Today is “exempt employees work free” day

Even though the modern calendar contains 365 days, it actually takes 365 days and 6 hours for the earth to complete one rotation of the sun. To account for these extra 6 hours, every 4 years contains 366 days, not 365 (to be precise, it’s years divisible by 4 or 400, but not 100). This extra day is known as Leap Day (which happens to be today).

I had an entire post written for today about the wage and hour implications of this quadrennial tradition. I was going to tell you all about how exempt employees don’t really get paid for leap days, because their annual salary is based on a 365-day cycle. Then Dan Schwartz beat me the to punch. I know I’ve scooped Dan before, so I figure turnabout is only fair. Plus, when the Yankees are watching the Phils (hopefully on their televisions) hoisting the World Series trophy in October, I’ll have the one that matters anyway. Right Dan?

In the wake of a tragedy, more on humanity and human resources

Yesterday was a tragic day in Northeast Ohio. I extend my thoughts and prayers to anyone affected by the horrors at Chardon High School.

Today, Chardon’s schools are closed. Kids will be home from school. Some, because their parents will be working, will be left to deal with their grief in solitude, trying to understand and come to terms with what they witnessed. Neither the FMLA, nor any other leave law in Ohio, covers these circumstances.

Last week, I wrote about the need to put the “human” back in human resources. For any company that has employees with children who attend Chardon schools, today is great day to start down this path of humanity. Forget what the law does or does not require of your employees, and allow them the day to spend with their grieving, angry, and confused children. What you might lose in productivity your employees will repay you in gratitude and good will.

6th Circuit: Employee must know about harassment to complain about it

Berryman v. SuperValu Holdings, Inc. (6th Cir. 2/24/12) [pdf] concerns the racial harassment allegations of 11 different employees, spanning 25 years. The allegations included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. Taken together, the allegations painted the picture of a workplace rife with severe, pervasive racially hostile behavior. The problem for these 11 plaintiffs, however, was that none were personally aware of the alleged hostile environments alleged by the other 10. Thus, the Court concluded that it was improper to aggregate their allegations into one over-arching hostile work environment:

In short, a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it.

This case does not alter your legal responsibilities to respond and react to a hostile work environment. If you learn that you have employees …

• Hanging an “effigy of an African American supervisor.”
• Writing “nigger” on the floor.
• Displaying drawing of people with “large lips and nappy hair.”
• Posting “pictures of monkeys” alongside “a picture of police cars chasing O.J. Simpson.”

… you have to do something about it. You have to investigate and you have to take real and effective corrective action to stop it from continuing or happening in the future.

This case, however, illustrates an important and often misunderstood point. The law only protects employees who are exposed to a hostile work environment. It only provides a remedy to employees who know of (first-hand or second-hand) the offensive conduct. It does not provide a remedy to every employee who enjoys the coincidence of being employed in a workplace that happens to be hostile to others.

WIRTW #214 (the “errata” edition)

A few weeks ago I gave a presentation about legal blogging to the Ohio Women’s Bar Association Leadership Institute. During my talk the question arose of whether I’ve ever made a mistake, and, if so, how I handled it. I spoke of one incident when something I had written was incorrect. I also spoke of the importance of transparency with my readers, and my willingness to fall on my sword and admit that I was wrong (my wife will tell you this isn’t always easy for me).

Today is post number 1,365 (yikes). When you write as much as I do, something is bound to fall through the cracks every now and again. An astute reader pointed out an omission from Monday’s post on holiday pay. I wrote that because paid holidays are discretionary, there is no legal requirement that you have pay non-exempt employees for holidays off. That statement is true, but not if you pay the non-exempt employee a fixed salary pursuant to a fluctuating workweek calculation. In that instance, you must pay the employee for any holidays off, or risk the fluctuating workweek status and the overtime calculation benefits that come with it. For more on the fluctuating workweek, I recommend Robert Fitzpatrick’s excellent white paper [pdf] on the topic.

The way I figure it, I’m batting .999, MVP-like numbers no matter how you slice it.

Here’s the rest of what I read this week:

Discrimination

• Has the Expanded Definition of Disability under the ADAAA Gone Too Far? — from Russell Cawyer’s Texas Employment Law Update
• With DSM-5 on the Way, Is It Time to Update Definition of “Mental Disability”? — from Dan Schwartz’s Connecticut Employment Law Blog
• Supervisor’s advice to sexually-harassed employee: “Pray…” — from Eric Meyer’s The Employer Handbook Blog
• Asking for a doctor’s note explaining a health-related absence can violate the ADA — from Warren & Associates Blog
• Employee’s inability to work overtime is not a per se disability under the ADA — from Employment Law Matters
• 12 Tips to Lower Legal Bills, Assist Lawyer in Employment Disputes — from HR Hero Line
• Lent, Catholicism, Religious Accommodations — from LaborRelated
• Title VII and Contraceptive Coverage — from The Proactive Employer Blog
• Why Genetic Discrimination Is Illegal — from Time

Social Media & Workplace Technology

• Social Media Policies: The Latest — from Manpower Employment Blawg
• Tech Co Daxko’s Social Media Policy Like TV’s Tattoo — from Fistful of Talent
• Why corporate Facebook policies are stupid — from Jay Shepherd’s Gruntled Employees
• Social Media And The Fight To Be First — from Social Media Employment Law Blog

HR & Employee Relations

• Employee Handbooks Revisited: Damned If You Do, Damned If You Don’t — from Mike Haberman’s Omega HR Solutions
• Promoting a Culture of Security: Is It the Most Important Step in Protecting Trade Secrets? — from Trade Secret Litigator Blog
• When is it okay to quit without giving notice? — from The Evil HR Lady, Suzanne Lucas

Wage & Hour

• Exploring an Employer’s Obligations to Pay Accrued Vacation and Severance under Michigan Law — from Jason Shinn’s Michigan Employment Law Advisor
• When is the Minimum Wage Not the Minimum Wage? — from Stephanie Thomas at Compensation Cafe
• Another Call Center Case Focuses On Off The Clock Working Time — from Wage & Hour - Development & Highlights
• IRS to Employers: Raise Your Hand If You’ve Misclassified Workers — from Delaware Employment Law Blog
• Summary of 2011 FMLA Cases: Valuable Resource to Employers — from Jeff Nowak’s FMLA Insights
• Stephen Colbert Provides Reminder That Family Medical Leave Is Not A Laughing Matter — from California Employment Law Report
• DOL’s “Updated” FMLA Forms List New 2015 Expiration Date — from New York Labor and Employment Law Report

Labor Relations

• By George! Here’s an angle on NLRB/social media that I bet you haven’t thought of — from Robin Shea’s Employment and Labor Insider
• Research Reveals How Labor Unions Use Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• Your Position at the Bargaining Table May Open the Door to a Broad Request for Information From the Union — from Trade Secret / Noncompete Blog

NLRB refuses to expand representation rights to non-union employees during investigatory interviews

The NLRB’s Acting General Counsel continues to try to chip away at the rights of non-unionized employers. His latest involves an attempt to expand Weingarten rights to non-unionized employees. What are Weingarten rights, you ask? They are the rights of employees to have union representation during an employer’s investigatory interview. In 2000, the Clinton-era NLRB expanded these rights to employees at non-unionized workplaces. Unsurprisingly, non-union employers lost their collective minds. Less than four years later, however, George Bush’s NLRB restored sanity by reversing that ruling and again limiting Weingarten rights to union shops only. It was only a matter of time before someone tried to swing the Weingarten pendulum again. This time, however, the NLRB didn’t take the bait.

In Praxair Distribution, Inc. (2/21/12) [pdf], the NLRB’s Acting General Counsel argued that the employer denied a non-union employee his Weingarten rights when it refused to allow him to make a phone call in connection with an investigatory interview. The NLRB clearly and unequivocally refused to expand the protections of Weingarten to non-union employees:

Under existing case law, Weingarten rights do not apply to unrepresented workers such as the employees of the Praxair operation involved here.

Now, if we can only get the Board to rein in its Acting General Counsel on the scope of appropriate workplace social media policies, we’ll really have something to celebrate.

Sitting on the dock … of the paycheck (or how to lose an employee’s exemption in 1 easy step)

The hallmark of the key exemptions under the Fair Labor Standards Act (administrative, executive, and professional) is that the exempt employee must be paid a salary of at least $455 per week. An employee is paid on a salary basis when the employee receives the same amount of pay each pay period, without any deductions. For this reason, if you take deductions from an exempt employee’s weekly pay, you place their exemption at risk. This error could prove costly. The lost exemption does not only apply to the employee against whom the deduction was taken, but also to all employees in the same job classification working for the same managers responsible for the deduction.

Yesterday, in Orton v. Johnny’s Lunch Franchise, LLC [pdf], the 6th Circuit illustrated the implications of these rules. Johnny’s Lunch employed Orton as a vice president, at an annual base salary of $125,000. The employer suffered from financial difficulties and was unable to make its payroll. Thus, from August 2008 until Johnny’s Lunch laid off the entire executive staff on December 1, 2008, Orton worked without receiving any pay. The 6th Circuit concluded that the employer’s failure to pay Orton his full salary for those four months eradicated the exemption, which, in turn, put the employer on the hook not only for Orton’s unpaid salary, but also any overtime he worked during those months.

The Court started by defining the scope of an “improper deduction” from an employees salary: “An employer who makes improper deductions from salary shall lose the exemption if the facts demonstrate that the employer did not intend to pay employees on a salary basis.” 29 C.F.R. § 541.603(a). The Court concluded that Orton’s employment agreement (which established his annual salary) was irrelevant to the issue of whether he lost his exemption: “The question is therefore not what Orton was owed under his employment agreement; rather, the question is what compensation Orton actually received.” Because Orton did not receive his full salary for the weeks in question, he lost his exemption.

All of this begs the question — what is an employer to do if it cannot afford to pay an otherwise exempt employee his or her full salary, and needs to make deductions to keep the doors open? The 6th Circuit answered this question, too:

That is not to say a company with cash flow issues is left with no recourse. Nothing in the FLSA prevents such an employer from renegotiating in good faith a new, lower salary with one of its otherwise salaried employees. The salary-basis test does not require that the predetermined amount stay constant during the course of the employment relationship. Of course, if the predetermined salary goes below [$455 per week], the employer may be unable to satisfy the salary-level test, which explicitly addresses the amount an employee must be compensated to remain exempt.

I firmly believe that employers should not pigeonhole legal issues and business issues. Sometimes (like with social media and the NLRB) business issues impact and guide legal decisions. In this case, the legal issues must guide the business decision. The the legal issues surrounding the proper payment of an employee’s salary under applicable wage and hour laws and regulations directly impact the business issues of remaining solvent. An employer cannot navigate that business decision without understanding and accounting for the legal implications of failing to pay exempt employees their salaries.

Putting the “human” back in human resources (or, how the FMLA covers life-support decisions)

On April 4, 2006, Jerry Romans Plaintiff received a call at work from his sister, who told him that his terminally ill mother was unlikely to survive the night, and decisions needed to be made about whether to keep her on life support. Prior, Romans had submitted paperwork to his employer certifying that he was a health care provider and power of attorney for his mother. He intended to go to the hospital immediately after his shift, which was scheduled to end at 11 p.m. His employer, however, told him to work a double shift to cover for an employee on the next shift who had called off. Romans told his supervisor, “I’m not staying. My mom’s dying. I’m leaving,” but the supervisor responded, “I’ll have you fired if you leave.” Romans nevertheless punched out, left the facility, and drove to the hospital.

In his subsequent lawsuit, Romans challenged that the one-day suspension he received for “leaving the facility and abandoning his shift” violated the FMLA. In Romans v. Michigan Dep’t of Human Servs. (2/16/12) [pdf], the 6th Circuit agreed. The court pointed out that the FMLA’s regulations provide that an employee who is “needed to care for” a family member is entitled to FMLA leave. That “care” can be either psychological comfort or physical care, and includes arrangements for changes in care. The 6th Circuit concluded that “a decision regarding whether an ill mother should stay on life support would logically be encompassed by ‘arrangements for changes in care.’” Applying a common sense (and, dare I say, human) interpretation of the FMLA, the court added, “To be sure, this is the kind of decision, like transfer to a nursing home, that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

To often, we, as lawyers, business owners, HR professionals, and the like, become too caught up in what the law allows us to do or forbids us from doing. When you focus too much on the legalities of a personnel decision, you risk losing focus on the humanities of the situation. This case illustrates 1) that the law, every now and again, lets employers make humane personnel decisions, and 2) bad things happen when businesses ignore the golden rule of employment relations.