Do you know? Volunteerism under federal wage and hour laws

According to EVliving.com, one employer has come up with a creative idea to combat the current economic downturn. The CEO of Greenleaf Book Group, a publishing company, has decided that instead of laying off any employees, his company will simply require its employees to volunteer one hour of time per week to the company.

“Cutting one person from the team is losing one invaluable resource that helps make this entire company tick,” he said. “In the short term, it’s hurting morale and lowering the productivity of a department. In the long run it means the entire company’s time and money spent trying to make up for the loss-redistributing tasks and overburdening departments, struggling to make up the slack, dealing with the paperwork, and eventually putting additional man-hours toward rehiring and retraining. And of course, the toll layoffs take on the economy are tremendous.” … 

“Essentially, every employee is putting in one voluntary extra hour per day at work,” he explained “One extra hour to be used in the most advantageous way possible: finishing up projects, having a meeting with a client or vendor, assisting a coworker, getting hands dirty working in another department. Even cleaning a desk or organizing files, if it helps improve efficiency.” 

The numbers work, he said:

• 30 employees x 1 hour per day
• Multiplied by a 5 day workweek
• Equates to 150 extra hours
• Divide that number by 40 hours per standard workweek
• The result is 3.75, the equivalent of almost 4 full time employee work weeks
• For any company, an extra hour increases the work week from 40 to 45 hours and is a simple 12.5% increase. 

Before you decide to copy Greenleaf’s idea in your own workplace, consider that it almost certainly violates federal wage and hour law. The FLSA requires employees to be paid for all hours worked. Requiring employees to work an hour without pay violates this law. For private employers, there is no such thing as a volunteer employee. All work hours must be paid hours.

To demonstrate the anachronistic nature of the FLSA, however, consider that Greenleaf could have achieved the exact same goal without violating any laws. Instead of asking for an hour of work without pay, it could have simply reduced each employee’s effective weekly rate of pay by one-fortieth. In other words, one could figure out what hourly rate of pay would get an employee to 39 hours worth of pay for 40 hours of work. There is nothing illegal about prospectively reducing pay, as long as the hourly rate is above the minimum wage.

[Hat tip: Workplace Prof Blog]

Sleeping on-the-job costs security guard his disability discrimination case

You would think that the ability to awake on one’s watch is an important attribute for a security guard. One security guard working for a Cleveland hospital believed that his employer had a duty to reasonably accommodate the side effect of his heart medication by permitting him to sleep during his shift. Rongers v. University Hospitals of Cleveland (Cuyahoga County Court of Appeals, 5/7/09) [PDF] concluded differently.

Rongers, a night-shift sergeant at University Hospitals, was prescribed a beta blocker following a heart attack. According to Rongers, the medication “made him light-headed and tired. He had difficulty sleeping during the day and difficulty staying awake during his work hours.” Thus, he took naps “when needed.” He admitted that he napped while on duty five or six times, sometimes for as long as two hours at a stretch. When the hospital caught time on tape, it fired him. The court subsequently dismissed his disability discrimination lawsuit, a decision that the court of appeals affirmed:

Rongers admitted sleeping on the job meant that he was not performing his essential duties as a security guard. Rongers testified that an employer should not tolerate sleeping on the job. He said that he never held a job where it was acceptable to sleep while on duty and understood that when he did sleep on the job, he was not working. He further conceded that when he performed part-time security work outside of UH he actually discharged a member of his team for being asleep on the job. This evidence shows, as a matter of law, that Rongers could not safely and substantially perform his job duties when he required periods of sleep while on duty…. [A]n employee who requires extended periods of sleep while on the job cannot be performing the essential duties of the job.

It’s hard to argue with the result in this case, but it nevertheless makes an important point. Just because an employee has a medical condition does not mean that the employer must make an accommodation for that employee. Many conditions simply cannot be accommodated, given the nature of the job and the issue that must be addressed.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #78

Tomorrow marks the Ohio Employer’s Law Blog’s two-year anniversary. In those two years, I’ve written 604 posts (a number that looks ever more amazing to me now that I’m looking at it on the screen), amassed more than 100,000 readers, hundreds of subscribers, and made countless friends. Thanks to everyone who’s taken the time to subscribe, read, comment, email, call, link, and even disagree with me. I look forward to continuing to bring everyone the latest employment law news and information from an unabashedly pro-business slant.

My favorite story of the week comes from Jeffrey Hirsch at the Workplace Prof Blog. I’ve written before about some alternatives to layoffs, including salary reductions, reduced work schedules, and furloughs. It seems one employer has taken this idea to the extreme. Facing a need to layoff employees, and blaming President Obama for his problems, this boss selected employees for layoff by whose cars had Obama bumper stickers.

Philip Gordon at the Workplace Privacy Counsel has a Q&A on the intersection between the swine flu and workplace privacy rights.

Dan Schwartz at the Connecticut Employment Law Blog shares his own thoughts on responding to an administrative charge, which differ from mine.

The EFCA Report reports on a compromise that may be in the works, removing the controversial card check provision from the EFCA and replacing it with a shortened 21-day election period, and requiring first-contract mediation instead of binding arbitration. Also, LaborPains.org digests George McGovern’s opposition to the EFCA’s arbitration provision.

Molly DiBianca at the Delaware Employment Law Blog summarizes the new notice requirements under the FMLA’s recent regulatory change.

Where Great Workplaces Start posts some information on implementing a drug-free workplace policy.

Paul Mollica’s Daily Developments in EEO Law, discussing a recent 6th circuit disparate impact case.

Kris Dunn, The HR Capitalist, attempts to answer an age old question – when an employee resigns, should you accept or reject a two-week notice?

The Word on Employment Law with John Phillips has an interesting take on whether an employer’s refusal to hire a white supremacist would violate Title VII’s prohibition against religious discrimination.

The FMLA Blog answers whether you can terminate an employee who has asked for FMLA-leave. Point of Law succinctly provides its own answer to this question, “offer them bigger exit packages.”

Nick Fishman at the Employeescreen IQ blog discusses a potential problem in hiring – what if you cannot obtain a timely verification of prior employment because the prior employer downsized and has no one to respond to your request?

The Business of Management discusses whether management can ever really quell an employee rumor mill about layoffs.

Today’s Workplace, on the Arbitration Fairness Act and ending forced arbitration of claims.

HR World reports on the challenge of work-life balance for working moms. Meanwhile, Carolyn Elefant at the Legal Blog Watch alerts everyone to a piece that will air on 20/20 tonight about “whether the Pregnancy Discrimination Act actually hurts women by deterring businesses from hiring them to begin with.”

Finally, since Sunday is Mother’s Day, I’m sharing Michael Mislaka’s piece about how his mom made him into the employment lawyer he is today.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant

We’re well into week two of the swine flu, and this story continues to have legs. Now, the EEOC is offering its opinion on how employers can prepare for a workplace outbreak while remaining compliant with employment discrimination laws. It released two documents: Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu) and ADA-Compliant Employer Preparedness For the H1N1 Flu Virus.

The former simply reminds employers, “Title VII of the Civil Rights Act prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans.” In other words, do not discriminate against Mexicans simply because there is a slight chance they might be carrying the virus.

The latter goes more detail about how to prepare a workplace for an outbreak within the limits of the ADA. In addition to running through the general rules dealing with disability-related medical inquiries and medical exams, the agency also provides a brief, but helpful FAQ on issues such as how to ask employees about exposure, infection control practices, personal protective equipment, and telecommuting.

The most useful aspect of the EEOC’s guidance is a sample ADA-Compliant Pre-Pandemic Employee Survey. It is designed to assist employers in asking employees about factors, including chronic medical conditions, that may cause them to miss work in the event of a pandemic:

Directions:  Answer “yes” to the whole question without specifying the reason or reasons that apply to you.  Simply check “yes” or “no” at the bottom. In the event of a pandemic, would you be unable to come to work because of any of the following reasons: If schools or day-care centers were closed, you would need to care for a child; If other services were unavailable, you would need to care for other dependents; If public transport were sporadic or unavailable, you would be unable to travel to work, and/or; If you or a member of your household fall into one of the categories identified by CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65). Answer:   YES __________   NO __________

 

As I said last week, businesses should prepare for an infectious disease outbreak, but not panic over the possibility. This EEOC guidance, while not groundbreaking, does provide employers another arrow in their quiver of preparedness.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Dealing with the AWOL employee: What is “reasonable” employee notice for FMLA leave?

Lots of businesses have zero-tolerance no-call/no-show policies. Under such a policy, if an employee is AWOL from work for a predetermined number of consecutive days, that employee is considered to have abandoned his or her job and is terminated. Under such a policy, an employee is typically considered AWOL if he or she fails to call-in and report the absence prior to the start of the scheduled shift.

What happens, though, if an employee’s absence is caused by an unforeseen medical condition (to be topical, for example, the swine flu)? If the employee wants these absences to be protected by the FMLA, how much notice does the employee have to provide an employer? Or, to examine this question from the other side, when can an employer discipline or discharge an AWOL employee?

The recent amendments to the FMLA’s regulations answer these questions and provide employers with some guidance. According to section 825.303 of the FMLA’s regulations:

When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave….

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

A recent opinion letter drafted by the Department of Labor’s Wage and Hour Division [PDF] explained how these rules apply to enforcing call-in procedures:

Where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced…. Thus, in the example … of an employer policy requiring employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence.

What does all this mean for your business’s call-in procedures and no-call/no-show policy?

1. Reasonable, non-discriminatory policies will be enforced.

2. Unless an employee is completely incapacitated or otherwise unable to call-in or have someone else call-in for him or her, an employer does not have to excuse a failure to abide by the policy.

3. Call-in procedures should allow for someone other than the employee to call-in and report an unscheduled absence.

4. If an employee legitimately cannot call-in because of “unusual circumstances,” the employee must do so as soon as reasonably practical.

5. If the employee fails to follow these rules, the employer can deny FMLA leave for the absences, and discipline or discharge accordingly pursuant to its own internal rules and policies.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? How to handle an EEOC or OCRC charge

It’s no secret that in a down economy, the number of employment-related claims rise. To file a claim under any of the federal employment discrimination statutes, an employee must first file a charge with either the EEOC or the OCRC. The same does not hold true under Ohio’s parallel statute. An employee can directly proceed to court under Ohio law without first stopping at one of the administrative agencies. Yet, more and more employers are receiving discrimination charges from these agencies.

Do you know what to do when you are served with such a charge? Today, I’m sharing Business Management Daily’s 10 tips to help guide you through your next EEOC or OCRC charge, hopefully to safe, no-probable-cause, landing (with my own editorial comments, for good measure):

1. Tell the whole story

For many disgruntled employees, an agency charge is the first and only step they take against a business. Often, employees simply go away if the agency dismisses their claim, and never resurface in court. Thus, it’s important to try to nip the claim in the bud painting as complete of a picture as necessary. The agency will want to see that a legitimate business reason existed for the challenged action.

2. Use documentation

Documents supporting your version of events should be included with the response. If you omit them, the agency will likely ask for them anyway, and may think that you had a motive for not originally including them. Any documents that can verify what you say happened actually did happen will go a long way to having the charge dismissed.

3. Verify the response’s accuracy

Anything you submit to an agency can be used in a later lawsuit, which can prove damaging if the employee’s attorney can prove an untruth.

4. Highlight consistent past decisions

One of the best ways to demonstrate that unlawful discrimination did not motivate a decision is to highlight the same actions against similarly situated employees outside of the charging party’s protected class.

5. Remember, the agency doesn’t know your business

In telling your story, details about your business will help the agency understand your actions. The decision maker may not be able to readily discern the reasons why the employee’s actions merited termination without some context about your business, its operations, and its policies.

6. Maintain confidentiality

Information about the charge should be on a need-to-know basis, especially if you still employ the charging party. If the agency plans on contacting current employees as part of its investigation, let them know that they should cooperate and be honest. It also is a good idea, though, to have your attorney sit down with any witnesses ahead of time so that you have some idea what they are going to say. Remember, though, it is illegal to retaliate against an employee for cooperating in an investigation, even if they sell you down the river.

7. Be prompt and cooperative

Don’t let the agency think that you are blowing them off or stonewalling. If you need an extension, ask for it.

8. Work with legal counsel

A discrimination charge is often the first step in a chain of legal events. What you tell the agency will not only be used by agency to adjudicate the charge, but also by the employee in a later lawsuit. If you are not going to have an attorney investigate the claim and prepare the response, at least have a lawyer review a draft before you file it.

9. Contact your insurer

If your employment-practices liability policy includes discrimination charges, failing to timely let the insurer know of a charge could result in denial of coverage for the charge and all subsequent legal claims.

10. Preserve all documents

Courts are increasingly less tolerant of companies that fail to adequately preserve relevant evidence. When you receive an administrative charge, collect and preserve all documents that could be relevant. You should also suspend any routine practices that could result in the destruction of relevant records, particularly electronic information like emails.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio Senate considers compensatory time – a sensible alternative to paid sick leave

As the number of reported swine flu cases approaches 1,000 globally (a staggeringly low 0.00002% of the world’s population), Judith Warner, in the April 30 New York Times, opines that the current pandemic is exactly what we need to spur this country to adopting national mandatory paid sick leave for employees:

Our workplace policies have long been unsuited for our times…. And they’ve never looked more anachronistic than today, with more and more families forced to live on one income, and a possible pandemic in the making.

The Healthy Families Act, which would grant most workers seven paid sick days a year to care for themselves or sick family members, is soon to be re-introduced in Congress. I think it’s fair to say that it’s an idea whose time has come.

Let me suggest a real alternative to mandating that all employers grant employees paid sick days. Under current federal and Ohio wage and hour laws, it is illegal for most employers to grant non-exempt employees who work more than 40 hours in a work week compensatory time in lieu of overtime pay. Ohio Senate Bill 17 seeks to change this prohibition.

Senate Bill 17 would amend Ohio’s current wage and hour laws to “afford to private sector employers the option to offer and to employees the option to accrue and use compensatory time off.” It would give employers the ability to offer employees the choice to take compensatory time (i.e., banked time-off to use in the future) instead of being paid an overtime premium for hours worked in excess of 40 in a week. Other notable feature of this legislation include:

• An employer cannot require any employee to choose to receive compensatory time as a condition of employment, or require the use of any accrued compensatory time.
• The employee must voluntarily request to receive compensatory time.
• The request is not valid unless it is in writing or some other verifiable statement.
• The employee can withdraw the request at any time.
• Compensatory time accruals are capped at 240 hours per year.
• At the end of each year, employees must be paid an overtime rate for any unused compensatory time.

Because this change would only affect Ohio’s wage and hour laws, it would only reach those employers small enough not to covered by the federal Fair Labor Standards Act (generally those businesses with less than $500,000 in annual sales). This law would give those small businesses the ability to offer more flexible work schedules to retain or attract employees. This balanced law not only deserves serious consideration in Ohio’s legislature, but also on the federal level. If you are interested in voicing your support for this important piece of legislation, please call, write, or email your State Senator.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.