Today’s guest post comes from Jeff Wilcox, an associate at the Hill Ward Henderson firm in Tampa. He will be presenting at the Florida Law Alliance Fall Employment Law Conference taking place on Friday, November 10, 2017 (see below for more details):

Are you making deductions from your exempt employees’ pay? If so, you may lose the right to classify the employee as exempt and, as a result, may end up owing the employee overtime pay for all overtime hours worked over the last two, or possibly three, years.

As a general rule, the Fair Labor Standards Act (FLSA) does not permit deductions from an exempt employee’s salary, because the salary cannot be dependent on the number of days or hours he or she works, or even the employee’s quantity or quality of work. There are, however, limited exceptions where deductions can be made. For example, if the employee is absent from work for one or more full days for personal reasons, a deduction is permissible. Moreover, if the employee is absent from work for one or more full days for sickness or disability, and the deduction is made in accordance with a bona fide “sick leave” plan, policy, or practice, a deduction is again permissible. Other limited exceptions exist, and it is important for employers not to deduct from an exempt employee’s salary unless one of the exceptions applies.

Join us in Fort Lauderdale in November

Continue Reading Deductions From Employees’ Salaries May Lead to Liability

If you are like me, you have been focused on all things weather-related the last day or two. In Southwest Florida, we are firmly stuck in the “cone of uncertainty” in the path of Hurricane Irma, a storm the weather-folks keep calling “potentially catastrophic.”  There were even rumors of a Jim Cantore sighting in Fort Myers yesterday…and anyone who has lived in Florida for a hurricane season or two knows what that means!

I know many of you are working on storm preparations, which, with a storm of this magnitude, naturally means you are faced with potential workplace closures. If the number of questions I received yesterday is any indication, there is a lot of uncertainty about when and how to pay employees if your business closes before and/or after the storm.

Impact of Workplace Closure on Payroll

Continue Reading Cone of Uncertainty: Wage/Hour Concerns in the Path of Hurricane Irma

I can’t tell you how many times I’ve been asked in the last few weeks:  is there any chance the new overtime rule will go away or at least be postponed to sometime after December 1?  Well, apparently the answer is…

YES!  Yes.  Yes.  The answer — much to my surprise — is YES, the overtime change is NOT happening December 1.

A federal court in Texas just entered a nationwide injunction, enjoining the Department of Labor’s Final Rule, which was set to make sweeping changes to the white collar exemptions beginning December 1.  Yes, nationwide.  Injunction.  December 1 change, done.  Gone.  If you want to read the opinion, click Nevada v DOL Injunction.

So what does this mean for employers?  For employees?  It means there is no change happening December 1.  For now, the salary level remains at $455/week, or $23,660/year.  Will it happen someday?  Who knows.  The likelihood of it happening under a Republican White House, Senate, and House is, in my opinion, quite slim (at least in its current form).  Once we have had a chance to digest the decision and its effects, we will be back with more information.

I’m not sure what to say right now other than WOW.

The moment we have all been waiting for (dreading?) has arrived — the Department of Labor issued its “Overtime” Final Rule.  The details are available on the DOL’s website, with the “official” Final Rule to be published in the Federal Regulations tomorrow.

As anyone who follows HR or employment law knows, this Final Rule has been highly anticipated — not to mention hotly debated — due to what is essentially a complete overhaul of the salary basis portion of executive, administrative, and professional overtime exemptions.  We now know:

  • The new minimum salary basis is $913/week or $47,476/annually.
  • The highly compensated employee salary basis jumps to $134,004/annually.
  • The salary basis will be “automatically” updated every three years, beginning January 1, 2020.
  • Employers may now use nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10 percent of the salary basis.
  • Perhaps most importantly, the effective date of the Final Rule is December 1, 2016.

To me, what stands out the most is the effective date — it gives employers much more time to adopt the new regulations than most people anticipated (some suspected it would be as few as 30 days).  So, that’s good news for the thousands of employers who will be impacted by these changes.  Also notable? The DOL did not make any changes to the duties test for any of the exemptions.

Once we have a chance to fully digest the Final Rule, we will be back with additional updates.   In the meantime, check out the DOL’s Questions and Answers section and Fact Sheet for additional information.  You can also comment on this post or email me directly if you have questions.  Stay tuned!

radical color copyWe are excited to announce that Suzanne Boy will be presenting at the Florida Law Alliance Employment Law Conference, taking place on Thursday, November 12, 2015 at the law offices of Hill, Ward & Henderson in Tampa, Florida. Henderson Franklin is a member of the Florida Law Alliance, a group of six independent law firms practicing throughout Florida. The firms have combined their knowledge, efforts, and resources to increase efficiency, lower costs, expand the scope and improve the quality of legal services each firm provides to its own clients.

Topics and Speakers

Avoiding and Defending Wage and Hour Class and Collective Actions presented by Attorney Craig Salner from the Clarke Silverglate firm in Miami. Employers know that the only lawsuit you win is the one that never gets filed. In the case of wage and hour litigation, this is particularly true of collective actions under the Fair Labor Standards Act (“FLSA”) and class actions under State law counterparts. This presentation will focus ways to defend class and collective actions or better yet, avoid them altogether. Continue Reading LGBT, Social Media and EEOC Charges to be addressed at Fall Employment Law Conference

I am very excited to announce that Paul Dean, a local investigator with the Department of Labor (DOL), will speak at next week’s SHRM SWFL meeting about various wage/hour issues. No, I am not excited because my favorite group of HR professionals plans to throw food at Paul (if you’re reading this, Paul, I promise we won’t do that!). I am excited because this is an excellent opportunity for employers to learn straight from the DOL – the agency charged with enforcing the ever-changing and ever-dangerous wage/hour laws. Paul will address important issues that impact nearly all businesses, including exemptions from overtime, record-keeping requirements, deductions, and tip credit issues.

The meeting is Wednesday, August 12, 2015 at Crowne Plaza Bell Tower. Registration begins at 11:00. $21.00 for SHRM SWFL members, $25.00 for non-member. Click here to register: http://hrmaswfl.shrm.org/events. I hope to see you there!

Image courtesy of wikimedia commons

8230562364_710b5ef675_mFootball fans around the globe may be rejoicing at the official start of the NFL season, but the cheering may be somewhat less than usual this year. That’s because a number of current and former NFL cheerleaders have filed lawsuits in Florida, New Jersey, New York, California and other states for violations of state and federal wage and hour laws, including the Fair Labor Standards Act (FLSA). The cheerleaders are claiming they were significantly underpaid—or in some cases not paid at all—for their services, which include performing during games, rehearsing prior to games, and attending community events. Teams that have been sued include the Tampa Bay Buccaneers, New York Jets, Buffalo Bills, Oakland Raiders and Cincinnati Bengals.

In the Florida Complaint, plaintiff Manouchcar Pierre-Val filed a proposed federal class action seeking to represent a class of cheerleaders who worked for the Tampa Bay Bucs within the last three years, and who were allegedly not compensated at the required minimum wages due under the FLSA. The lawsuit claims that the cheerleaders were paid only $100 per game for an average of 8 home games per season, plus limited wages for appearances made at paid corporate events. However, according to the complaint, the cheerleaders actually worked many more hours each week and each year for which they were not properly compensated as required by federal and Florida law. Plaintiff Pierre-Val alleges she received about $2.00 per hour for all of her services.

Continue Reading Football Season Off to a Litigious Start

Consider this scenario:newborn - flickr cc gabi_menashe

Eve is employed as a counter person at Cars-R-Us, an auto parts store with twenty employees. Eve recently returned to work after giving birth. She asked Cars-R-Us for periodic breaks to express her breast milk. She also asked the company provide her with a dedicated, private room to use her breast pump.

Which of the following statements is correct?

A.  Cars-R-Us can deny Eve’s request because it has less than 50 employees.

B.  Cars-R-Us can deny Eve’s request unless she has worked for the Company more than 1,250 hours during the consecutive twelve-month period preceding her request.

C.  Cars-R-Us should permit Eve reasonable lactation breaks, but it may require her to use the women’s bathroom to express milk.

D.  Cars-R-Us should permit Eve to take a reasonable lactation break in a private location, unless to do so would pose an undue hardship.

Continue Reading Employment Law IQ: Nursing Mothers in the Workplace

clock flickr katerhaTravel time is one of the most hotly contested issues under the FLSA. This week we will test your employment IQ on compensable travel time.

Scenario. Timmy Tee is employed as a non-exempt public relations coordinator for Go Gators Enterprises. Timmy’s regular work schedule is 8:00 a.m. to 5:00 p.m., Monday through Friday. Go Gators Enterprises requires Timmy to attend a two-day marketing conference in Atlanta, Georgia. Timmy travels by bus on Wednesday, from 10:00 a.m. to 4:00 p.m. Timmy returns home by bus on Saturday, traveling from 2:00 p.m. to 8:00 p.m.

Which of the following statements is correct?

A.  Go Gators Enterprises must pay for all of Timmy’s travel time, since it required him to attend the marketing conference.

B.  Go Gators Enterprises must pay for the Wednesday bus trip, since these hours cut across Timmy’s normal work hours.

C.  Go Gators Enterprises must pay for the Saturday travel between 2:00 and 5:00 p.m., the travel time which cuts across Timmy’s normal work hours.  This is required even though Timmy does not normally work on Saturdays.

D.  Both B and C are correct.

Continue Reading When Is Travel Time Compensable?

When President Franklin D. Roosevelt signed the Fair Labor Standards Act of 1938 (FLSA) into law, it was a landmark and welcome law that originally only applied to about 20% of the labor force (mostly factory workers). The law banned oppressive child labor, set minimum wage at 25 cents per hour, and set a maximum workweek at 44 hours.

Over the past 75 years, the FLSA has morphed into a complex and highly-litigated area of the law that regulates nearly all workplaces. It is now almost universally despised by employers. Decades of amendments have made the FLSA so expansive it requires multi-volume sets of legal treatises to fully comprehend, its nuances ensure almost no employer can fully comply, and plaintiffs’ attorneys crank out lawsuits by the dozens, knowing a single dollar owed entitles them to recover all of the attorney’s fees spent prosecuting the case.

Continue Reading A Labor Day Toast to Seven Subjects the FLSA Does Not (Yet) Regulate