Category: Compliance

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Chipotle settlement highlights child labor issues

employment law, labor law, overtime records

According to CNN, Chipotle has agreed to pay a $1.3 million fine for more than 13,000 child labor violations at over 50 of its Massachusetts restaurants.

The state’s attorney general’s office accused the company of forcing teenagers to work without proper work permits, late into the night, and for too many hours per day and week. It’s the largest child labor penalty in Massachusetts history.

Writing at Inc.com, Suzanne Lucas (aka the Evil HR Lady) makes the excellent point that these failings fall squarely on the shoulders of management.

Employees, even adult employees, aren’t expected to know and comply with all labor laws. … It’s not up to a 17-year-old to clock out no later than 9:59 pm. It’s the manager’s responsibility to make sure it happens. This can be difficult for managers—and can require some complicated scheduling or hiring more adults than teenagers. Some teens want to work more hours and are happy to keep their mouths shut. It doesn’t change the law around it. Managers need training on the law and how it differs between adults and minor employees.

So what are the rule of the road for child workers? Each state’s laws differs. Here’s what Ohio law says on the issue.

Ages 14 and 15

When school is in session: i) they cannot work between the hours of 7 p.m. and 7 a.m.; ii) they cannot work for more than 3 hours on any school day; and iii) they cannot work more than 18 hours during any school week

When school is out of session: i) they cannot work between the hours of 9 p.m. and 7 a.m.; ii) they cannot work more than 8 hours per day; and iii) they cannot work more than 40 hours per week.

Ages 16 and 17

When school is in session: i) 11 p.m. before a school day to 7 a.m. on a school day (6 a.m. if not employed after 8 p.m. the previous night); and there are no limits on hours worked per day or week.

When school is not in session, there are no limits on starting or ending times, or hours worked per day or week.

Unlike adult workers, all minors are required to have a 30-minute uninterrupted break when working for more than five consecutive hours.

Prohibited Occupations

  • All minors are prohibited from working in the following occupations:
  • Slaughtering, meat-packing, processing rendering
  • Operation of power-driven slicers; bakery machines; paper product machines; metal forming; punching or shearing machines; circular and band saws; guillotine shears; woodworking machines
  • Manufacture of brick, tile, and kindred products
  • Manufacture and storage of chemicals or explosives, or exposure to radioactive and ionizing radiation substances
  • Coal mining and mining other than coal
  • Logging and sawmilling
  • Motor vehicle, railroads, maritime, and longshoreman occupations
  • Excavation operations, wrecking, demolition, and shipbreaking
  • Power-driven and hoisting apparatus equipment
  • Roofing operations

Additional Prohibited Occupations for 14- and 15-Year-Olds

  • Manufacturing and warehouse occupations (except office and clerical work)
  • Public messenger services occupations
  • Work in freezers; meat coolers and all preparations of meats for sale (except wrapping, sealing labeling, weighing, pricing, and stocking)
  • Transportation; storage, communications, public utilities; construction and repair
  • Work in boilers or engine rooms; maintenance or repair of machinery
  • Outside window washing from window sills, scaffolding, ladders or their substitutes
  • Cooking, baking, operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers, grinders, food choppers cutters, baker type mixers
  • Loading or unloading goods to and from trucks, railroad cars or conveyors
  • Work with cars and trucks involving pits, racks, or lifting apparatus
  • Inflation of tires mounted on rimes equipped with a removable retaining ring
  • For-profit door-to-door employment (unless the employer is registered with the Ohio Dept. of Commerce Division of Labor & Worker Safety)

As one can imagine, the Department of Labor and state attorney general offices take child labor violations very seriously. Just ask Chipotle. And ignorance is no excuse.

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Court Drills Company Over Bonus Pay

wage and hour law compliance, wages

Bristol Excavating entered into an agreement with Talisman Energy. Talisman paid all workers on its drilling sites bonuses for safety, efficiency and completion of work.

At some point, Talisman and Bristol agreed that Bristol’s workers were eligible to receive the bonuses; however, this arrangement was never codified. The Labor Department found Bristol should have included the bonuses in workers’ regular rate of pay for purposes of overtime compensation. In rejecting this, the Third Circuit emphasized an employee’s regular rate of pay is between the employer and employee.

Then it assessed the employer’s involvement in the bonus program: (1) whether the specific requirements for receiving the payment are known by the employees in advance of their performing relevant work; (2) whether the payment is for a reasonably specific amount; (3) whether the employer’s facilitation of the payment is significantly more than serving as a pass through vehicle. In applying the test, the Third Circuit found there was not enough clarity about the requirements or amounts of the efficiency or completion of work bonuses to require Bristol to include these bonuses in overtime compensation.

However, the terms of the safety bonus were sufficiently clear. Bristol employees knew the criteria for earning the bonus and how much they would receive, and Bristol invoiced Talisman for payment of the safety bonuses on behalf of its employees.

Bristol should have included the bonuses in its employees’ regular rate of pay. Sec’y United States Dep’t of Labor v. Bristol Excavating Inc., No. 17-3663, 2019 WL 3926937 (3d Cir. Aug. 20, 2019).

IMPACT: Employers with leased employees in the Third Circuit (New Jersey, Delaware and Pennsylvania) should audit their compensation practices in light of the new test announced in this case.

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3 Steps to Navigating Effective Wage and Hour Compliance

restaurant industry employees, wage and hour compliance for employers

Restaurant operators face many unique challenges — labor management being a top one.

In addition to today’s tight labor market, operators must also manage high employee turnover, complex scheduling as well as ever-increasing regulations around hour, wage and tip reporting requirements.

It’s no surprise that the restaurant industry continues to be a major target for Fair Labor Standards Act and class-action litigation. This type of litigation has proven to be costly in recent years as claims can be triggered by any number of employee complaints, including pay and hourly discrepancies.

In 2018 alone, the U.S. Department of Labor collected more than $42 million in employee back wages from the food services industry. This amount will only continue to increase as attorneys are now spending enormous resources on TV, radio, billboards and social media marketing campaigns to attract and inform hospitality employees on compliance violations.

Because much of the wage and hour legislation is new, and not coming off the back of federal law, there is little case history or precedence. And while there is a risk that employers do not pay their employees correctly under these new rules, the greater risk is that they do not have sufficient processes and auditable history in place to demonstrate compliance when challenged. This leaves restaurant operators vulnerable.

To avoid costly and time-consuming litigation, here are three steps restaurateurs can take now to better manage wage and hour compliance.

1. Begin internally: Start by educating managers on the statutory requirements for scheduling and paying employees, which can vary from city to city and state to state. For example, San Francisco, Seattle and the state of Oregon have started to implement “secure scheduling” or “predictive scheduling” ordinances. These rules require employers to provide schedules to employees up to two weeks in advance and extra pay if the schedules are changed. This creates a burden for employers who are not accustomed to being locked down so far in advance.

Once managers are up to speed on the current legislative landscape, conduct a thorough wage and hour audit to identify any existing or potential violations. The most common violations we see are the misclassification of employees as exempt vs. non-exempt status, the improper calculations of overtime wages for tipped employees, failing to maintain valid tip pools and the misuse of the federal tip credit.

The violations mentioned above are fairly easy to prevent; it simply takes commitment. Therefore, the last step should be to make compliance a companywide initiative by assigning responsibilities to someone internally or through an outsourced HR relationship. As the complexity of managing a workforce seems to grow exponentially each year with the addition of new legislation, continue to evolve internal processes and train managers to help ensure future compliance.

2. Enlist technology: In addition to scheduling requirements, operators are also required to manage employee breaks. For instance, in California, if a meal break starts just one minute later than required, the employer must pay an additional hour of pay to the employee. In New York, employers must pay an additional hour pay (called spread of hours) if the daily work schedule spans greater than 10 hours, regardless of the number of hours worked.

As pay and scheduling requirements vary depending on the location of the business, it’s nearly impossible for operators to manually manage multiple locations on their own. Restaurant-specific technology, with legislation and business rules built in, can enable operators to proactively manage compliance as well as provide an auditable history should claims of noncompliance arise. Utilizing technology can also help operators significantly reduce payroll errors as well as support and drive scheduling and time and attendance compliance efforts.

3. Educate employees: The expansion of restaurant locations and low unemployment has made it more difficult to find labor. These labor challenges often have a negative impact in the areas of training and enforcing best practices, areas that impact wage and hour compliance. Once you have finalized your company’s wage and hour-related policies — and have the technology in place to automate compliance — the final step is to effectively communicate these policies to your employees. Educating employees regarding their compensation, rights and obligations and encouraging them to come to management with any questions can help to significantly minimize future wage and scheduling claims. Policies can be communicated directly during daily shift meetings and through monthly training classes as well as in the employer handbook, which should be updated regularly.

With the daily demands of operating a restaurant, many lack the time needed to effectively manage wage and hour compliance. By following these tips, operators can significantly reduce their risk of noncompliance as well as more efficiently manage their business.

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Is It Legal to Dock the Pay of Employees Who Skip a Political Rally Being Held in the Workplace?

Jon Hyman The Practical Employer

Has an employer violated the law if it docks the pay of an employee who skips a speech being given by President Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees’ attendance at a rally Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

While attendance at the rally wasn’t mandatory, the employer told its employees that they would only be paid for the work day if they attended. Otherwise, they had the option to take a PTO day or take the day off excused and without pay.

While it sounds terrible to withhold pay for employees who choose not to attend a political event during the work day, just because it’s terrible doesn’t make it illegal.

Indeed, in all likelihood, there is nothing illegal about this practice. That said, I can envision a few arguments that could give this employer trouble.

1. You might jeopardize an exempt employee’s overtime exemption. One of the cornerstones of the FLSA’s exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employees’ pay for hours or days missed from work. If an employer reduces an employee’s pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime. Thus, paying an employee four-fifth’s of his or her salary for a four-day work week might jeopardize that employee’s exemption.

2. You operate in one of the few jurisdictions in which political affiliation discrimination is illegal. “Political affiliation” is not a protected category protected by any federal law. Still there are a few states that protect it under their own anti-discrimination laws. In California, for example, an employee docked because he or she chose not to attend a rally of a politician they did not support would have a cognizable claim for political affiliation discrimination.

3. You’ve violated an employee’s right under section 7 of the National Labor Relations Act to engage in protected concerted activity. Private employers cannot prohibit discussions by and among employees about wages, benefits, and other terms and conditions of employment. Therefore, if employees skip the Trump rally as part of a mass protest over how his policies impact the workplace, then it might be unlawful for their employer to dock their pay as a result.

Legal or illegal, however, you need to ask yourself whether coercing employees’ attendance at a political event is a legitimate business practice. How you answer the question of whether you think it’s OK to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes.

I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.
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Why Was a Stadium Full of People in France Chanting ‘EQUAL PAY’?

Jon Hyman The Practical Employer

Indisputable fact No. 1: Women and men should earn the same pay for the same work.

Indisputable fact No. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a woman is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The Equal Pay Act has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

Which brings us to indisputable fact No. 2, and the stadium chanting “equal pay.”

Two things of note happened in the U.S. soccer world on Sunday. The women won their fourth World Cup title, dominating the entire tournament, including the Netherlands 2-0 in the final. Meanwhile, the men lost the CONCACAF Gold Cup final 1-0 to Mexico.

The women’s team currently is engaged in a gender discrimination lawsuit against the United States Soccer Federation, claiming that the organization pays its male players way more than its female players. How much more? According to documents obtained by the Guardian, for example, each player on the U.S. women’s national team could receive more than $260,000 for winning the Women’s World Cup; each player on the men’s national team could earn more than four times that amount for winning the World Cup.

Last I checked, $260,869 does not equal $1,114,429. That’s a pay gap. Which could be legal under the Equal Pay Act, but only if it’s based on a factor other than sex. And this is where I plead ignorance. U.S. Soccer says that any pay differences are “based on differences in aggregated revenue.” I have no idea whether that’s true or false, but if true it might qualify as a “factor other than sex.”

What I do know, however, is that U.S. Soccer cannot justify these pay differences based on merit or success. The FIFA Women’s World Cup has been held eight times — the U.S. women’s team has won four of them, and has never placed worse than third. In the same time frame, the men’s team failed to even qualify for the 2018 World Cup and has never finished better than the quarter-finals (once, in 2002). The U.S. women have also won four Olympic gold medals, nine out of 10 CONCACAF Women’s Gold Cups, and are the No. 1 ranked team in world.

And, on the same day the women’s team won the World Cup, the men’s team lost the CONCACAF Gold Cup final (no offense to North American. Caribbean, and Central American soccer, but winning the CONCACAF Gold Cup is the equivalent of a AAA baseball team winning its league — it’s nice to win, but you’re not beating the best players on the best teams in world).

Based on results, it seems to me that not only should the women’s team be paid equally with the men’s team, but that there exists a great argument for the scale to be flipped, with the women’s team earning substantially more than do their male counterparts.

So, soccer fans and legal scholars, educate me. Why are the women paid so much less than the men?

I want to understand. Help me understand.

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Thanks for the Financial Advice, But …

Andie Burjek, Working Well blog

There was a lot of upheaval on Twitter earlier this week for JPMorgan, which tweeted something many people found frustrating.

The bank has since deleted the tweet, but here’s the text that went along with it:

You: why is my balance so low
Bank account: make coffee at home
Bank account: eat food that’s already in the fridge
Bank account: you don’t need a cab, it’s only three blocks
You: I guess we’ll never know
Bank account: seriously?
#MondayMotivation

“JPMorgan’s tweet demonstrated a stunning tone-deafness about the economic realities facing ordinary Americans — including the big bank’s own minimum wage employees,” according to the LA Times. The article went on to quote a personal finance expert who says the genre of personal finance has long been discredited.

I’m reminded of an op-ed I read on Vice last year. The frustrated author wrote: “Sometime last year, I started frequently googling ‘why am I poor’ and ‘how do I stop being poor.’ Every result insisted the problem is I go out too much (I don’t go out, I’m too tired), I don’t have a savings account (I don’t have enough kick around cash to open a savings account), or I’m not planning my money right (I plan to pay my rent and then cry in a corner until my next paycheck, does that count?) … Financial advice is geared toward the financially stable who make bad financial choices, like investing in bitcoin this year or getting bangs after a breakup.”

I believe there is a lesson here for companies that already have or are considering financial wellness programs. Mostly, if you’re not paying your employees enough (like many minimum-wage employees or some entry-level employees), financial advice could come across as pretty much nonsense. See the Vice article above.

I would agree with that. I’m reminded of a great Twitter thread I saw a few weeks ago.

Responses included, “Ah that’s great because my landlord just started accepting snacks for rent payments.” Also, “What’s amazing is employers pitch these things as benefits, and not like, I dunno, good health coverage or a retirement plan.” Also, “my starting salary at entry level was $36k… 15 YEARS AGO.”

And, my favorite:

It’s a good reminder that things organizations call “perks” won’t appeal to people who aren’t making enough money. Trying to push “financial advice” as a perk to someone who’s living paycheck-to-paycheck or someone who’s seeing everyday expenses continuously rise while their salary stays pretty much the same, for example, will realistically solicit a much more bitter reaction than you’d hope for.

I’m not saying financial wellness programs and free financial advice have zero value, but they’re a tiny piece in the puzzle. They address a symptom (money problems), not the cause. People have bills, debt, student loans and medical bills to pay, and salaries have not been rising at the same rate as everything else. People’s money problems exist in this broader environment where everything (including education) costs more, and fair compensation is more useful for employees than free advice.

As someone relatively early in her career (who hopefully will be making much more money as I grow older), I do want to acknowledge that money advice can be helpful. My parents and other family members have given me helpful, necessary guidance over the years, and I’m very thankful for that. However, even I understand that personal spending habits are just one aspect of how you’re doing financially.

There are also these macro factors that cannot be ignored.

Also in Working Well: Expanding Employee Access to Mental Health Care

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Labor Department Proposes Updates to ‘Regular Rate’ and ‘Joint Employer’

Jon Hyman The Practical Employer

Over the past week, the Department of Labor’s announced proposals for significant (and much needed) regulatory updates to the definitions of “regular rate” and “joint employer.”

The DOL proposed an update to the definition of “regular rate” under the Fair Labor Standards Act.
The proposal would permit employers to exclude the following from an employee’s regular rate of pay:

  • The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services.
  • Payments for unused paid leave, including paid sick leave.
  • Reimbursed expenses, even if not incurred “solely” for the employer’s benefit.
  • Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements.
  • Discretionary bonuses.
  • Benefit plans, including accident, unemployment, and legal services.
  • Tuition programs, such as reimbursement programs or repayment of educational debt.

This change, if finalized, would be significant, as it would exclude these items of compensations from non-exempt employees’ overtime pay. According to the DOL, this change is needed to encourage employers to offer more financial perks to their employees, as, under the current rules, employers don’t offer these perks out of a fear that it will lead to increased overtime pay. You can read the full proposed rule change here.

Second, the DOL proposed a new four-factor test to determine whether two entities are joint employers over the same employees. Under this proposed new test, to qualify as a joint employer, the entity would have to “actually exercise the power” to:

  • Hire or fire employees.
  • Supervise and control employees’ work schedules or conditions of employment.
  • Determine employees’ rate and method of payment.
  • Maintain employees’ employment records.

This change, if finalized, would also be significant, as it would limit a potential joint employer’s exposure for wage and hour liabilities of the primary employer. You can read the full proposed rule here.

Both of these rules are open for public comment for 60 days. Stay tuned, as if these become final, they represent key changes to employers’ wage and hour responsibilities.

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Salary Discussion Bans Are a Big Legal No-No

Jon Hyman The Practical Employer

AriesAviator posted the following question in the LegalAdvice subreddit:

Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do?

We both got pulled into a group chat over the app our work uses, and the first message reads as follows;

Hey I don’t want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don’t turn something we tried to do nice for you too into a pain for us.

Which, uh, what the fuck?

I’m pretty fucking sure everything in there is MASSIVELY illegal.

AriesAviator wins the labor law Kewpie doll.

Policies prohibiting pay-discussions among employees, or retaliating against employees who discuss how much they make, are per se illegal under the National Labor Relations Act.

Don’t just take my word for it. Here’s what the NLRB said on this very issue in Boeing Co.:

Rules that the Board … designates as unlawful to maintain because they … prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example … would be a rule that prohibits employees from discussing wages or benefits with one another.

So, AriesAviator, to answer your (albeit crassly asked) question, your employer’s response is 100 percent illegal, and, if you want to make a big deal out of it, jaunt over to your local NLRB office and file an unfair labor practice charge. It’s a pretty open and shut case.

Employers, if you have such policies in your handbooks, or have made such statements to your employees in the past, stop. It’s as easy of an unfair labor practice into which you can stumble.

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Employees Prefer a Raise, But They’re Also OK with a Promotion

A recent survey conducted by HR consultancy Korn Ferry revealed that 55 percent of employees prefer a raise with no promotion. However, 45 percent of them are just fine with a new title and no salary bump.HR Promotions

The survey, conducted in December and released in January, collected 1,327 responses from professionals. The key components of the survey could offer employers insight to how their employees consider which reward matters most.

Dennis Baltzley, global head of leadership development solutions at Korn Ferry noted, “Appropriate compensation is key to a professional’s job satisfaction, but at least as important as recognition for a job well done. One of the most visible forms of recognition is a promotion.”

When asked what the most likely action would be if they wanted to attain a promotion, 77 percent of respondents said they would have a conversation with their supervisor directly and identify areas of growth. When asked what they would do if they were passed over for a promotion, 66 percent said they would identify the reason(s) and work to improve while 20 percent said they would take on more responsibility.

Professionals are saying that they are willing to improve their workplace performance in order to be recognized. However, bottlenecking, or having nowhere to go, were the biggest likely reasons respondents said they were passed over for a promotion. If passed over, 31 percent of respondents said that they would start searching for other job opportunities.

In order to retain and motivate talent, Baltzley advised that, “Organizational leaders must set expectations of constant learning, and this means development and career plans at all levels, so employees see a path broadening, deepening, or advancing.”

In the next 12 months, half of the respondents said that they will ask for a promotion.

The other half, if they haven’t already received a promotion, said that they are afraid or don’t know how to ask, or they admit that they are not ready to be promoted.

Some 90 percent of respondents said they expected a promotion in one to five years. Of that, 44 percent were in the two- to three-year range. Employers need to be prepared for both cases while also considering how long an employee expects to stay in a role before being promoted.

“They key to job progression is ongoing development and coaching to ensure professionals are receiving feedback in terms of how they are doing in their current role and what they need to do to be ready to take on added responsibility,” Baltzley said. “And even if an employee is not yet ready for the next role, knowing that there is a potential for a promotion to a more challenging role is an excellent way to retain top talent.”

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Beware Pre-Shift and Post-Shift Workplace Activities

Jon Hyman The Practical Employer

In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing pre-shift (preliminary) and post-shift (postliminary) activities that are “integral and indispensable” to an employee’s principal activities.

What are “integral and indispensable?” Those activities that are (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In Busk, for example, the court held that post-shift security screenings were not “integral and indispensable” for an Amazon warehouse employee, because such screenings are not “an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,” and the employer “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”

In light of these standards, consider Mireles v. Hooters of Am., LLC, filed late last year in a Houston federal court. A Hooters waitress claims that her employer unlawfully withholds pay for “postliminary” activities.

According to the lawsuit, Hooters requires its “Girls” to be “approachable, upbeat, and attentive to the needs of the guests as she socially engages with and entertains each individual guest at the front door and on the floor.” Accordingly, it requires that they spend substantial post-shift time “conversing with customers about topics unrelated to Defendants’ food and beverage offerings or local attractions, and spending substantial time waiting for managers to reconcile their sales receipts and tips towards the end of each shift.”

Are these waitresses entitled to be paid? Who knows. The point to be made runs much deeper.

There is a fine line between what is “integral and indispensable.” If the waitresses are required to be “attentive to the needs of the guests” and “socially engaging,” then I can craft an argument that time spent schmoozing post-shift should be compensated, just as I can make the point that such activities have nothing to do with the principal work of serving wings and beer. These off-the-clock cases are difficult, expensive and risky. If you lose, you’re not just paying your lawyer, but also the plaintiffs’ lawyer.

In other words, before you decide that your employees’ pre-shift and post-shift time is non-compensible, stop, take a deep breath, and call your employment lawyer.