Almost all employers are business people. They are used to credits and debits in handling and accounting for commercial accounts,  they are used to the application of credit in one transaction to make up for a shortfall in another.  A customer over pays for a delivery in March but under pays by the same amount for a delivery in April. Most businesses are satisfied to have the debit in one month offset the credit in another.  A recent Third Circuit Court of Appeals case reminds employers that payments to employees can only rarely be treated in the same way as commercial accounts.

In Smiley v. DuPont, plaintiffs in a class action unpaid wage lawsuit, claimed that they had not been paid wages and overtime for time spent “donning and doffing” equipment and apparel necessary to perform work. DuPont sought to offset this allegedly unpaid work time by pointing to the fact that DuPont voluntarily paid its workers for meal periods. That voluntary lunch payment is not required by law. Thus, DuPont argued that the voluntary meal period payment should offset any wages not paid for “donning and doffing” time.

Find out if the trial court agreed with DuPont’s analysis by visiting the HRUSA blog post at http://blog.hrusa.com/blog/unpaid-work-time-is-not-offset-by-voluntary-payment/.

Unless you have been living under a rock for the last few months, you are undoubtedly aware that December 1, 2016 marks the day that the U.S. Department of Labor’s (“DOL”) new overtime rules become effective. The new minimum salary level for the executive, administrative, and professional employee exemptions under the Fair Labor Standards Act (“FLSA”) will be $913 per week, or $47,476 per year, which more than doubles the current minimum salary levels. You will recall from our October 13, 2016 post that 21 states jointly filed a lawsuit in the Eastern District of Texas asking that the Court block the DOL from implementing the rules. Shortly after filing their Complaint, the states filed a Motion for Preliminary Injunction, asking the court to block enforcement of the new rule pending a final ruling. A hearing has been scheduled for November 16, 2016, just two weeks before the new rule is scheduled to take effect. Accordingly (and because the issuance of an injunction is a long-shot), employers must prepare for the new overtime rules to go into effect. One option employers are considering is the implementation of a fluctuating workweek to reduce the financial implications of the new overtime rules.

To read the rest of the article, visit the HRUSA blog at http://blog.hrusa.com/blog/new-dol-overtime-rules-and-the-fluctuating-workweek/

Since its 1994, decision in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), the Seventh Circuit has instructed the district courts within its boundaries (including those in Illinois) to look for evidence that creates “a convincing mosaic of discrimination” in considering summary judgment motions in employment discrimination cases.  After more than a decade of inconsistencies and criticisms of this approach, the Seventh Circuit has now abandoned this approach with its decision in the case Ortiz v. Werner Enterprises, Inc., decided August 19, 2016.  The Seventh Circuit ruled that the sole test that should be applied in considering summary judgment motions in employment discrimination cases, “is simply whether the evidence would permit a reasonable fact finder to conclude that the Plaintiff’s race, ethnicity, sex, religion or other prescribed factor caused the discharge or other adverse employment action.”  The Seventh Circuit’s ruling appears to be an attempt to bring some certainty to the summary judgment process in employment discrimination claims by abandoning the vague and inconsistent “convincing mosaic” approach.

Werner Enterprises is a shipping company that provides freight brokerage services to its customers.  Brokers for Werner would be responsible for finding a carrier for any customer’s load and then putting that shipment into the proprietary system maintained by Werner.  Brokers were compensated through a base salary but would also earn a commission if they could generate a profit for Werner, i.e., locating carriers for the load who would charge less than Werner would charge the customer for moving the freight.

Read the rest of this article at the HRUSA blog here: http://blog.hrusa.com/blog/convincing-mosaic-not-required-in-7th-circuit/

Vida Thomas will be speaking at San Joaquin Society for Human Resources Management’s Employment Legislative Update 2017  on Wednesday, January 11, 2017.   For more information on this seminar, please visit http://www.sjhra.org/event/employment-legislative-update-2017-half-day-seminar/.   Please note that Weintraub Tobin’s clients will receive a discounted rate and limited seats are available.  To register for this seminar, please visit: https://www.eventbrite.com/e/employment-legislative-update-2017-a-half-day-seminar-tickets-28660308755.

Vida serves as Of Counsel to the Firm’s Labor and Employment Group. As an AV-rated attorney who has practiced employment law for over 20 years, she heads up the Firm’s workplace investigations unit. For more information on Vida and her practice, please visit her attorney bio at http://www.weintraub.com/attorneys/vida-l-thomas

The National Labor Relations Board (“Board”) recently created another potential pitfall for employers who misclassify employees as independent contractors.  Most employers know that, if they misclassify an employee as an independent contractor, they may be subjected to fines, penalties and other types of liability.  Such employers also can be sued by the misclassified employee and potentially liable for unpaid overtime wages (among other things).  Additionally, taxing authorities may seek from the employer withholdings that should have been, but were not, applied.

To read the rest of this blog, visit the HRUSA blog at http://blog.hrusa.com/blog/more-pitfalls-for-misclassifying-employees/.

To learn more about Brendan J. Begley and his practice, visit his attorney bio at http://www.weintraub.com/attorneys/brendan-j-begley.