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Telecommuting—No Longer the Way of the Future?
Marissa Mayer is making news. She may also be single-handedly changing employer policies across the country. As Yahoo’s new CEO, Mayer already made headlines as the youngest female CEO in a Fortune 500 company. But now she is becoming known for what she does and not just who she is. Mayer recently instituted a ban on telecommuting for all Yahoo employees. The decision was a massive shock to company employees who routinely worked from remote locations. After all, it seems paradoxical that a tech giant like Yahoo requires employees to be physically present in the office for work when technology permits otherwise.
The internal memorandum from Yahoo’s human resources department which announced the change cited a “spirit of collaboration” that can only be achieved when employees are physically together. In addition, Mayer wants to increase productivity for the struggling company and this, in her opinion, is best done when employees are in the actual workplace.
To many, flexible work schedules, condensed work weeks, and telecommuting is the way of the future. Such workplace flexibility, though, can leave employers and HR departments wondering if their policies reflect the best practices for these conditions. If your business decides to offer a telecommuting policy, there are some issues that must be addressed.
First, who will be eligible? You should define eligibility based on positions, and not individuals. For example, you may think Bob is too unmotivated to work from home, but Rhonda would have no problem with efficiency. Yet distinguishing between the two could lead to a discrimination claim. A better policy may read, for example, “Non-support staff that have been with the business for at least two years are qualified to telecommute.”
Establish clear hours as to when the telecommuter should be working and reachable. The Fair Labor Standards Act and similar state laws apply to home-based worker, so employers need a system for tracking employee hours, including overtime.
Consider safety. While OSHA does not hold employers responsible for the safety of home offices, workers’ compensation laws do still apply. Employers will need coverage for employees who may never step foot in the office. There should also be reporting and investigation procedures in place, just as there are for workplace injuries. Claims arising from telecommute employees should be carefully scrutinized to determine if the injury is work-related.
One of the biggest concerns with flexible work schedules is how to achieve effective oversight. For that reason, consider what measurements you will use to measure success before allowing for telecommuting. Keep communication open. For instance, require telecommuters to send in a daily email detailing projects or assignments they are tackling for the day. Insist on a consistent schedule. Be certain that you are providing the same compensation, benefits, and opportunities for promotion to telecommuters that you give to non-telecommuters.
Lastly, and perhaps most importantly, consider the needs of your business. Mayer decided telecommuting no longer worked for Yahoo. Start-ups or businesses dependent on customer face time may take the same approach. For others, it can be a valuable program. Either way, it is important to address the issues discussed herein in your company policies and procedures. Regardless of the size of your business, do not just assume your employees understand.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Employee’s Role in Timekeeping Emphasized in New Sixth Circuit Opinion
A recent court ruling by the Sixth Circuit, which includes Kentucky, has received extensive publicity for its holding relative to employer’s obligations for employee lunch breaks. In White v. Baptist Memorial Health Care Corp., 11-5717 (6th Cir. App. 2012), the United States Court of Appeals for the Sixth Circuit held that the employee “bears some responsibility for the proper implementation of the FLSA’s overtime provisions […] an employee cannot undermine his employer’s efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.”[1]
As a result, the burden to maintain accurate records may be shifting more towards the employee. In White v. Baptist Memorial Health Care Corp., an emergency room nurse – Plaintiff White — did not have a regularly scheduled lunch break due to the nature of her job. The Defendant’s employee handbook stated that employees working shifts of six or more hours would receive an unpaid meal break, the time for which would be automatically deducted from their checks. If an employee’s meal break was missed or interrupted because of a work-related reason, the employee would be compensated for the time worked. Each employee was to record all time spent working during his/her breaks in an “exception log.” In addition, Defendant also had procedures for employees to report errors in payroll for inaccurate wages.
Plaintiff White initially recorded her interrupted meal breaks in the log and was compensated for those breaks. But she did not use the log or the payroll system to report the unpaid periods at issue in her suit. She occasionally told her supervisors she was not getting her meal breaks, but never told her supervisor or the HR department that she was not being paid. She then filed suit claiming she was not compensated as required by the FLSA. The district court granted summary judgment to Defendant and the Court of Appeals affirmed the ruling.
The Court of Appeals held that Defendant did not know or have any reason to know of the occasions Plaintiff White worked through breaks. Per the Court: “When White utilized the system she was compensated and when she failed to use the system she was not compensated.”
It is well established that employers must have a policy and procedure in place to report overtime and unpaid wages. The White decision indicates that the employee’s actions should also be thoroughly examined to evaluate an FLSA claim. Accordingly, the employer’s policies should be well-known to its employees and the procedures should be easy to follow, which may ultimately ease the employer’s burden by ensuring that employees are informed that such compliance is a two-way street.
Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association.
She may be reach at bkoch@mmlk.com or at (859) 231-8780, ext. 300
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
[1] White v. Baptist Memorial Health Care Corp. at 8.
Inclement Weather and Time Off Issues: To Pay or Not to Pay
With winter closing in, the possibility of bad weather brings potential attendance issues to the forefront of our minds. Icy roads and snow storms in Kentucky often cause delays and closings of not only schools but also businesses. Of course safety is the primary concern for everyone in extreme weather conditions, but employers must think beyond the logistics of employees getting to work or staying home. Absences due to bad weather impact the productivity of a business, and raise questions regarding the calculation of pay and how an employee’s time should be tracked. These issues are further complicated when dealing with a mix of exempt and non-exempt employees, however the U.S. Department of Labor (DOL) does offer some guidelines to assist an employer in determining their rights and responsibilities when bad weather impacts employee attendance.
Let’s consider several scenarios:
The business decides to close due to bad weather and sends non-exempt employees home: Employers are required to pay hourly employees only for the hours worked. Under the Fair Labor Standards Act (FLSA), an employer is not obligated to pay for hours not worked. Therefore, non-exempt employees when unable to attend work, or sent home due to weather do not have to be compensated for the time off. This is a fairly straightforward and uncomplicated practice, unlike dealing with the complex nature of exempt employees.
The business is open, but an exempt employee chooses not to come in: An exempt employee almost always has to be paid, in any circumstance. Under the FLSA an employer is prohibited from docking the pay of an exempt employee who chooses not to come into work for inclement weather. In this position as well, any business that decides to close due to weather is required to pay exempt employees their regular salaries. The only instance in which an employer can deduct pay from a salaried exempt employee is if the facility is closed for more than a week. Another point to note is that the FLSA does not require that an employer provide vacation or leave time. Therefore there is nothing to prevent the employer from deducting the inclement weather days off from the employees’ paid time off or vacation to cover the missed work. This sounds on its surface like a positive solution to the problem. However, complications arise when an employee has not accrued enough time off or when they have already scheduled and been approved to take their remaining time off at a later date. In both cases, an employer is still restricted from deducting the difference from the employees’ salary. The days off can be deducted from future earned leave. However, serious consideration should be given to instituting this practice as it complicates the employee/employer relationship and cause morale issues which can lead to a decline in productivity or a loss of good employees.
Employer’s Plan: An inclement weather policy should be a standard document in all employee handbooks. Now is the time to review that policy and consider whether it covers all of the issues that need to be addressed to protect both the employees and the employer. Several points to consider when reviewing the policy both for its applicability and validity are as follows:
1) How are closures communicated and who is the decision-maker?
2) Can employees who are faced with daycare or school closings bring their children to the workplace?
3) Are employees permitted to work from home? What conditions apply in this instance?
4) Outline eligibility for pay, how it is determined, and if paid time off will be applied for the absence(s).
5) Will non-exempt employees be given an opportunity to make up some or all of the time missed? Will this occur within the same pay period?
Whatever the forecast this winter, with proper planning, understanding the legal obligations and a clear and concise policy an employer can reduce the likelihood of confusion created by weather-related absences. So plan now for Jack Frost, and you’ll be able to enjoy the winter wonderland without the stress of the question “to pay or not to pay.”
Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Smartphones – 24/7 Access: When are employees off the clock?
With instant access to all things via smartphones and the internet, it has become increasingly easy for employees and employers to stay connected to work all the time. Smartphone access and being constantly connected is part of our professional make-up, and necessary to keep pace with the speed of the information highway. Right? Connectivity is firmly woven into everyday business practices but at what price?
If your company issues smartphones or similar devices to all or some of its employees so they can stay in touch, checking emails or responding to phone calls after-hours or on the weekends; your company could be at risk for ‘off-the-clock’ lawsuits. The Fair Labor Standards Act (“FLSA”) requires employers to compensate non-exempt employees overtime pay for any time worked beyond a 40-hour workweek. Exempt employees (so long as they are classified correctly), are the exception. Under FLSA failure to pay an employee wages and overtime due will result in serious fines, and is a growing area of class action law suits.
Being smart about smartphones usage by employees is crucial. It is essential to have a clear electronic-use policy that outlines specific guidelines explaining work hours and use of any such device (laptops, tablets and phones). As an employer you are financially responsible for work hours that are requested and voluntary. Which means if a non-exempt employee is using a smartphone (company issued or personal) outside of work hours, for work purposes – even when not required or requested – the company is responsible for overtime pay to that employee for the hours worked. So, an electronic use policy needs to be very specific about what is permitted and what is prohibited.
Of course it is not enough to have a policy in place, it must be enforced. To enforce such a policy that applies to work performed after-hours and off-premises, the employer must institute a strong system of reporting and monitoring the activity. This could include a specific time-recording tool, as well as an essential versus non-essential activity list, which could temper an employee’s overtime.
There is a “de minimus” rule, which has been adopted in several federal court proceedings that classifies minimal time spent checking or replying to emails or texts as not compensable. However, if the employee tracks and presents the aggregate of these de minimus actions, the time often becomes comprehensive enough for an overtime claim.
Having the correct system and policy in place to control smartphone usage is no longer an afterthought; it is an essential element of employment and a critical policy. Smartphones have changed the way we work, and as in many areas of business, technology surpasses our ability to keep up with the changes it creates. If you don’t have an electronic-use policy in place, we recommend you make it priority number one for the HR Department. Have it reviewed by an attorney, educate your staff and enforce its rights and restrictions.
Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Unpaid Interns – Too Good to be True?
With summer fast-approaching, many employers are now deciding whether to hire summer interns. Undoubtedly, the benefits of an internship extend to both the employer and the intern. The company receives the intern’s services, while the intern enjoys exposure to and experience within his or her chosen field. If your company is considering hiring an intern, however, it is imperative that you seriously evaluate the internship program and policies to ensure that your company is not violating federal law.
The Fair Labor Standards Act (“FLSA”) provides that individuals who “suffer or [are] permitted to work must be compensated under the law for the services they perform for an employer” unless otherwise exempt. An internship in the private, for-profit sector is typically viewed as employment. As a result, these interns must be paid at least the minimum wage and overtime compensation for any hours over forty worked in a work week.
Under certain circumstances, however, individuals who participate in for-profit, private sector internships or training programs may do so without compensation. If an intern receives training for his or her own educational benefit and that training meets certain criteria, then the employer is relieved of the obligation to compensate the intern. The six criteria that must be applied when making this determination is as follows:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displaced regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
If you are considering hiring unpaid summer interns, it is vital that you consult with an attorney with experience in employment law to ensure that your company is protected.
Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association.
School’s Out for the Summer!: Important Employment Law Considerations when Hiring Interns and Graduates
Spring is here, and along with the change in season comes a flurry of graduation announcements, parties, and for employers, a flurry of applications and resumes from recent high school and college graduates. Recent graduates and interns provide a wealth of talent for many employers, and often become a core part of their operations and strategy. However, there are a few employment law considerations that must be understood by a company’s HR representative, and really, everyone involved in the hiring process, when advertising, hiring and determining wages for your Spring hires.
Advertising for Talent – High School Diploma Requirements, Potential Violations of the Americans with Disabilities Act?
Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an Informal Discussion Letter (“EEOC Letter”)[1] which opined that employers who require high school diplomas as a minimum standard for job applicants, and who often advertise as such, may be in violation of the Americans with Disabilities Act, because they screening out individuals who are unable to graduate because of a learning disability. Though Informal Discussion Letters give guidance regarding a particular inquiry and are not binding precedent, this letter serves as a wake-up call for employers of skilled and unskilled workers alike, who have long considered a high school diploma requirement to be a minimal, achievable and useful standard to ensure that its workforce possesses basic reading, writing and math skills.
The Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (“ADA”), is applicable to employers who employ more than fifteen (15) employees, and prohibits employers from discriminating against a qualified individual – those who can perform the essential functions of the employment position with or without reasonable accommodation – on the basis of his or her disability, during all stages of the employment relationship, including throughout “job application procedures;” during the “hiring, advancement, or discharge of employees;” and with regard to “employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S. C. 12111(8) and 12112. A disability is defined with the ADA as a “physical or mental impairment that substantially limits one or more major life activities of such individual” [generally including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working]; or “a record of such an impairment;” or “being regarded as having such an impairment”. 42 U.S.C. 12102.
According to the recent EEOC Letter, an employer may still apply the high school diploma requirement (and presumably other degree or certification requirements) if it can demonstrate that such a requirement is “job related and consistent with business necessity,” which essentially requires a showing that the functions of the particular job position cannot easily be performed by someone who does not have a high school diploma. For example, for a legal secretary, who must possess significant reading, writing, word processing, and math skills to perform such a job, a high school diploma requirement may be deemed “job related and consistent with business necessity,” but the same may not be true for a grocery bagger, hair stylist or delivery driver, who may not utilize the same skills taught in high school as a part of his or her job functions.
In light of this letter, and the reality that the EEOC may soon be inclined to apply this new position in the right case, it is prudent for employers to take another look at its job advertisements and applications to determine: (1) whether a high school diploma is actually essential to the job position; (2) what skills taught in high school are actually required for the position; and (3) how they can revise their job advertisements and applications to reflect the skill requirements necessary to the particular job, rather than a threshold diploma requirement. It is also advisable to re-train management to ensure that they are not discriminating against applicants with learning disabilities who can perform the essential job requirements with or without reasonable accommodation, but who have not been able to achieve a high school diploma. While an employer is not required to prefer the learning disabled applicant over other better qualified applicants, it must consider the applicants true ability to perform essential job functions through demonstration of skills, work history considerations, etc., in lieu of a strict high school diploma requirement.
It is recommended that you consult with counsel before advertising for a position that requires a high school diploma or other educational degree or certification.
Interviewing and Hiring Talent – Hiring “Recent Graduates,” an Age Discrimination Concern?
Advertisements for job positions seeking “recent graduates” of high school or college, may implicate an age discrimination concern, because such language discourages those over forty (40) from applying. Though in recent years, there has been an upsurge of non-traditional students seeking to fulfill their graduation requirements, or seeking advanced degrees to increase employability, older individuals are still less likely to fit into the category of “recent graduate”.[2] As such, this or similar terms might be worth avoiding when advertising a job position. It is equally important that an employer’s HR representative, or other employees involved in the hiring process, understand that certain questions or discussions during the application or interview process – How old are your children? Do you have grandchildren?, etc. — could also create a perception that an applicant is being discriminated against due to his or her age.
The Age Discrimination Act of 1975, enforced by the Civil Rights Center, prohibits discrimination on the basis of age in programs and activities that receive federal financial assistance, and the Age Discrimination in Employment Act of 1967 (“ADEA”) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age. 29 U.S.C. §6101 et seq.; 29 U.S.C. §621 et seq. The ADEA, which is enforced by the Equal Employment Opportunity Commission (“EEOC”) applies throughout the employment process – hiring, compensation, promotion, discharge – and applies to the conditions or privileges of employment.
While the ADEA does not expressly prohibit asking an applicant for his or her age, such requests, or requests for information which indicates age, are closely scrutinized by the EEOC, because such questions indicate a possible intent to discriminate based on age. In order to avoid such implications, it is important that an employer’s HR representative, as well as all employees involved in the hiring process, are adequately trained, aware and sensitive to certain questions and topics of discussion that could be perceived as designed to discriminate on the basis of age. If an age inquiry is necessary – perhaps to complete a criminal background check or for other lawful purposes – an employer may wish to wait until after hiring the employee to request that information.
If you have concerns regarding whether your job advertisements, applications or hiring process could indicate intent to discriminate based upon age, you should contact counsel for advice regarding your company’s specific situation.
Paying Talent – Interns, Free Talent?
Interns are often a valuable resource for employers – from high school aged technical school interns, to college students trying to gain experience their chosen field, to law school students trying to gain valuable exposure to the practice of law – and in this still tender economic climate, many may be willing to work for free in exchange for a resume boost. However, it is important to consider whether this too-good-to-be-true deal is a violation of Federal employment law that could put your company at risk.
Pursuant to the Fair Labor Standards Act (“FLSA”), individuals who “suffer or [are] permit” to work must be compensated for the services he or she performs for an employer. 29 U.S.C. 203(e) (1). More often than not, interns – at least in the “for profit” public sector[3] – must be paid at least minimum wage plus overtime compensation above forty hours per workweek. When determining whether the internship position for which you wish to hire may be uncompensated, the overarching determination is whether the intern will be serving his or her own interest in receiving training or instruction, or if the intern is benefitting the employer. Walling v. Portland Terminal Co., 330 U.S. 148, 152-153 (1947).
According to the U.S. Department of Labor’s Wage and Hour Division, six (6) questions have been deemed applicable to this determination, and include:
- Is the internship similar to training that would be given in an educational environment?
- Is the internship experience for the benefit of the intern?
- Does the intern displace regular employees?
- Does the employer derive any immediate advantage from the activities of the intern?
- Is the intern entitled to a job at the conclusion of the internship?
- Does the intern understand that he or she is not entitled to wages for the time spent in the internship?
Regarding the first criteria, if the internship occurs in a classroom-like setting, rather than within the employers normal operations, and if the skills learned are applicable to many employers – not just the one providing the internship – it is more likely that the intern may be exempt from the FLSA’s wage and overtime requirements. This also makes it more likely that the internship benefits the intern, rather than the employer. Also, if the intern’s activities do not result in any profit to the business (or related networking or client relations gain), if the intern is not displacing a regular employee, and if the interns activities are closely supervised by existing employees or if the intern essentially shadows an existing employee in his or her job, it is more likely that an unpaid internship is appropriate. Finally, it is important that an unpaid intern understand that he or she is not entitled to compensation and that he or she cannot expect employment at the conclusion of the internship. Such an arrangement is considered a trial period or training period for the employer, and the intern will be considered an employee subject to the FLSA’s wage and hour requirements.
If you are considering hiring unpaid summer interns, you should first consult with appropriate counsel.
Conclusion
These considerations should not deter you from hiring graduates this Spring. Interns, recent grads and educated employees in general can be a great asset to your business. However, it is important that you consider whether your advertisements, applications and hiring procedures may expose your business to liability. Typically small changes and training can go a long way towards protecting your company from the potential claims discussed above.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
[1] A copy of the letter can be viewed at: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.
[2] Maggie Jackson, Taking the Next Step, Boston Globe, September 13, 2009, at 1, available at http://www.boston.com/jobs/news/articles/2009/09/13/sour_economy_prompts_more_older_adults_to_return_to_school/ (“By 2007, more than a third of people studying for an associate’s or higher degrees were 25 and older. By 2017, the ranks of these older students are expected to grow 20 percent, according to the US Department of Education.”)
[3] Under certain circumstances, the FLSA makes an exception for those who volunteer to work for a state or local governmental agency or for certain religious, charitable, civic or humanitarian non-profit organizations. However, when determining whether your non-profit may hire unpaid interns, you should first consult with counsel.
