Category: Archive

Are you allowed to “bank” overtime—saving it up for later use, such as to provide vacation time or something else for employees?

Under the Federal Fair Labor Standards Act and most state wage and hour laws, you cannot bank overtime except in extremely limited circumstances. Employees who are exempt from the overtime law can get “time off” in a sense, but if you treat them as hourly employees for pay and leave purposes, you run the risk that they will be found to be non-exempt (and you would have to pay overtime at the time-and-a-half rate).

Source: Epstein, Becker & Green, New York, June 16, 1998.

I had one of my employees work the night shift one night, and then come back to work five hours later to work the day shift the next day. Is that legal?

It may not be. Some states (not all) have laws which require at least an eight-hour break between full-time shifts. In addition, some federal regulations may apply as well, such as those which require a truck driver to take an 8 hour break for sleep in every 24 hour period. Check your local state law or call your local wage and hour division of the state department of labor.

Source: Epstein, Becker & Green, New York, June 16, 1998.

When you terminate an employee, does federal law require you to pay them their unused vacation pay?

The short answer is “no.” Federal law does not require an employer to pay unused vacation time. Most state wage and hour laws permit employers to adopt a policy calling for forfeiture of unused vacation time, but some state laws require payment of unused time. Check with your state labor department for more information.

Source: Epstein, Becker & Green, New York, September 8, 1998.

Discriminating on the basis of age is illegal under the Federal Age Discrimination in Employment Act (ADEA).

Under the law, there are some special limitations on who can sue.

People under forty years old are not protected by age discrimination laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore “too young”, that is not illegal. But if it because he or she is forty and “too old”, that is illegal.

Age discrimination has some special aspects that make it different from other types of employment discrimination. A few of these are discussed below.

Golden Handshakes
Sometimes when employers are downsizing, they lay people off by offering “golden handshakes”, which are special packages to employees who agree to take early retirement. This is not age discrimination. However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal.

Replacing Older Workers
It is illegal to replace a person over 40 with a person under 40, if age is the reason. It is also illegal to replace a person over forty with a younger person who is also forty.

Replacing Higher Earners
It is not illegal to replace people who are making high wages with people who will make less because they have less seniority. However, this usually means replacing older workers with younger ones. If the wage considerations are not the real motivator, and the employer is actually trying to replace older workers with younger ones, that is illegal. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers.

Contact your attorney for more information about the law in your state.

Source: David H. Greenberg, Los Angeles, September 25, 1998.

On September 9, Mitsubishi agreed to pay $3 million to settle a class action lawsuit involving 87 disabled people. According to the U.S. Equal Employment Opportunity Commission, Mitsubishi rejected the 87 candidates after pre-employment medical exams revealed disabilities ranging from hearing loss to diabetes. While these exams are normally legal, the 1992 Americans with Disabilities Act requires employers to make a reasonable effort to accommodate disabled workers.

Last month, the EEOC also filed a class action lawsuit against J.Crew Group, Inc. and one of its subsidiaries for allegedly discriminating against men. This complaint was initiated on behalf of George Mandell of West Haven, CT. According to the lawsuit, Mr. Mandell was told he would not be considered for a customer service job because he is male. This lawsuit alleges a “pattern and practice” of refusing to hire men for management and customer service positions.

While both of these lawsuits involve incidents that occurred during the interview stage of the hiring process, the “pattern and practice” that the lawsuits allege is directly relevant to recruitment advertising. Improper language in a job posting can often contribute to a case as a form of “prima facie” (implied or giving the appearance of) guilt. While an advertisement might not expressly discriminate against certain applicants, it might give that appearance based on interpretation and can serve as evidence in a discrimination lawsuit.

• Avoid any references to age, even those that sound benign. How often have you seen an ad describe the ideal candidate as “youthful and energetic”? While one might argue that a person of any age can be described that way, it can be easily be interpreted differently.
• Be sure not to use gender-specific language. Obviously, you want to avoid phrases like “the right man for the job”, but even commonly used words like “repairman” can cause problems. Also, avoid more subtle references to gender, such as in appearance and apparel. (“This job requires that you provide your own tuxedo”, etc.)
• When writing a job description, avoid phrases that preclude people with disabilities. For example, you should never say a job “requires long hours on your feet.” You may not have intended to discriminate against a candidate in a wheelchair, but it still gives that appearance.

Most recruiters know that it is illegal to reject a candidate based on age, gender, and disabilities. In most cases, it is also illegal to discriminate on the basis on nationality. Many business owners feel that when staffing positions that deal with the public, the ideal candidate should be someone the customer can relate to on a personal level. For this reason, if the job is a salesperson in a predominately Chinese community, the employer might prefer Asian candidates and indicate that in advertising. While there are instances when this can be legally defended as a “bona-fide occupational qualification,” this is a quick route to trouble.

Another area that can cause problems is religious discrimination. Some employers consider a “Christian and pro-family environment” to be an attraction and want to advertise this as an advantage over other companies. This could cause problems if Jewish or Muslim applicants feels they were denied employment on that basis.

One easy way to convey a fair and equitable company image is to include equal employment notices on all of your job ads. This is as simple as adding the customary shorthand designation of “EEO/M,F,H,V” at the end of your company biography. One benefit to Internet advertising is you are normally not limited by space. Thus, it wouldn’t hurt to include sentence or two detailing your company’s equal employment policies.

Discrimination is fairly difficult to conclusively prove, but the axiom of “innocent until proven guilty” is not applicable in civil court. If you appear guilty, you will likely be found liable. Most recruiters have a clearly stated company policy against discrimination and harassment and would never consider race, gender, disability, religion or national origin in their hiring decisions. Even so, it is important to be careful of what words you choose when advertising to avoid giving the wrong impression.

SOURCE: Best Recruiter News, September 21, 1998.

Guidelines for Office Relationships:

• Employers should have written policies on dating and family relationships in the workplace to promote uniform treatment of all employees and reduce the likelihood of claims of discrimination or favoritism. Supervisors should hold question-and-answer sessions with employees upon initiation of the policies to avoid any misunderstandings. All new employees should receive the policy upon being hired and should be given the opportunity to ask questions.
• Employers generally cannot discriminate based on marital status, so workplace rules should apply to close relationships between coworkers, whether married or not.
• Employers should require employees who are in a close personal relationship to report the relationship if the employees work together as part of their jobs. Supervisors should treat this information as confidential.
• Employers should generally prohibit employees in a close personal relationship from working in supervisor/subordinate roles. If a transfer or change in responsibility is not feasible, other supervisors should handle or participate in performance reviews of the subordinate employee. It should be clearly stated that the subordinate employee has the option of going to the most senior supervisor to discuss any workplace issue.
• Employers may require that employees in a close personal relationship refrain from public displays of affection or excessive conversation.
• Workplace relationships rules should apply to all employees, even senior executives.
• Guidelines and policies regarding dating and close relationships in the workplace need legal review to ensure compliance with federal, state and local laws.

Source: Michael D. Karpeles, partner and head of the Chicago-based employment law group of Goldberg, Kohn, Bell, Black, Rosenbloom and Moritz, Ltd.

How can you keep track of the race of your job applicants for affirmative action purposes, but abide by the law at the same time?

Employers may legitimately need information about their employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use “tear-off sheets” for the identification of an applicant’s race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.

Source: U.S. EEOC, Washington, D.C., September 11, 1998.

Are you concerned that a former employee may use your company secrets either for personal gain or to file lawsuits against the company? Employment contracts can help protect you. Here are some of the many benefits of employment contracts.

A defense against claims of wrongful termination.
A contract clause that demonstrates the at-will nature of the employment can help.

Protection of the company’s confidential information.
Make sure you specify in the contract what constitutes confidential information.

Protection of the company against competition from its employees.
These provisions usually require geographical limitations and a specific period of time that the employee must wait before working for a competitor or soliciting your clients/customers.

Lowering the risk of expensive litigation and runaway jury verdicts.
An arbitration clause can provide for quick, less expensive, and confidential (arbitration isn’t in the public record like lawsuits) resolutions.

Source: John M. Myers, David V. Radack & Paul M. Yenerall, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA, March 17, 1998.

When terminating employees, here’s what not to do during that process:

• Take your anger out on him/her.
• Fire him/her for something another employee or employees did.
• Keep no records or proof.
• Discuss employees shortcomings with other employees.
• Leave confidential employee information in the reception area.
• Assume that your supervisors know and follow the rules.
• Tolerate employees using race, sex or age-based remarks.
• Give a great reference to a problem employee.
• Sugarcoat your evaluations to avoid hurting an employee’s feelings.
• Tell a long-term employee with a performance problem that he or she ought to consider retirement because he or she is getting on in years.
• Snoop into employees private lives for no reason.
• Ignore problems until you absolutely must deal with them.

Source: Paul Heylman, Schmeltzer, Aptaker & Shepard, Washington, D.C., July 1998.