What Do the Big Changes in Overtime Laws Mean For Employers?

The U.S. Department of Labor just released a new Rule regarding the overtime exemption for full-time salaried workers.  Under the current rule, any full-time salaried worker in an executive, administrative or professional position is exempt from overtime pay as long as the employee is paid at least $455 per week ($23,660 annually).  However, starting December 1, 2016, the salary threshold will jump to $913 per week ($47,476 annually).  This jump will have a drastic impact on employers who regularly avail themselves of the so-called “white collar” overtime exemption.

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Do you know what to do when you fire an employee?

State wage payment laws generally provide for the intervals in which employees must be paid, and how and when they must be paid when they leave.  Since the laws vary, and there are often harsh penalties for a violation, it is important for an Employer to know what their own state law demands.

In West Virginia, traditionally one of the harsher jurisdictions for wage payment, there was some good news this year. Employees who are fired must be paid their final paycheck within four business days of the involuntary termination.  This may not sound like a long time, but the law used to mandate 72 hours, with no exception for business days.  If an Employer waits too long, the penalty is 3 times the unpaid wages.  The Employer may be on the hook for an employee’s legal fees as well.

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Does an employer need a travel policy?

A travel policy is a good idea for any employer whose employees are expected to do more than simply travel to and from work.  Such a policy can be just as important to a small employer who sends a few employees on a company retreat once a year, as it is to a larger employer who sends employees around the country or to foreign countries on a regular basis.

Travel policies should stand side by side with any other traditional employment policy, and should serve the same important purpose: letting the employee know what to expect, and what is expected.  They can and should be used by a broad variety of employers.

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Does an employer have to pay overtime to employees who work at more than one of the employer’s locations?

Everybody knows that an hourly employee is entitled to 1&1/2 times the regular rate of pay for each hour worked over forty in a week.  But, what about an employee who works more than one job for the same employer?  

For example, say an employee works thirty hours in a week at Job A, and then 20 additional hours at Job B that same week.  Does the employee get paid 10 hours overtime?  What if the jobs pay different hourly rates? How would overtime be calculated then?

The answer can depend on many factors.  If the employee works Job A and Job B for separate, unrelated employers, then neither employer should be responsible for overtime.  But what constitues separate and unrelated can be tricky.  What about an employee who works at two different stores of a retail chain?  Or at a restaurant and office owned by the same company?  What if the employee mows the lawn at the home of his boss on the weekend?

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Executive Compensation, Employment Agreements & Severance Agreements

When you find yourself in the situation of being offered an executive compensation package, an employment agreement or a severance package that requires you to sign a written agreement, you need to seek legal counsel because there may be a number of provisions in the agreement that are not favorable to you.

We are experienced in reviewing and negotiating employment, executive compensation, and severance agreements.  If your employer asks you to sign an employment or executive compensation agreement, we can help you review the terms, and negotiate a more favorable package for you.

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The overtime law states that all employees who are not exempt from the FLSA must be paid at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 hours in any workweek.  Although this sounds like a simple rule, it is far from simple.  In fact, the overtime laws are incredibly complex.  There are a number of arcane rules and broad exemptions that employers often rely on in an attempt to avoid their obligation to pay overtime.  As a result, unpaid overtime is one of the most frequent sources of employee complaints.  Overtime class action cases are one of the fastest growing types of employment litigation in our federal court system.

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Sexual Harassment

What is sexual harassment?

Sexual harassment is probably the most well known form of employment discrimination.  However, many do not know what sexual harassment is.  It is not a single instance of name calling, a request for a date, or a leering look.  Rather, in order to prove sexual harassment, a plaintiff must show that he or she has been subjected to unwelcome conduct that creates a hostile environment based on his or her sex that is sufficiently severe and pervasive to alter the terms and conditions of his or her employment.

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Gender Discrimination

Title VII prohibits discrimination “because of” an employee’s sex.  In other words, your sex cannot play a role in any aspect of your employment, including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges.  In addition to Title VII, a related law, the Equal Pay Act (“EPA”) requires that men and women be given equal pay for equal work.

The Pregnancy Discrimination Act (“PDA”) prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions.  Although this does not mean that pregnant women are entitled to special treatment, it does mean that pregnant women must be treated equally to non-pregnant individuals.  For example, if your company gives extra leaves of absence to employees with medical conditions, they must extend this practice to pregnant women.  The Family and Medical Leave Act (“FMLA”) also gives you certain rights if you need a leave of absence for your pregnancy or for the birth of your child.

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Religious Discrimination

Title VII prohibits religious discrimination.  This means your employer may not discriminate against you “because of” your religious beliefs.  This also prohibits harassment based on your religious beliefs as well as retaliation against you for complaining about religious discrimination or for participating in someone else’s religious discrimination case.

The religious discrimination laws have three separate protections:

  • Your employer must make reasonable efforts to accommodate your religious beliefs and practices in the workplace;
  • Your employer may not impose its religious views on you or permit your co-employees to impose their religious views on you; and
  • Your employer may not take adverse action against you (including harassment) because of your religious beliefs.

The duty to accommodate

If you follow a recognized religious faith and your faith requires you to engage in certain practices or wear certain types of clothing while in the workplace, your employer must make reasonable efforts to accommodate you.  This means the employer must allow you to wear a religious head covering or engage in prayers as long as the practice does not place an undue burden on your employer.  Typically, this means your employer must accommodate you unless it would be prohibitively expensive for it to do so or your religious practice would interfere with the operations of your employer’s business or present a safety hazard.

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Disabilities Discrimination

The Americans with Disabilities Act (“ADA”) makes disability discrimination illegal.  The ADA prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment.  The ADA also prohibits disability harassment and retaliation against you for complaining about disability discrimination or for participating in someone else’s disability discrimination case.

Not all injuries, illnesses or even medically defined disabilities are covered by the ADA.  The ADA projects a specific class of individuals such as a qualified individual.  A qualified individual with a disability is an individual with any medical, physiological, or psychiatric condition that substantially limits a major life activity.  Temporary conditions or conditions that, although serious, do not substantially limit any of your major life activities are not covered.  For example, permanent blindness or permanent paralysis are medical conditions that substantially limit major life activities.  Thus, blindness or paralysis are covered disabilities.  However, if you have a temporarily disabling condition, such as a bad back or broken leg, you are probably not considered disabled under the ADA.  Remember, the definition of a disability under the ADA is a legal one not a medical one.

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