Presenter:Kevin M. Kinne, Cohen Kinne Valicenti & Cook LLP

ONE BEACON - TACONICONE BEACON - TACONIC

EMPLOYMENT AT-WILLEMPLOYMENT AT-WILL

Three-Part Test◦ Free of direction and control, ◦ Outside usual business, and◦ Independent business

Misclassification◦ Workers lose public benefits◦ State loses revenue◦ Substantial penalties

INDEPENDENT CONTRACTORINDEPENDENT CONTRACTOR

INDEPENDENT CONTRACTORSINDEPENDENT CONTRACTORS

•Do not have to withhold income taxes

•Do not have to withhold and pay social security

•Do not have to withhold and pay medicare taxes

•No workers’ compensation

•No unemployment taxes

WHY USE INDPENDENT CONTRACTORS?WHY USE INDPENDENT CONTRACTORS?

Immune from minimum wage, overtime and record keeping requirements

Immune from claims of civil rights violations under Title VII, ADEA and ADA

FLSA does not define work◦ Suffer or permit to work◦ Require or allow to work◦ Volunteer is a trap

Employer knowledge◦ Can’t bury head in sand◦ Non-entered time counts

IDENTIFYING WORK TIMEIDENTIFYING WORK TIME

WORKING TIMEWORKING TIME

All time required to be on employer’s property, on duty or at a specific work site

Work before and after the normal shift

THE WORK DAY NEVER ENDSTHE WORK DAY NEVER ENDS

•Is an employee who checks his smart phone at home entitled to overtime compensation?

•If an employee engages in work-related email at home, on her own volition, must she be paid for it?

•Does an employee’s use of a cell phone or iPhone after-hours constitute hours worked?

REPORTING PAYREPORTING PAY

When an employee:•Is scheduled to work at least 3 hours,•Reports to work on time, and•Is not provided with the expected hours of work

The employee must be paid for at least 3 hours at no less than the minimum wage (but at regular rate for hours actually worked)

TRAVEL TIMETRAVEL TIME

Travel between home and work is not paid

Travel time during a work day must be paid

Report to a different site:•Paid all excess travel time and expenses

Is the action integral and indispensible?◦ Compare it to principal activity

Does it benefit employer?◦ Required by employer◦ Necessary to perform task

PRE & POST LIMINARYPRE & POST LIMINARY

PREPARATORY TIMEPREPARATORY TIME

Booting up a computer and logging into work programs Bus driver inspecting the bus before the start of the shift Electricians loading their trucks Filling out time sheets Checking job locations Picking up plans for the day's work Waiting for work after punching in Office opening procedures

MEAL BREAKSMEAL BREAKS

30-minute break if more than 6 hours of work

Must be free to leave the workplace and free of responsibilities

Employee can give up the meal break voluntarily, but must be paid for time worked

Coffee Breaks◦ Not legally required◦ Discretion of the supervisor

Smoking Breaks◦ Not legally required◦ Discretion of the supervisor

COFFEE AND SMOKING BREAKSCOFFEE AND SMOKING BREAKS

Counted as hours worked◦ Time is controlled by employer ◦ Employee cannot use time for

his/her own purposesNot counted as hours

worked◦ Completely relieved of duty◦ Long enough for employee to

use for own purposes

WAITING TIMEWAITING TIME

ENGAGED TO WAIT V. WAITING TO BE ENGAGEDENGAGED TO WAIT V. WAITING TO BE ENGAGED

Chao v. Akron Case

Drinking coffee, hanging out at the water cooler and socializing before the day was considered compensable time because the employer required the employee to be present at facility before leaving for job sites

On-call time is hours worked when◦ Employee has to stay on the employer’s premises, or◦ Employee has to stay so close to the employer’s

premises that the employee cannot use that time effectively for his or her own purposes

On-call time is not hours worked when◦ Employee is required to carry a pager◦ Employee is required to leave word at home or with

the employer where he or she can be reached

ON-CALL TIMEON-CALL TIME

TRAINING TIMETRAINING TIME

Time employees spend in meetings, lectures, or training is considered hours worked and must be paid, unless:

•Attendance is outside regular working hours•Attendance is voluntary•The course, lecture, or meeting is not job related•The employee does not perform any productive work during attendance

For non-exempt employees◦ More than 40 hours worked ◦ During a workweek◦ 1.5 times regular hourly rate◦ For all hours in excess of 40◦ No Comp Time

OVERTIMEOVERTIME

The Overtime Affair The Overtime Affair

COMMON FLSA ERRORSCOMMON FLSA ERRORS

•Assuming all salaried employees are not due overtime

•Improperly applying an exemption

•Not paying for hours “suffered or permitted” to work

•Limiting the number of hours employees can record

•Treating an employee as an independent contractor

•Confusing Federal law and State law

WATCH OUT WALMARTWATCH OUT WALMART

Massachusetts - Court approves $40 million settlement for 67,000 hourly workers forced to work off the clock and forfeit breaks

New Jersey – Court approves settlement of FLSA suit of up to $28 million for hourly workers

Pennsylvania - Judge approves jury verdict of $185 million in state wage and hour lawsuit by workers forced to work off clock and forfeit breaks

BIG COMPANIES – BIG CASESBIG COMPANIES – BIG CASES

Amex – Call center employees required to work off the clock and through lunch without pay

Starbucks – Assistant managers misclassified as exempt employees

Smith & Wollensky – Popular New York steak house servers recover for unpaid overtime and improper retention of tips

Tyson Foods – Failure to pay hourly employees for cleaning equipment, start up time and donning and doffing uniforms

Novartis – Pharmaceutical sales reps challenged outside sales and administrative exemptions.

TOP TEN REASONS FOR WAGE LAWSUITSTOP TEN REASONS FOR WAGE LAWSUITS

10. Failure to compensate employees for training time

9. Failure to compensate employees who “volunteer” their time

8. Failure to include extra compensation in overtime pay

7. Failure to pay employees for short breaks

6. Failure to pay employees who work through lunch

5. Docking time for employees working on the clock

4. Failure to pay employees working off the clock

3. Misclassification of employees as independent contractors

2. Misclassification of employees as exempt employees

1. Treble damages and attorneys’ fees

Tom earns a “salary”, he is not eligible for overtime. Only “hourly” employees are eligible for overtime.

Janice is a Manager. Managers are not eligible for overtime.

Pat makes a lot of money, he shouldn’t be paid overtime if he has to spend a little extra time getting the job done.

Karen should have been paid a few hours of overtime. We will just make it up to her with comp time.

Butch was late to work again. That’s it, I’m docking his pay for every minute that he arrives after 9:00 AM.

COMMON MISUNDERSTANDINGSCOMMON MISUNDERSTANDINGS

Temps◦ Meet short-term needs ◦ Avoid costs of employee◦ Not a long-term solution◦ Not a recruiting tool

TEMPORARY EMPLOYEESTEMPORARY EMPLOYEES

Topics of Discussion:

Employer Coverage and Employee EligibilityQualifying Reasons for LeaveAmount of LeaveEmployer Rights and ResponsibilitiesEmployee Rights and ResponsibilitiesMilitary Family Leave Provisions

Private sector employers with 50 or more employees

Williams College qualifies

Employed by covered employer

Worked at least 12 months

Have at least 1,250 hours of service during the 12 months before leave begins

Employed at a work site with 50 employees within 75 miles

• Because of a qualifying reason arising out of the covered active duty status of a military member who is the employee’s spouse, son, daughter, or parent (qualifying exigency leave)

• To care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (military caregiver leave)

Military FamilyLeave

Eligible employees may take FMLA leave:• For the birth or placement of a child for adoption or foster care • To care for a spouse, son, daughter, or parent with a serious health

condition• For their own serious health condition

Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Parent for FMLA purposes does not include in-laws.

Spouse - A husband or wife as defined under state law, including common law marriage where recognized.

Son or Daughter - For leave other than military family leave, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability.

Both the mother and father are entitled to FMLA leave for the birth or placement of the child and/or to be with the healthy child after the birth or placement (bonding time)

Employees may take FMLA leave before the actual birth, placement or adoption

Leave must be completed by the end of the 12-month period beginning on the date of the birth or placement

Illness, injury, impairment or physical or mental condition involving:

• Inpatient Care, or

• Continuing Treatment by a Health Care Provider

An overnight stay in a hospital, hospice, or residential medical facility

Includes any related incapacity or subsequent treatment

Continuing Treatment by a Health Care Provider

• Incapacity Plus Treatment

• Pregnancy

• Chronic Conditions

• Permanent/Long-term Conditions

• Absence to Receive Multiple Treatments

Incapacity Plus Treatment

Incapacity of more than three consecutive, full calendar days that involves either:

Treatment two times by HCP (first in-person visit within seven days, both visits within 30 days of first day of incapacity)

Treatment one time by HCP (in-person visit within seven days of first day of incapacity), followed by a regimen of continuing treatment (e.g., prescription medication)

Pregnancy

Incapacity due to pregnancy or prenatal care

Chronic Conditions

Any period of incapacity or treatment due to a chronic serious health condition, which is defined as a condition that:

requires periodic visits (twice per year) to a health care provider for treatment

continues over an extended period of time

may cause episodic rather than continuing periods of incapacity – migraines, asthma, epilepsy, diabetes

Permanent/Long-Term Conditions A period of incapacity which is permanent or long-

term due to a condition for which treatment may not be effective – stroke, terminal disease, alzheimer’s

Absence to Receive Multiple Treatments

For restorative surgery after an accident or other injury, or

For conditions that, if left untreated, would likely result in incapacity of more than three consecutive, full calendar days

Employee’s workweek is basis for entitlement

Eligible employees may take up to 12 workweeks of FMLA leave:

for the birth or placement of a child for adoption or foster care;

to care for a spouse, son, daughter, or parent with a serious health condition; and

for the employee’s own serious health condition.

Employee is entitled to take intermittent or reduced schedule leave for: Employee’s or qualifying family member’s serious health

condition when the leave is medically necessary

Covered service member’s serious injury or illness when the leave is medically necessary

A qualifying exigency arising out of a military member’s covered active duty status

Leave to bond with a child after the birth or placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave

• In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour

• Shortest increment may vary during different times of day or shift

• Required overtime not worked may count against an employee’s FMLA entitlement

Amount of Leave –

Intermittent Leave

“Substitution” means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply

Employees may choose, or employers may require, the substitution of accrued paid leave for unpaid FMLA leave

Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid leave are not met

Workers’ compensation leave

may count against FMLA entitlement

Disability leavemay count against FMLA entitlement

Provide notice

Maintain group health insurance

Restore the employee to same or equivalent job and benefits

Within five business days of leave request (or knowledge that leave may be FMLA-qualifying)

Eligibility determined on first instance of leave for qualifying reason in applicable 12-month leave year

New notice for subsequent qualifying reason if eligibility status changes

Provide a reason if employee is not eligibleMay be oral or in writing

Provided when eligibility notice requiredMust be in writing Notice must include:

Statement that leave may be counted as FMLA Applicable 12-month period for entitlement Certification requirements Substitution requirements Arrangements for premium payments (and potential employee

liability) Status as “key” employee Job restoration and maintenance of benefits rights

Provide Notice of Rights and Responsibilities

Group health plan benefits must be maintained throughout the leave period

Same terms and conditions as if employee were continuously employed

Employee must pay his/her share of the premium

Even if employee chooses not to retain coverage during leave, employer obligated to restore same coverage upon reinstatement

In some circumstances, employee may be required to repay the employer’s share of the premium if the employee does not return to work after leave

Same or equivalent job

equivalent pay

equivalent benefits

equivalent terms and conditions

Employee has no greater right to reinstatement than had the employee continued to work

Bonuses predicated on specified goal may be denied if goal not met

Key employee exception

Employers cannot:

• interfere with, restrain or deny employees’ FMLA rights

• discriminate or retaliate against an employee for having exercised FMLA rights

• discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA

• use the taking of FMLA leave as a negative factor in employment actions

Basic payroll information

Dates FMLA leave is taken

Hours of leave if leave is taken in less than one full day

Copies of leave notices

Documents describing benefits/policies

Premium payments

Records of disputes

Employer Responsibilities – Maintain Records

Provide sufficient and timely notice of the need for leave

If requested by the employer:

Provide certification to support the need for leave

Provide periodic status reports

Provide fitness-for-duty certification

Provide sufficient information to make employer aware of need for FMLA-qualifying leave

Specifically reference the qualifying reason or the need for FMLA leave for subsequent requests for same reason

Consult with employer regarding scheduling of planned medical treatment

Comply with employer’s usual and customary procedural requirements for requesting leave absent unusual circumstances

Employee Responsibilities –

Notice Requirements

Timing of Employee notice of need for leave:

Foreseeable Leave - 30 days notice, or as soon as practicable

Unforeseeable Leave - as soon as practicable

Employee Responsibilities –

Notice Requirements

Medical Certification for serious health condition

Submit within fifteen calendar days

Employer must identify any deficiency in writing and provide seven days to cure

Annual certification may be required

Employee responsible for any cost

Employee Responsibilities – Provide Certification

Employer (not employee’s direct supervisor) may contact health care provider to: Authenticate: Verify that the information was completed

and/or authorized by the health care provider; no additional information may be requested

Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form

Second and third opinions (at employer’s cost) If employer questions the validity of the complete

certification, the employer may require a second opinion If the first and second opinions differ, employer may require

a third opinion that is final and binding

Employee Responsibilities –

Provide Certification

RecertificationNo more often than every 30 days and with an absence

If the minimum duration on the certification is greater than 30 days, the employer must wait until the minimum duration expires

In all cases, may request every six months with an absence

More frequently than every 30 days if: the employee requests an extension of leave, orcircumstances of the certification change significantly, oremployer receives information that casts doubt on the reason for

leave

Consequences of failing to provide certificationEmployer may deny FMLA until certification is received

Employee Responsibilities –

Provide Certification

Employee must respond to employer’s request for information about status and intent to return to work

Employee Responsibilities –

Provide Periodic Status Reports

For an employee’s own serious health condition, employers may require certification that the employee is able to resume workEmployer must have a uniformly-applied policy or practice

of requiring fitness-for-duty certification for all similarly-situated employees

Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist

Authentication and clarificationEmployee responsible for any cost

Employee Responsibilities –

Fitness-for-Duty Certification

FMLA MILITARY FAMILY LEAVEFMLA MILITARY FAMILY LEAVE

The FMLA military family leave provisions include:

Qualifying exigency leave, which provides up to 12 workweeks of

FMLA leave to help families manage their affairs when a military

member has been deployed to a foreign country; and

Military caregiver leave, which provides up to 26 workweeks of

FMLA leave to help families care for covered service members

with a serious injury or illness

Generally, FMLA rules and requirements continue to apply

What is ADA?

The Americans with Disabilities Act, effective July 26, 1992, established a clear and comprehensive prohibition of discrimination on the basis of disability in employment

Who is Disabled?

People who currently have a disability People who have a history of disability People who are perceived as disabled by

others

ADA EmploymentProhibitions

Requires employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to non-disabled persons . It prohibits discrimination in: job application procedures hiring advancement employee compensation Job assignment/classification job training other terms, conditions, or privileges of employment

Qualified Individual With a Disability

“Qualified individual with a disability” means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and who with or without reasonable accommodation, can perform the essential functions of such position

Types of Reasonable Accommodations Reasonable accommodations may include but are not

limited to: Modifying the job application process Making facilities accessible Job restructuring part-time or modified work schedules Acquiring or modifying of equipment/devices Modifying policies Providing readers/interpreters/notetakers/CART Educating co-workers Other similar accommodations

EmploymentUndue Hardship

Reasonable accommodation may not be provided if such accommodation results in undue hardship on the employer.

“Undue hardship” means: an action requiring significant difficulty or expense one that is costly, extensive, substantial or disruptive One that will fundamentally alter the nature of

employment

WHAT IS NOT A DISABILITY?

Conditions Excluded By Statute

ESSENTIAL JOB FUNCTIONS

Fundamental Job Duties of the Position

ESSENTIAL JOB FUNCTIONS

Employers Can Establish Job-Related Qualification Standards (e.g., education, skills, experience, physical/mental standards)

ESSENTIAL JOB FUNCTIONS

Need Clear Job Descriptions

REASONABLEACCOMMODATION

May Enforce Rules of Conduct Grounded In Business Necessity (e.g.,

Non-Violence Work Rules)

REASONABLEACCOMMODATION

Only Known Disabilities Need Accommodation

REASONABLEACCOMMODATION

Accommodation Must Be Effective for Employee

Consult With Employee

REASONABLEACCOMMODATION

Procedure for Requesting1. Notice to Human Resources

2. Meeting to Identify Limitations3. Discuss Potential

Accommodations4. Determine Reasonableness

Parting Shots Parting Shots

• Employment cases from around the country

Pepper Spray ProtestPepper Spray Protest

The Price Wasn’t Right The Price Wasn’t Right

The Headmaster’s Daughter The Headmaster’s Daughter

OCD Employee OCD Employee

Multiple Personalities Multiple Personalities

Presenter:Kevin M. Kinne, Cohen Kinne Valicenti & Cook LLP