Published by Meg Vergeront on June 30, 2015 | Permalink
Currently, employers cannot classify positions as exempt from federal overtime rules unless they pay workers in those positions a minimum annual salary of at least $23,660. President Obama has directed the federal Department of Labor to change that. On June 29, 2015, President Obama announced a proposed rule that would expand the number of employees eligible for overtime by requiring employers to more than double the current minimum annual salary requirement to $50,440. If an employer pays a lesser annual salary, an otherwise overtime-exempt position would no longer be exempt.
Democrats have hailed the proposed rule as providing fair wages to hard-working employees. Republicans and business groups contend that it will cost jobs.
The rule is expected to be completed in 2016, although implementation of the rule is not a certainty. Congress can act to block the rule, and it is likely that opponents to the rule will challenge it in court. Many economists expect that the rule, if implemented, would induce employers to reduce the work hours of employees who lose the overtime exemption and it is likely result in more employers paying a lower base wage to ensure that they do not end up paying more than paid in salary prior to an employee losing the exemption.
Check this blog regularly for updates on the progress of the rule and timing of implementation if it is adopted.
 Note: the minimum salary requirement is only one of many factors that go into determining whether a position is exempt from overtime. The minimum salary is a necessary, but not sufficient, requirement.
Published by Meg Vergeront on April 22, 2014 | Permalink
It has already started--high school students are blanketing employers in their area with applications for summer employment. Are you ready? Most employers know that special rules apply to teenage employees, but it never hurts to review the basics.
The most basic rule is that both federal and Wisconsin have laws and regulations addressing teen employment and Wisconsin employers must comply with whichever law--state or federal--provides the most protection to the teen. Be sure to review both state and federal rules and/or consult with a wage and hour attorney to make sure you get it right.
Employers should also be aware that Wisconsin law requires that teen employees have work permits in most circumstances. The employer generally distributes the permits to the prospective employee to complete and return.
While there is no cap on the number of hours most teens may work during summer while school is out of session, they cannot work more than 6 days in a row and are prohibited from working in certain industries. Be sure to check both state and federal rules to make sure that teen employment is not forbidden in your industry.
Finally, keep in mind that Wisconsin employers may pay youth under 20 years of age a sub-minimum wage of $5.90 per hour for up to the first 90 days of employment. At the end of the 90 days, the youth must be paid the regular minimum wage. The 90-day period will generally cover the majority of the employment of those teens hired solely for summer work. This can add up to significant savings for an employer. Keep in mind that there are rules designed to prevent abuse of this exception, such as a prohibition against displacing a full minimum wage (or higher) employee with a teen being paid sub-minimum wage.
Published by Meg Vergeront on February 20, 2014 | Permalink
A member of Congress recently introduced a bill to amend the federal Family and Medical Leave Act is several significant ways. HR 3999 would amend the current Act to provide as follows:
*Cover employers with 25 + employees (current only applies to employers with 50 + employees).
*Permit employees to take "parental involvement" leave to participate in/attend activities sponsored by a school or community organization that are related to a program of the school or organization that the employee's son, daughter, or grandchild attends.
*Permit leave for "family wellness" to allow employees to attend to routine family medical care needs, such as medical and dental appointments of children, grandchildren and spouses, or to attend to the care needs of elderly relatives, whether or not they are in nursing or group.
*Provide up to four hours of "parental or family wellness leave" during a 30-day period and up to 24 hours in a 12-month period. Employees could elect or the employer could require substitution of other accrued paid leave.
*Employees would have to give at least seven days' notice of intent to take parental involvement or family wellness leave. When taking family wellness leave, employees also have to "make a reasonable effort" to schedule the leave so to avoid unduly disrupting the employer's operations, subject to the health care provider's approval (if applicable).
It is critical for employers to keep an eye on this proposed legislation and weigh in if deemed appropriate.
Keep in mind that, whether or not the legislation passes, Wisconsin has its own Family and Medical Leave Act which has some significant differences from the federal law as it exists and as proposed. Despite the differences, employers have to comply with both.
Published by Meg Vergeront on February 20, 2014 | Permalink
Think your standard employee separation agreement complies with the law? According to the Equal Opportunities Commission (EEOC), it may not. The EEOC recently filed a lawsuit in federal court challenging terms of a CVS employment separation agreement. Specifically, the EEOC is alleging that several terms of the agreement unlawfully restrict the rights of employees who sign the agreements to file discrimination charges or communicate and cooperate with the EEOC. Such restrictions violate federal law.
The allegedly offending clauses include:
*A cooperation clause requiring employees to notify CVS's in-house counsel if the employee receives an administrative complaint relating to the employee's former employment.
*A confidentiality clause prohibiting employees from discussing personnel information.
*A non-disparagement clause prohibiting employees from making statements disparaging or harming CVS's reputation.
*An attorneys' fees clause requiring a terminated employee to pay CVS's reasonable attorneys' fees if CVS has to sue because the employee breaches the separation agreement.
*A covenant not to sue, prohibiting employees from suing CVS, even though the clause carved out the right to participate in or cooperate with state and federal discrimination investigations and proceedings (such as EEOC investigations/proceedings).
*A general release, including a release of all claims of discrimination.
If the EEOC is successful in this lawsuit, employers will have to virtually start from scratch in an attempt to craft a separation agreement that protects their interests in buying a release of claims from former or departing employees without violating EEOC's dictates.
Employers need to watch this case closely.
Published by Meg Vergeront on September 12, 2013 | Permalink
The Secretary of the Department of Labor just announced that the Department will be cracking down on employers’ misclassification of employees as independent contractors with respect to minimum wage and overtime requirements. Employers need to review whether those workers employers label “independent contractors” are properly classified for wage and hour purposes, as well as worker’s compensation and unemployment compensation purposes. The definition of independent contractor is slightly different under each of these laws and employers in general must make sure that each definition is met before they can lawfully treat individuals who perform work for them as independent contractors.
Published by Meg Vergeront on July 29, 2013 | Permalink
The American Medical Association voted last month to classify obesity as a disease requiring a range of medical interventions to advance obesity treatment and prevention. Given the broad definition of “disability” under the Americans With Disabilities Act and the Wisconsin disability anti-discrimination act, it may not be too long before courts start ruling that obesity is covered by these disability discrimination laws and reasonable accommodations will need to be provided as appropriate. Keep an eye out for decisions addressing the issue that are sure to be forthcoming in the near future.
Published by Meg Vergeront on May 7, 2013 | Permalink
The National Labor Relations Board (NLRB) recently decided that an employer violated the National Labor Relations Act (NLRA) when it terminated employees who complained about the conduct of their supervisor on Facebook. The case is Design Tech. Grp. LLC d/b/a Bettie Page Clothing.
The NLRA prohibits all employers, both union and non-union, from punishing employees who act together to complain about the terms and conditions of their employment (conduct referred to as “concerted activity.”) In Design Tech., the NLRB determined that a Facebook “conversation” about workplace conditions is, in and of itself, concerted activity. Based on this determination, the NLRB concluded that the law prohibited Design Tech from punishing its employees over the Facebook postings. The Board ordered the employer to reinstate the employees and pay back wages, among other remedial relief. This case is a reminder that employers must tread very carefully when taking any action based on the social media postings of its employees. Consulting with legal counsel before doing so can help an employer stay on the right side of the law.
Published by Meg Vergeront on May 6, 2013 | Permalink
According to a recent Eleventh Circuit Court of Appeals decision, undocumented workers are entitled to sue under federal law for minimum wage and overtime. The Eleventh Circuit does not govern Wisconsin, but Wisconsin employers should nonetheless pay attention to the ruling. Paying all employees at least minimum wage and all overtime due will help keep you out of court, no matter which employees are at issue.
Published by Meg Vergeront on March 28, 2013 | Permalink
Senator Tom Harkin (D-IA) and Representative Rosa DeLauro (D-CT) recently introduced legislation referred to as “the Healthy Families Act” that would require employers with 15 or more employees to provide those employees with paid sick leave. As proposed, the legislation provides generous benefits for employees. Some highlights are:
- Employees would earn one hour of paid sick time for every 30 hours worked, to a maximum of 56 hours annually;
- Leave could be taken for the employee’s own or for a family member’s illness, and for preventative care, e.g., medical appointments;
- Employees who are the victims of domestic violence, stalking or sexual assault would qualify for leave;
- Leave would begin accruing the first day of employment and employees can use it after 60 days;
- Leave would carry over from year to year, but could not exceed 56 hours absent employer consent;
- Employers could require medical certification for absences of more than three consecutive days;
- Employees who leave and are rehired within 12 months would be entitled to accrued leave earned prior to leaving employment and would be entitled to take sick leave immediately upon rehire.
Published by Meg Vergeront on November 12, 2012 | Permalink
In Wisconsin, some local ordinances, like City of Madison Ordinance 39.03, prohibit employers from discriminating on the basis of physical appearance. In those jurisdictions, Wisconsin employers need to be careful what they say in job announcements or during the hiring process regarding an §applicant’s physical appearance to avoid a potential discrimination charge.
But what about outside the jurisdictions of these municipalities? Are there other laws that permit employees to sue Wisconsin employers for allegedly discriminating on the basis of physical appearance? Not per se. Nothing under Wisconsin state law or federal law expressly makes physical appearance a protected classification. That does not mean, however, that employers are free to “discriminate” on the basis of physical appearance without a risk of being sued. Basing employment decisions on a person’s physical appearance can give rise to a claim that physical appearance “discrimination” is simply a pretext for denying employment based on age or based on gender stereotyping about how men and women should look.
The threat of such a claim is not just something made up by lawyers to scare their clients. The federal Equal Employment Opportunities Commission (EEOC) recently started an investigation of a coffee shop chain regarding the company’s alleged practice of hiring only attractive women. The EEOC did so even though no applicant or employee had filed a complaint. The agency’s rationale is that individuals may not even know that they are being discriminated against on the basis of age or some other protected classification, apparently under the guise of hiring only “beautiful people.” The EEOC’s investigation makes it all the more important for employers to follow best practices regarding hiring and employee retention and rewards, making such decisions on individual work-related qualifications.