Must you pay employees for FMLA-related breaks during the work day?

Photo by Liam Stahnke on Unsplash

Last week, the Department of Labor Wage and Hour Division resumed its practice of publishing Opinion Letters. One of the first it published answers an interesting question about the intersection of the FLSA and the FMLA.

Must an employer pay an employee for FMLA-approved breaks taken during the work day?

I’ve taken some journalistic license and paraphrased the questions. The answers, however, are verbatim from the DOL Opinion Letter FLSA2018-19 [pdf].

WIRTW #501 (the “fireflies” edition)

According to a recent study, going to concerts adds years to your life.

If this is true (and who am I to argue with science), then last Thursday should propel me into triple digits.

We went to see our fav, Rhett Miller, who invited Norah to share the stage and duet with him.

I learned 4 things watching Norah:

1. She’s got nerves of steel (which I kind of already knew).
2. Her performance belies her 11 years of age (which is also kind of already knew).
3. She can hold her own with a 30-year veteran of the industry.
4. Thanks to Fake ID, I’m probably on an FBI watchlist.

Thank you Rhett, from Norah (and us, too). You are one of a kind.

Here’s what I read this week:

Anti-harassment anthems

Yesterday, I came across the very cool video for a new Speedy Ortiz song, “Villain.”

The song tackles issue of harassment, assault, and consent.

Rock music has always tackled the important social issues of the times, and #MeToo should be no exception.

The other side of diversity

Photo by Igor Ovsyannykov on Unsplash

Workplace diversity has two sides.

One side says that employers cannot discriminate against minorities. The other says that employers cannot discriminate against non-minorities in favor of minorities.

Some people call this reverse discrimination. I just call it discrimination.

#Me(n)Too

According to the Washington Post, nearly one in five — about 17 percent — of harassment complaints filed with the EEOC come from men.

And many involve same-sex harassment.

Some examples:

Cyclist fired for flipping off Presidential motorcade sues former employer

You may recall Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade, and lost her job after a photo she posted went viral.

Ms. Briskman is not taking her termination lying down. In what appears to be a deep-funded and well-orchestrated campaign, she has filed suit in Virginia state court against her ex-employer.

WIRTW #500 (the “500th” edition)

Photo by Alexas_Fotos, via Pixabay

October 12, 2007. I posted my first ever edition of WIRTW (What I Read This Week). It looked a little different back then.

It’s since morphed into what I hope is a useful weekly resource for employers to find the best labor and employment blog posts each week.

Also, holy heck! Ten and a half years and 499 installments later! Who’d have thunk it‽

Thank to everyone for reading along all these weeks and year, and to the other great bloggers who’ve published content that I’ve shared. I literally could not write this column without y’all.

Here’s this week’s list of what I read this week:

In the era of #metoo, let’s not lose focus on the “me”s other than sex

Photo by Luke Braswell on Unsplash

We’ve all done a lot of talking over the past six months about sexual harassment. We should not forget, however, that our laws make harassment unlawful if it’s based on membership in any protected class.

A federal jury in Detroit just provided employers a very real reminder of this fact.

It tagged Ford Motor Co. with a $16.8 million verdict. The plaintiff, a former Ford engineer, proved that the automaker created a hostile work environment based his Arab background.

Does your company need an Affirmative Action Plan?

Photo by Tirachard Kumtanom from Pexels

Compliance is a tricky beast, especially when you don’t know what laws your organization is supposed to be complying with.

Thus, every now and again it’s worthwhile to take a topic and break it down to it’s most basic level. Today is one of those days, and the topic is Affirmative Action Plans. 

As in, do you even know if your organization needs one?

It’s as simple as answering these four questions.

Supreme Court puts the breaks on the narrow constructions of FLSA exemptions

Photo by Coolcaesar (Own work),
via Wikimedia Commons

Yesterday, in a narrow 5-4 decision, the Supreme Court held that automobile service advisors are exempt from the FLSA’s overtime requirements.

The exemption applies to “salesmen … primarily engaged in … servicing automobiles.” The majority broadly defined these terms to hold that the plaintiffs were exempt.

And while this aspect of the decision is interesting to automobile repair shops and car dealerships, it's the opinion’s broader implications that are more interesting to me.

The 6th nominee for the “worst employer of 2018” is … the sadistic sergeant

Thomas Schiermeyer was already a recruit for the Seaside Park, New Jersey, Police Department, when he applied to the Police Academy for a promotion to an entry-level Officer. 

The application process he alleges in his lawsuit is one that I’ve certainly never seen before, and one to which no employee ever should be subjected.

Don’t sleep on verifying reasonable accommodations

Photo by Nathan Dumlao on Unsplash

George Hirmiz, a front-desk clerk at a Travelodge Hotel, was caught on video sleeping in the hotel lobby while a fight broke out among its guests. After the hotel fired him, he claimed disability discrimination. His disability? An alleged illness that he had contracted from long-term exposure to high levels of electromagnetic voltage at the hotel.

The 7th Circuit had little difficultly affirming the dismissal of his lawsuit:

What does it mean to have “work/life balance”?

What’s your definition of “work/life balance”?

To me, work/life balance means that I have the flexibility to tend to the needs of family when the need arises, and otherwise work when and where I am able.

• No school bus this morning? I’ll get to the office at 9 am instead of 7:15.
• Doctor’s appointment? No worries. I’ll leave the office at 3 and finish up what needs to be done tonight.
• Bad weather? It’s not productive to waste two hours in traffic. I’ll work from home.
• Early evening gig for the kids? I’ll pick them up from school.

Let’s all try to remember to have gender-neutral employment policies

Photo by NeONBRAND on Unsplash

Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.

The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.

OSHA resources to protect healthcare workers

Photo by Natanael Melchor on Unsplash

You might think that construction workers or manufacturing employees have the highest rate of workplace injuries. To the contrary, however, it’s healthcare workers.

On average, U.S. hospitals recorded 6.8 work-related injuries and illnesses for every 100 full-time employees, nearly twice the rate for private industry as a whole. The numbers are even higher for nursing and residential care facilities.

The most typical injuries include overexertion and repetitive stress; slips, trips, and falls; contact with objects; workplace violence; and exposure to harmful substances (including needle sticks).

Thankfully, if you are healthcare employer, OSHA has myriad publications to help.

WIRTW #499 (the “boarding house” edition)

The first time I ever heard of Jack White was August 10, 2001. I read about this up and coming band playing at the Beachland Ballroom. It was two-piece, the “brother” playing guitar and singing, and the “sister” on the drums. I was intrigued enough to check them out. Memory tells me that the first song Jack and Meg played that night was “Dead Leaves and the Dirty Ground.” Setlist.fm says it was “Let’s Shake Hands.” It doesn’t matter. After one song, I was completely hooked, and by the end of their set I had found a new artist to add to my musical pantheon.

Today, Jack White released his latest album, Boarding House Reach. Like everything he does, it rocks. It’s also brilliantly bonkers. Jack White is the mad scientist of 21st century rock ‘n’ roll. Like Bowie before him, Jack does an amazing job of changing things up from project to project, and this one does not disappoint.

Give it a listen:


Here’s what I read this week:

Ohio Chamber of Commerce takes the lead on fighting addiction at work with launch of its Employer Opioid Toolkit

Nearly 50,000 Americans lost their lives to opioid-related overdoses in 2016. Compare that figure to the HIV/AIDS epidemic, which recorded 43,000 deaths during its peak in 1995, or the entire Vietnam war, which saw 58,000 U.S. soldiers die.

Needless to say, our opioid problem is a national epidemic. And, Ohio sits right on the front lines, with the 3rd highest rate of annual opioid-related deaths, trailing only West Virginia and New Hampshire.

My state, however, is not taking this problem sitting down. Last week, the Ohio Chamber of Commerce launched its Employer Opioid Toolkit.

How can you transition older workers if you can’t force them to retire?

A Michigan oral surgery practice has agreed to pay $47,000 to settle an age discrimination lawsuit filed by the EEOC. The agency alleged that it violated the ADEA by maintaining a policy that required employees to retire at at 65. The lawsuit stemmed from the firing of an employee four days after her 65th birthday.

According to Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office, “December 2017 marked the 50th anniversary of the ADEA, Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.”

He’s absolutely correct.

I’m lovin’ it: McDonald’s settles joint employer case with NLRB

It has been nearly four years since the NLRB filed complaints against McDonald’s, seeking to hold it liable as a joint employer for the unfair labor practices of its franchisees. I have suggested that “if franchisors are equal under the National Labor Relations Act with their franchisees, then we will see the end of staffing agencies and franchises as a viable business model.”

In the interim, the NLRB has flip-flipped on its joint employment standard several times, and this very important area of the law has been in flux.

Now comes word that the NLRB and McDonald’s have reached an 11th hour settlement.

The 5th nominee for the “worst employer of 2018” is … the pension preventer

ERISA section 510 provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.

The Supreme Court has long interpreted this section as “protect[ing] plan participants from termination motivated by an employer’s desire to prevent a pension from vesting.” As the 6th Circuit noted, “[T]he prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”

Late Friday, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe late Friday. McCabe was (almost) a 21-year veteran of the Bureau, and was to have retired just two days later. The March 16 firing, however, prevented McCabe both from voluntarily leaving the FBI and collecting his federal pension.