In yet another example of White House politics driving the employment ship, the U.S. Department of Labor (DOL) recently rescinded regulations that had been proposed to clarify the fluctuating hours method of calculating overtime.  This method, also known as fixed-pay-for-fluctuating-hours, is a lawful method under the Fair Labor Standards Act of paying non-exempt employees whose hours fluctuate from week-to-week a fixed salary that is meant to be the employee's straight-time wages for all their working time.  When the employee works overtime (i.e. more than 40 hours in a week), the overtime premium is calculated at half-time rates rather than the traditional time-and-a-half.  The regulations proposed under the Bush Administration were intended to clarify that additional forms of compensation, such as production bonuses, commissions, on-call pay, or shift premiums, were permissible under the fluctuating hours method as long as they were included in the employee's regular rate for purposes of overtime calculations. 

Desiring to make the fluctuating hours payment method less attractive for employers, the current administration rescinded the proposed language regarding bonuses and other forms of additional compensation.  The DOL explained its decision by stating that providing an employee with additional forms of compensation was inconsistent with paying the employee a "fixed salary."  The DOL went on to state that, except for overtime premiums, providing any other forms of additional compensation would invalidate the fluctuating hours payment method.  Presumably in that case the DOL would take the position that the employee would be entitled to overtime calculated at the full time-and-a-half.

Although not addressed by the DOL's      Continue Reading...

Here’s a unique footnote in employment law and superhero history.  In 1972 the U.S. Department of Labor developed a public service announcement to promote the Equal Pay Act featuring characters from the campy Batman TV show.  In the PSA Batman and Robin are tied up next to a ticking bomb in an abandoned warehouse.  Batgirl swoops in just in the nick of time.  But she leaves the Dynamic Duo hanging, questioning Batman why she’s paid less than Robin.  “Holy discontent!” exclaims Robin.  To which Batgirl retorts, “Same job, same employer, means equal pay for men and women.”  Is it curtains for the Caped Crusaders?  Will Batgirl get equal pay?  Click here to watch the video.  

Perspective is good.  To make good decisions, it’s helpful to see things not only from your vantage point, but from the vantage point of others.  As the old saying goes, “Don't judge a man until you've walked a mile in his shoes.” 

Of course your organization’s lawyer drives you crazy.  But does your organization also do things that make your lawyer crazy?

• Employment Law Update;
• The New Activist National Labor Relations Board—Believe Us, You Care;
• Sexual Harassment in the Technology Era;
• The Latest FMLA Cases;
• An FLSA Audit Is Coming—Be Prepared before DOL Arrives;
• Things HR Can Do Now to Take Advantage of the New Kansas Workers Comp Law;
• Authorized or Not?  Current Trends Related to Work Authorization and Immigration Issues; and
• Genetic Information Non-Discrimination Act (GINA).

Choose your own schedule based on breakout session options.  This entertaining and economical seminar provides the latest information you need to help your      Continue Reading...

Who would've thought March madness would provide an opportunity to comment on immigration law and harassment issues? 

During yesterday's first round tournament game, a Kansas State player was fouled and went to the free throw line to shoot two free throws.  Like any good crowd, the Southern Mississippi fans tried to get in his head to cause him to miss the free throw.  The problem is they whipped out the "Where's your green card?  Where's your green card?" chant because the Kansas State player is Hispanic.  The player is actually from Puerto Rico and grew up in Miami.  And he is a U.S. citizen, just as surely as the misguided Southern Miss students who originated the chant. 

While the idea on the basketball court is to create a hostile environment for your opponents, it isn't likely that a "Where's your green card?" chant is something Southern Miss administrators wanted to hear.  This type of behavior is never acceptable, whether at a sporting event or in the workplace.  These types of comments are becoming more commonplace, particularly as the various state legislatures debate and/or enact legislation relating to immigration and worker documentation.  And it's comments like these that employers dread.  Imagine if employees in your workplace were treating Hispanic co-workers in this manner.  In the case of the basketball game, Southern Miss will take some disciplinary actions against its students and that is likely to be the end of it.  In the workplace, those kinds of comments may lead to an EEOC charge and maybe even a slam dunk.  

For those who want to see the video click here.  You'll have to turn up      Continue Reading...

In a recent decision (Gray v. Powers, No. 10-208080 (5th Cir. 2/29/2012)), a federal appellate court determined that an individual's status as an owner of business was not enough by itself to justify individual liability for the business' FLSA violations.  In that case, the plaintiff raised class-wide overtime claims against his former employer, which had gone out of business.  Finding the business' well dry, the plaintiff sought individual liability against one of the members of the limited liability company (LLC) that had run the business.  The court found that the member did not exercise actual operational control over the business.  He did not exercise authority with respect to the hiring or firing of the plaintiff or other employees.  Likewise, he did not exercise control over the employee's work schedules, wages, or other terms and conditions of employment.  Finally, the court found he was not involved in the maintenance of the company's employee records. 

The court's decision is not remarkable by itself, but it highlights the potential for individual liability that exists under the FLSA.  Like corporate shareholders, LLC members are generally protected from personal liability for the actions of the company.  However, when the owner, or any manager for that matter, has an active hand in the management of the business, especially with respect to the wages or working conditions of subordinate employees, individual liability becomes a potential risk.

The H-1B visa filing period for fiscal year 2013, which begins on October 1, 2012, will open on April 2, 2012.  Employers may begin requesting H-1B visas on behalf of qualified foreign individuals who intend to start work on October 1, 2012.  In the last few years, the H-1B quota for the fiscal year has remained unused through the late fall or early winter.  Historically, the H-1B quota for the fiscal year was exhausted by the applications filed in the early April filing window.  While the usage rate for FY2013 H-1B visas is hard to predict, employers would be wise to consider filing any needed H-1B applications in April to avoid ending up with no ability to access an H-1B visa later in the year due to the annual quota being hit. 

A few weeks ago we told you about Kansas House Bill 2627, which would amend the Kansas Wage Payment Act to expand the scope of authorized pay deductions.  Since then, the bill, with a few changes along the way, was passed by the House on a vote of 93-31.  It was introduced in the Senate, and last week was referred to the Senate Committee on Commerce.  We'll keep you informed as we continue to track the bill's progress. 

The NLRB posting rule has been the subject of much delay and scrutiny.  The rule is currently set to go into effect on April 30, 2012, following a number of delays in its implementation as previously discussed in our blog.  For a summary of the requirement as issued by the NLRB click here.   At the end of last week, a federal court (in one of the pending cases challenging the validity of the rule) issued a decision upholding the core posting element of the rule and invalidating other portions of the rule extending the statute of limitations for filing unfair labor practice charges and establishing the failure to post the notice as an unfair labor practice.  The short version of the judge's decision is that the NLRB's establishment of the posting requirement is within the authority of the NLRB and is permissible.  Stay tuned, however, as there is another federal court challenge pending in another jurisdiction, and that court could reach a different conclusion on the issue.  In the meantime, employers should be prepared to comply with the posting requirement as the April 30th deadline approaches. 

Three million veterans have returned from military service over the past decade, and another one million are expected to return to civilian life during the next five years because of the anticipated drawdown of operations in the Middle East.  In recent years, the percentage of veterans who report having service-connected disabilities has risen.  About twenty-five percent of recent veterans report having a service-connected disability, as compared to about thirteen percent of all veterans, according to the EEOC.