor and employment law by reviewing whether sexual orientation is protected under Title VII.

These are my 2019 labor and employment law predictions. I’ll write a post at the end of the year to let you all know whether my labor and employment law predictions came true.

Happy New Year Everyone!

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How Do I Pay Employees or Why is Paying Employees So Hard?

Published by Brett Holubeck on November 30, 2018

Image of money to demonstrate that employers need to be concerned about how to pay employees — Photo by Sharon McCutcheon on Unsplash

It should be easy to pay employees. A company writes a check or does a direct deposit and then the company does it again a couple of weeks later. Unfortunately, paying employees is one of the most difficult tasks that employers do. Lawsuits alleging violations of the Fair Labor Standards Act (wage and hour lawsuits) are up by 415% since 1997. “The top 10 employment-related settlements in 2017 totaled $2.72 billion—up from $1.75 billion in 2016.” These lawsuits are expensive! Let’s also remember that companies not only need to follow the law at the federal level under the Fair Labor Standards Act, but they also need to follow laws at the state, city, and county level. So what should employers do? Answer: They should pay their employees correctly.

Here are the Various Ways that You Can Pay Employees

1. Hourly

This is (seemingly) one of the easiest ways to pay employees. An employer pays employees the same rate for every hour that they work. Companies use this method when employees do not qualify for an exemption from overtime, their hours vary from week to week, or they are primarily part time employees.

With hourly employees there are number of things that employers need to remember to minimize potential lawsuits:

Make sure that the timeclock captures all the time that the employee spends working. Starbucks recently lost a case (in California which is not friendly to employers) for time spent off the clock “activating the store alarm, locking the front door and walking co-workers to their cars,” which took one employee 4-10 additional minutes per shift. Employers need to be careful about time that is spent off the clock. Regularly occurring off-the-clock work may be considered compensable time (paid time) in some situations.

Have a policy for reporting off-the-clock work and explain that policy to employees. In one case, Chicago police officers lost a lawsuit claiming that they were not properly paid for answering emails off-the-clock because Chicago did not forbid these employers from reporting off-the-clock work and it did not have actual constructive knowledge that employees were working off the clock.

One final note. While employers have to pay employees for working off-the-clock even if their policy forbids employees from working overtime without approval, the company may still discipline employees for violating their policy against working overtime without getting proper authorization.

2. Salary Exempt

Some employees are exempt from being paid overtime. There are a variety of exemptions, but the most common exemptions are:

If an employee meets the required salary for the exemption (usually $455 per week) and the employee meets the duties for the exemption, then employers do not need to pay them overtime.

The issue for most employers becomes whether or not the employee actually meets the required duties to be exempt. For example, Taco Bell has been sued because they allegedly classified employees as managers that did not have the authority to hire, fire, or discipline employees or recommend that employees be hired, fired, or disciplined. The managers were essentially doing the same work as other staff: cleaning, cooking, bussing tables, etc.

3. Salary Nonexempt

Employees can be paid a salary even if they are not exempt from overtime. Employers must pay these employees overtime for any hours that they work over 40 hours a week (or more than 8 hours in a day if required by state law). The reason that some companies use this method is that many employees feel that getting paid a salary is a status symbol and it makes them feel more like a professional. Many workers are paid a salary even though they are not exempt from overtime. The employers just limit their hours to 40 hours a week to avoid paying them overtime.

4. Commission

Employees may be paid a commission. Employees will typically be paid a straight commission (they only earn money when they make a sale) or a draw against commission. A draw is essentially an advance that the company pays an employee before they make any sales. For example, the company may give an employee a draw of $500 a week. At the end of the month or the relevant time period, the company would pay the employee any excess commissions that they earned. If the employee earned $5000 in commissions by the end of the month, then the employee would be paid the remaining $3000. If an employee earns less than they were paid in advance (less than the draw: i.e. they earned $1000, but were paid $2000), then the employee will owe their employer money.

The advantage of the draw against commissions is that it balances out the employee’s earnings. They get consistency in their pay every week (assuming that they always meet their sales goals).

5. Tipped Wages

An employer may take advantage of the tipped credit and only pay on employee $2.13 an hour (if not prohibited in their state or city) provided that the employee makes at least $7.25 an hour or the state or local minimum wage with tips. Essentially, the employer pays $2.13 and the employee earns at least $5.12 in tips. If an employee does not make at least the minimum wage with their tips, then the employer has to pay the employee the difference.

An opinion letter from the Department of Labor released earlier this month also eliminated the 80/20 rule, which barred employers from using the tip credit for employees that spent more than 20% of their time doing non-tipped activities.

Employers can now use the tip credit as long as the duties are related to the tipped activities. For example, employers can utilize the tipped credit for servers that clean up and set tables and other tasks related to working as a waiter or waitress.

You can read more about this issue in this post on paying tipped employees.

6. Piece Rate

This is not a recommended approach. It is basically the equivalent of when you were a kid and were paid for every can that you brought to the recycling center. You are paid a set rate for how much you produce. For example, a farmhand may be paid a set amount for the strawberries that they bring in from the fields.

The most important point to remember with a piece rate is to be sure that employees still make a minimum wage and to properly determine the employee’s regular rate so that companies pay employees the right amount for any overtime.

Here is a helpful explanation from the Department of Labor:

The regular rate of pay for an employee paid on a piecework basis is obtained by dividing the total weekly earnings by the total number of hours worked in that week. The employee is entitled to an additional one-half times this regular rate for each hour over 40, plus the full piecework earnings.

Example: An employee paid on a piecework basis works 45 hours in a week and earns $405. The regular rate of pay for that week is $405 divided by 45, or $9.00 an hour. In addition to the straight-time pay, the employee is also entitled to $4.50 (half the regular rate) for each hour over 40 – an additional $22.50 for the 5 overtime hours – for a total of $427.50.

Another way to compensate pieceworkers for overtime, if agreed to before the work is performed, is to pay one and one-half times the piece rate for each piece produced during the overtime hours. The piece rate must be the one actually paid during nonovertime hours and must be enough to yield at least the minimum wage per hour.

7. Stock Options

This cannot be your only form of payment, but it is a way to encourage employees to work for a company. For employees, they have the option of taking less in salary for the chance to make more in stock when the company goes public or at some later point. Of course, employees may end up making less money by taking stock options in lieu of a larger salary. It is a bit of a gamble.

8. Bitcoin or Cryptocurrency

Bitcoin has fallen dramatically in price since it rose to record highs last year. Jon Hyman breaks down why it is probably not permissible to pay employees directly in Bitcoin under the Fair Labor Standards Act:

The IRS treats bitcoin and other virtual or cryptocurrencies as property, not as currency.

And, the Fair Labor Standards Act requires that employers pay employees in “cash or negotiable instruments payable at par.”

Because the IRS treats bitcoin as property, it’s very likely that the DOL will not consider it “cash” or a “negotiable instrument” (i.e., a paycheck) for purposes of wage payments.

Thus, if you are not properly paying your employees under the FLSA, you have failed to pay them a minimum wage (a big FLSA no-no), no matter how valuable the Bitcoins you’re providing may be.

Conclusion

There are a lot of ways to pay employees, but the key is to do it properly. No matter how companies pay employees they need to ensure that the company has good records so that it can adequately respond to any wage and hour claim that may be filed against the company.

The information provided is my own and does not reflect the opinion of my firm or anyone else.