Tag Archives: Department of Labor

Questions For Andrew Puzder, Trump Nominee for Labor Secretary

 

(Post by Rick Dacri, January 12, 2017)

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President-Elect Trump has nominated Andrew Puzder for Secretary of Labor. Puzder is a successful businessperson, lawyer, and CEO of CKE Restaurants, the parent company of fast food chain’s Hardee’s and Carl’s Jr.

The mission of Labor is “to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.” They are also responsible for investigating minimum wage violations, overtime infractions, and worker safety laws.

Puzder has taken positions in opposition to many of the regulations the DOL oversees, including the federal minimum wage, worker eligibility for overtime, the Affordable Care Act (Obamacare) and sick leave polices.

The U.S. Senate is scheduled to begin confirmation hearings on Puzder in February.

I have put together 18 questions that I believe the Senate should ask the nominee:

  1. What qualifies you to be the next Secretary of Labor?
  2. You have opposed the raising of the federal minimum wage. Why? What do you believe is an adequate minimum wage?
  3. You indicated a proposed $15 minimum wage would force businesses to automate their operations and thereby eliminate jobs. Do you believe that a minimum wage increase drives the need for automation or is automation a tool for productivity? If wages collapsed, would businesses stop automating?
  4. According to the Economic Policy Institute, CEO pay has grown 90 times faster than the typical worker pay since 1978. Due to this unequal growth, average top CEOs now make over 300 times what typical workers earn. Do believe wage disparity is a problem in this country and what, if anything, should Labor or the Trump administration do about this?
  5. The Department of Labor oversees the federal wage and hour division, which ensures that workers are paid for all the hours they work. Yet in California, your franchise restaurants have been fined over $20 million for wage and hour violations. Can you address this issue and what steps did you take to remedy this problem in franchises you control. Secondly, what steps will the DOL take, under your reign, to enforce wage and hour laws?
  6. A Roc United survey given to your franchise store employees in California, found that a third of those employees were not given meal breaks after working at least 5 hours, in violation of the state’s worker break laws. 79% said they also served or prepared food while they were sick. Can you address these issues and what steps did you take to remedy these problems in franchises you control. Secondly, what steps will the DOL take, under your reign, to enforce break laws?
  7. You are also on record opposing sick leave policies, yet many workers in your franchise restaurants are preparing and serving food while sick. Are you concerned about endangering both your customers and employees? Should sick leave laws be mandated?
  8. Bloomberg did an investigation of your company’s franchises. They found that in 60% of the DOL investigations in your restaurants, there were minimum wage and overtime violations. Again, can you address this issue and what steps did you take to remedy this problem? Secondly, what steps will the DOL take, under your reign, to enforce wage and hour laws?
  9. President-Elect Trump has indicated he supports 6 weeks of paid maternity leave. You have stated that mandatory leave creates undue burdens on business. How directly do leaves create a burden, and as Labor Secretary, will you support or ignore the President-Elect’s initiative?
  10. According to a review of inspection records with the Occupational Safety and Health Administration since 2000, the year your took over as chief executive of CKE, Hardee’s and Carl’s Jr. locations have incurred at least 98 safety violations, 36 of them listed as serious. OSHA defines a “serious” violation as one that could result in death or grave physical harm that the employer should have been aware of. Can you address this issue and what steps did you take to remedy this problem in franchises you control? Secondly, since OSHA and worker safety fall under DOL’s responsibility, what steps will the DOL take to enforce these laws?
  11. Your company has introduced commercials that include women wearing skimpy bikinis and lingerie while eating burgers. In response, you stated in a 2015 Entrepreneur interview, “I like our ads. I like beautiful women eating burgers in bikinis. I think it’s very American. I used to hear, brands take on the personality of the CEO. And I rarely thought that was true, but I think this one, in this case, it kind of did take on my personality.” My questions, is this your personality, as you stated? Do you believe these ads objectify women? What kind of tone does this set in your workplaces?
  12. 2/3 of female workers in restaurants operated by you, claim that they have been sexually harassed by your customers. Many employees indicated that these customers mentioned those ads. Were you aware of this and what is your plan to address this?
  13. Do you believe that sexual harassment in the workplace is a legitimate issue and what steps should employers take to eradicate it?
  14. Are there any federal labor laws that you would eliminate and if so, which ones and why?
  15. Do you believe there are any new labor laws that should be initiated? What are they and why are they needed?
  16. President-Elect Trump stated that he would like to eliminate unemployment compensation fraud. How big a problem is it and how could you eliminate it? Please be specific.
  17. You have opposed the Affordable Care Act. What specifically is the problem with the Act? Are their components of it that you would like to keep? What would you replace the Act with, what would it cover and not cover, and will it be cheaper than the current ACA?
  18. You have stated that we should cut government benefit programs because workers turn down promotions to keep such benefits, such as food stamps. Please explain this and tell us how wide-spread a problem this is?

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Compensation Trends & Pitfalls What You Must Know and Do (Webinar)

images-2Proposed changes in the Department of Labor overtime rules will force you to make significant changes to your pay and benefit structure; a changing economic market is driving wages upward; and an increasing number of wage and hour lawsuits has all put compensation at center stage.

In this one-hour webinar, scheduled for November 12th at 2PM, Rick Dacri will show where wages are going in 2016; how to prepare for the 2016 proposed changes to the overtime rules; and how to avoid the most common wage and hour violations.

This webinar is designed for all executives, managers, supervisors and HR professionals—anyone who supervises staff.

In this 60-minute webinar, you will learn:

  • What the expected pay increases will be in 2016
  • What will be the important 2016 compensation trends you should know
  • How to remain competitive when new hires are driving pay upward
  • Strategies to address the proposed doubling of the overtime minimum
  • A definitive way to differentiate between a salary and hourly position
  • Understanding if you must pay someone who does work on his or her time
  • Knowing when you can deduct pay from a salaried worker
  • Methods to correct mistakes in employee’s pay
  • Pay requirements when employees work through lunch, at home, or before the start of a shift
  • Avoiding mistakes in paying Independent Contractors
  • Whether you can prevent employees from discussing their pay

These are just some of the things we will cover in this packed webinar. In addition, by attending, you will also receive a copy of the PowerPoint slides and 3 white papers (Understanding Exempt Status under the FLSA; FLSA Fair Pay Questionnaire; and Improper Deductions of salaried workers).

The entire program is just $125 (my clients will receive a complimentary pass). To enroll, simply email (rick@dacri.com) or call me (207-229-5954). It’s that easy. I’ll take your information and you can send me a check.

Got questions? Give me a call and I’ll give you an answer.

Sound good. Then sign up now…and tell your colleagues too!

You may want to read:

Compensation Trends and Pitfalls: What You Must Know and Do

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FLSA: Record Keeping Requirements

Unknown(Post by Rick Dacri, October 1, 2015)

The U.S. Department of Labor is stepping up its enforcement of misclassifying workers as exempt and failing to maintain records on non-exempt workers. This post outlines the record keeping requirements under the Fair Labor Standards Act (FLSA as noted in the DOL’s Fact Sheet #21.

All employers should regularly review the classification of all their exempt employees and secondly, audit the records of their nonexempt employees.

What Records Are Required: Every covered employer must keep certain records for each non-exempt worker. The Act requires no particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned. The law requires this information to be accurate. The following is a listing of the basic records that an employer must maintain:

  1. Employee’s full name and social security number.
  2. Address, including zip code.
  3. Birth date, if younger than 19.
  4. Sex and occupation.
  5. Time and day of week when employee’s workweek begins.
  6. Hours worked each day.
  7. Total hours worked each workweek.
  8. Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
  9. Regular hourly pay rate.
  10. Total daily or weekly straight-time earnings.
  11. Total overtime earnings for the workweek.
  12. All additions to or deductions from the employee’s wages.
  13. Total wages paid each pay period.
  14. Date of payment and the pay period covered by the payment.

How Long Should Records Be Retained: Each employer shall preserve for at least three years payroll records, collective bargaining agreements, sales and purchase records. Records on which wage computations are based should be retained for two years, i.e., time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. These records must be open for inspection by the Division’s representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

What About Timekeeping: Employers may use any timekeeping method they choose. For example, they may use a time clock, have a timekeeper keep track of employee’s work hours, or tell their workers to write their own times on the records. Any timekeeping plan is acceptable as long as it is complete and accurate.

If you need help determining whether you have properly classified your employees, give me a call.

Other Posts you Might Like:

  1. Pay Procedures: How To Avoid Wage and Hour Problems
  2. Overtime Eligibility To Double: Prepare For Change
  3. Misclassification of Independent Contractors in IRS Crosshairs

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Filed under Compliance, Department of Labor, DOL, exempt, exempt nonexempt, FLSA, human resources, misclassification, nonexempt, record keeping

Overtime Eligibility to Double: Prepare for Changes

images(Post by Rick Dacri, August 24, 2015)

The Department of Labor’s (U.S. DOL) proposed change to overtime eligibility is likely to force all employers to review and make changes to their compensation plans prior to the expected 2016 implementation.

Under the proposed rule, the salary threshold under which employees would be nonexempt—required to receive overtime pay (regular hourly rate x 1.5 for all hours worked beyond 40 hours per week), would be $970, or $50,440 per year for a full-time worker, more than doubling the salary threshold from the current level of $23,660. Afterward, the salary-level threshold would be updated annually based either on the percentile or inflation.

Earning above the $50,440 annual ($970 per week) salary level does not automatically classify an employee as exempt from mandatory overtime pay, as the duties test still comes into play.

This is a significant change to the law and all employers should review their plans now, before the likely 2016 implementation period. Don’t wait, as changes will be complex and contain plenty of pitfalls.

To avoid problems with existing exempt workers currently being paid less than the new threshold, your options include:

  1. Reclassify affected workers as nonexempt, or
  2. Increase the employees’ salaries to at least $50,440, or
  3. Reduce the hours of these workers, or
  4. Pay a lower hourly rate so that, when multiplied by time-and-one-half, weekly compensation remains unchanged

None of these steps are ideal and are likely to result in employee relation issues and increased payroll costs. To make matters worse, the DOL has stepped up enforcement of the law, doling out significant fines, attorney fees and back pay for violations.

Some other problematic areas for employers that should immediately be addressed include:

  • Misclassifying employers as exempt, when they should be non-exempt when the duties test is applied
  • Misclassifying individuals as independent contractors when they are bona-fide employees
  • Failing to pay for “off the clock” work, including non-exempt employees working, unpaid, during breaks; bringing work home; being required to respond to emails, calls and texts, etc.

To avoid problems and lawsuits:

  • Audit your compensation program and pay practices for compliance
  • Review the classification of all exempt workers, particularly those being paid under $50,440
  • Review the classification of all independent contractors
  • Put in place a safe harbor policy, which states that if an employee feels he/she has been incorrectly paid, to bring it to your attention for review.

Develop a plan now that can be rolled out in 2016 when (and if) the law changes. Call me if you need help.

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DOL Publishes New FMLA Forms

(This post was written by attorney Kai McGintee, Bernstein Shur on 6/10/15)McGintee

With summer right around the corner, the federal Department of Labor hasn’t taken off on vacation quite yet. Rather, the DOL has been hard at work issuing new Family and Medical Leave Act notices and medical certification forms for employers to use. The new DOL forms are good through May 31, 2018:WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition. (Click for Forms)

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
WH-381 Notice of Eligibility and Rights & Responsibilities
WH-382 Designation Notice
WH-384 Certification of Qualifying Exigency For Military Family Leave
WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave
WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The forms are substantially similar to the DOL’s prior versions. The only notable change is that the DOL added a reference to the Genetic Information Nondiscrimination Act in its instructions to health care providers on the certification form for an employee’s serious health condition (WH-380-E). Specifically, the DOL added the following: “Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).” Employers who use their own medical certification forms rather than the DOL version should be sure to add this instruction for GINA compliance purposes.
Although the DOL had at one time created a form for employees to use to request FMLA leave, that form is a thing of the past. Because no magic words, let alone a form, are needed to request FMLA leave, the DOL did away with its model request for leave form. Employers should remember that for foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”
Once an employee requests leave, the employer’s responsibilities under the FMLA are triggered if it has “knowledge that an employee’s leave may be for an FMLA-qualifying reason.” As a result, when any doubt exists over whether an employee is seeking time off for a reason that could qualify under the FMLA, employers should err on the side of caution. If an employee mentions illness or injury as the reason for an absence, then the absence “may” be FMLA-qualifying and the Notice of Eligibility and Rights & Responsibilities should be provided to the employee. Although Maine has its own version of FMLA, the state has not developed its own forms. Accordingly, Maine employers who wish to utilize the federal forms for Maine FMLA purposes should specifically advise the employee that the federal form is being used for that purpose, and that mere usage does not confer federal FMLA rights. New Hampshire does not have a separate state family medical leave law and therefore follows the federal FMLA.
The DOL FMLA forms are simple, fairly straightforward, and legally compliant. As long as employers use them consistently and correctly, administration of FMLA will be a warm summer breeze!

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LinkedIn Gets Burned with Overtime Violations

UnknownPosted by Rick Dacri, August 26, 2014

Wage and hour violations are easy to commit, tough to mitigate, and can cost you a bundle. Ask LinkedIn. The Department of Labor has ordered them to pay nearly $6 Million in overtime-back wages and liquidated damages to 359 former and current nonexempt employees. The violation? Not having the right tools in place for some employees and their managers to properly track their hours. In other words, they probably didn’t record the hours the employees worked and didn’t pay them overtime for any hours worked over 40. Simple stuff, but areas where supervisors frequently get sloppy, employees get angry for not getting paid and companies get burned.

As part of the settlement, LinkedIn also agreed to do the following:

  1. Provide compliance training and distribute its policy prohibiting off the clock work to all nonexempt employees and their managers;
  2. Meet with the managers of the current affected employees to remind them that overtime work must be recorded and paid; and
  3. Remind employees of LinkedIn’s policy prohibiting retaliation against any employee who raises concerns about workplace issues.

My advice: I strongly recommend that you review your current pay practices, not just your policy. Talk to your supervisors and managers to make sure they are fully complying with the law. Sometimes, supervisors, in an effort to comply with no overtime policies and to stay within their budgets, improperly enforce the policy and commit infractions.

The Department of Labor is vigilant in monitoring and enforcing wage and hour violations. Their penalties are steep. Call me if you need assistance in ensuring you’re fully complaint.

Other similar posts by Rick Dacri that you may find helpful:

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Internships: Labor Department’s 6 Criteria to Meet Before Not Paying

  (This blog was written by attorneys Richard Alfred and Jessica Schauer of Seyfarth Shaw)

 Many employers in today’s business environment have had to make do with fewer employees to meet the constraints of smaller budgets. As the economy shows signs of rebounding, many companies face pressure to grow their business in spite of a lack of resources to support increased hiring. At the same time, competition for entry-level professional jobs, especially among recent college graduates, has become fierce. Many unemployed professionals see working for free as a way to build their resumes, gain experience, get their feet in the door, and stay current in their field. Both groups – employers and those seeking work – have increasingly turned to unpaid internships to provide educated and eager help for employers and opportunities for those in the entry-level job market.

 Employers considering unpaid internship programs, and those that already have them, however, should beware – the Department of Labor and plaintiffs’ employment counsel are watching. Two new lawsuits in the Southern District of New York by interns against high-profile employers demonstrate this trend. In Wang v. The Hearst Corp., filed this week, a former intern for the fashion magazine Harper’s Bazaar claims that the publisher violated state and federal wage law by making her work as many as 55 hours per week without pay. The plaintiff claims that interns “are a crucial labor force” for the magazine and that she spent her time coordinating deliveries of samples, maintaining records of the contents of the magazine’s sample trunks, and processing reimbursement requests – activities for which she claims she should have been paid. Hearst has told the press that its internship program is educational in nature and conforms to legal requirements. A similar lawsuit filed last fall, Glatt v. Fox Searchlight Pictures, Inc., alleges that the defendant violated wage laws when it used unpaid interns during production of the 2010 film “Black Swan.” These are only two examples of what may be a growing litigation trend.

 The fact that an unpaid intern performs work voluntarily is not enough, by itself, to avoid violations of the Fair Labor Standards Act; for-profit employers are prohibited from using volunteers. However, for-profit employers can hire unpaid interns without running afoul of the FLSA, so long as they meet the stringent test for “trainees.” An individual who meets this test is not considered an employee and thus is not covered by the minimum wage or overtime provisions of the FLSA. Many states have analogue laws that may also apply and should be considered.

The Department of Labor has identified six criteria to determine whether an unpaid internship meets this test: (1) the internship is similar to training which would be given in an educational environment; (2) the experience is primarily for the benefit of the intern; (3) the intern does not displace regular employees, and works under close supervision of existing staff; (4) the employer that provides the training derives no immediate advantage from the activities of the intern; (5) the intern is not necessarily entitled to a job at the conclusion of the internship; and (6) the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. The test is more likely to be satisfied where the internship has a classroom component and participants learn skills applicable to multiple employment settings.

Given growing attention to internship and volunteer programs, as demonstrated by the Hearst and Fox Searchlight lawsuits, employers should carefully evaluate programs of this kind that they have in place or are considering to ensure compliance with the FLSA and applicable state laws.

 

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