Do you know? Mandatory overtime

We should all know that any hours a non-exempt employee works in excess of 40 in any given week must be paid at a premium rate of one and one-half times the regular rate of pay. But, do you know whether there are any laws that inhibit an Ohio employer’s right to require that employees work more than 40 hours in a week?

The answer is no. An Ohio employer can legally require that its employees work overtime. There are no federal or Ohio laws that prohibit or otherwise limit the right of an employer to require its employees to work as many hours as an employer sees fit. Thus, an employer can require its employees to work more than eight hours in day and more than 40 hours in a week, without restriction. As extreme as it may seem, an employer can require an employee to work 24 straight hours, or work 80 or more hours in a week. Moreover, if an employee refuses to work overtime, an employer can discipline that employee, up to and including termination.

The only restriction placed on overtime work is that it must be paid at the statutory premium rate. Now, retaining employees that you require to work 20 hours a day or 80 hours week after week is another question entirely…

DOL publishes FAQ on furloughs and other reductions in pay and hours worked issues

While the economy is beginning to show signs of slowing turning around, businesses are still turning to employee furloughs and other alternative work schedules as a means to save costs and jobs. I’ve previously written on some of the wage and hour issues employers need to mind in implementing a furlough program. See Risks abound for businesses considering unpaid time off to save costs. The Department of Labor has now stepped into the fray and has published Frequently Asked Questions Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues [PDF]. According to the DOL, its guide is “intended to answer some of the most frequently asked questions that have arisen when private and public employers require employees to take furloughs and to take other reductions in pay and / or hours worked as businesses and State and local governments adjust to economic challenges.”

If you are still considering implementing a furlough program or other alternate work schedule, this FAQ is a good starting point to helping you navigate the maze of wage and hour laws that impact your decision. Because of the complexity of these issue, I still recommend consulting with employment counsel before final implementation.

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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 #89

This week’s highlighted post is courtesy of Dennis Westlind at World of Work. Dennis brings us a link to an online game, Card Checked: The Game. Card Checked takes you to a post-EFCA world in which union organizers try to intimidate you into signing an authorization card. Threats are made, windows are smashed, laws are broken, and in the end … well, play the game and find out whether your tattoo parlor ends up unionized.

Workplace Horizons reports that Labor Secretary Hilda Solis intends to enforce “wage and hour laws more aggressively to ‘send a message’ to employers that they must comply with federal minimum wage, overtime, and other requirements.” Yet another reason to conduct that internal audit.

The Word on Employment Law with John Phillips shares his thoughts on reverse age discrimination.

Arkansas Employment Law compiles some links from around the web discussing how to handle workplace harassment.

Sindy Warren at the Warren & Hays Blog digests a recent 4th Circuit decision that discusses the different of remedial measures versus effective remedial measures in a sexual harassment case.

Dan Schwartz at the Connecticut Employment Law Blog offers some information on what employers should be doing about texting while driving.

Jonathan Turley's res ipsa loquitur blog, courtesy of Rush Nigut’s Rush on Business, details the story of an employee terminated because of his wife’s work as an adult film star.

Michael Haberman’s HR Observations talks about the treatment of employee bonuses for overtime purposes.

Mindy Chapman’s Case in Point discusses under what circumstances an employer has to accommodate the needs of a diabetic employee.

Jason Shinn’s Defending the Digital Workplace discusses a case in which a group of terminated employees were awarded punitive damages based on their employer’s surreptitious access of their MySpace pages.

The Washington Employment Law Blawg presents the top 10 most common employee handbook mistakes. When reviewing your handbook, add this list to my earlier list of 8 common employee handbook mistakes, and how to avoid them.

The EBG Trade Secrets & Noncompete Blog asks a very good question – where is the line between competing and preparing to compete? If an employee is merely engaged in the latter, he or she likely is not violating a noncompete agreement.

Finally, I Hate People...But It’s Nothing Personal, on the art of saying “No.”

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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.

A short rant, and a lesson on employee appreciation

I’m always happy to answer an email or a phone call from a reader. Yesterday, I received an email from someone asking me a question about something I wrote in a publication called What’s Working in Human Resources. The problem is, I never wrote anything for What’s Working in Human Resources. I googled the publication, and discovered two things: its published by Progressive Business Publications out of Malvern, PA, and its publications are not available online. The emailer graciously forwarded me a copy of the article. What I discovered frankly shocked me. What’s Working in Human Resources had “borrowed” content from a post I wrote earlier this year, and made it look like I had given an interview.

Now, I’m all for free publicity, and I am happy to talk to any reporter who is looking for a quote on an employment law issue. All you have to do is ask. Just this year I’ve been quoted in the Wall Street Journal, Business Insurance Magazine, and the National Law Journal, to name a few. What bothers me is that my content was borrowed without my permission, and passed off as if I had spoken to this publication.

In response to my email asking that Progressive Business Publications cease using my content without my permission, I received the following:

We’ll be happy to comply with your wishes.

I’d like to point out, however, that we classified you as an expert and provided contact information where our readers might avail themselves of your wisdom. We find most employment lawyers think that’s a good thing.

Apparently, being called an “expert” is supposed to compensate me for the copyright violation.

From this tale, which consumed way too much of my time and energy yesterday, what lesson can employers learn? Give credit where credit is due. One of the easiest ways to make an employee feel undervalued and put that person at risk of leaving an organization is for management to take that employee’s ideas and hard work and pass it off as its own. Proper attribution and credit is easy to give, and usually goes a long way to making employees feel appreciated.

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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.

Nashville jury rejects associational harassment claim

If a white employee stands up for her black co-workers, and is then ostracized and called racially-charged names because of it, is she entitled to compensation for the alleged harassment? According to one Nashville jury, the answer is no.

In Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the 6th Circuit determined that an employee cannot pursue a claim for retaliation based solely upon a relationship to a co-worker who engages in protected activity. The court also remanded for trial the racial harassment claim of one of the plaintiffs, Treva Nickens. She claimed that after she spoke out in favor of black co-workers who had filed a race discrimination suit against Whirlpool, she faced routine racist slurs and graffiti (such as being called a “nigger lover”), was told that she should stay with her own kind, was disciplined more harshly than whites, and was passed over for a promotion. According to The Tennessean, the jury rejected Nickens’ associational harassment claim.

Despite the jury’s verdict on the specific facts presented by Nickens, the law remains that harassment as a result of one’s association with or advocacy for protected employees is just as unlawful as harassment directed at a member of a protected class.

Even though Whirlpool escaped liability in this case, employers should not read this verdict as a license to permit harassment against employees associated with employees in a protected class. Employers must treat all allegations and complaints of harassment seriously. Investigations should be timely and thoroughly completed. Policies should be reviewed and reinforced. Appropriate corrective action should in instituted where warranted.

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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? Employers can communicate directly with employees’ health care providers for FMLA certifications

The recent changes to the FMLA’s regulations make it that much easier for employers to gather information about the medical need for an employee’s FMLA leave of absence. If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous, or non-responsive), an employer is now entitled to request additional information directly from the employee’s health care provider.

This ability, however, has certain key limitations:

1. Before an employer can directly contact the health care provider, it must first advise the employee, in writing, of the deficiency in the certification and provide at least seven days for the employee to cure.

2. Thereafter, an employer can directly contact an employee’s health care provider solely for purposes of clarification (to understand the handwriting on the medical certification or the meaning of a response) or authentication (verification that the health care provider completed or authorized the completion of the certification form).

3. Contact, however, is limited to an employer’s own health care provider, a human resources professional, a leave administrator, or a management official.

4. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

5. Employers may not ask health care providers for additional information beyond that required by the FMLA certification form (including diagnostic information).

6. While an employee must give his or her written authorization before the employer can make contact with the health care provider, the employee’s failure to consent entitles the employer to deny the FMLA request.

7. The standard rules of confidentiality of employee medical information still apply.

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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.

Federal minimum wage increases, but does it matter to Ohio’s employers?

On July 24, the federal minimum wage rate increased to $7.25 per hour. However, as of January 1, 2009, Ohio’s minimum wage raised to $7.30 per hour. Thus, the new federal minimum wage has no effect except on the smallest of Ohio’s employers. Those businesses that gross less than $267,000 annually must comply with the $7.25 per hour rate. Ohio’s minimum wage will increase again on January 1, 2010 (and again on each January 1 thereafter) by the average rate of inflation for the prior September to September 12-month period.

Ohio is one of 14 states (including the District of Columbia) with a minimum wage higher than the federal mandate. Feel free to debate the effect of higher wage rates on business growth and development in the comments. The bottom line for most Ohio businesses is that the higher federal minimum wage simply does not matter.

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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.