NOVAtime Technology, Inc. presents Wage & Hour: Understand the Laws and Avoid Litigation

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1 NOVAtime Technology, Inc. presents Wage & Hour: Understand the Laws and Avoid Litigation Live Webinar ~ May 20, 2015 Featured Panelist: Roxana E. Verano of Landegger Baron Law Group, ALC Exclusively Representing Employers Employment Law, Advice, Litigation and Solutions

2 Federal vs. State Law Which law should you abide by? Generally, there are significant overlaps between federal and state regulations. Employers must comply with whichever provides greater protection to the employees. 2

3 Federal vs. State Did you know? From 2007 to 2012, California, Illinois, New York, and Texas accounted for approximately one-third of the FLSA violations found. Distribution of FLSA violations following DOL wage & hour compliance investigations across regions ( ) 3

4 Unique Employer Issues Wage & hour laws present unique issues for employers: Establishing exemptions Recording hours worked Navigating FLSA and state laws Avoiding technical violations Recovering attorney fees 4

5 Preliminary Considerations Statute of Limitations: Federal claims: 2 years (3 years for willful violations) State claims: Varies by state, but may be longer than federal claims 5

6 Preliminary Considerations Definitions every employer should know: Workweek = any 7 consecutive days (beginning with the same weekday) Workday = period between the time when an employee begins and ceases principal activity Established Pay Period 6

7 Top 3 Claims Common claims that employers are sued for: Overtime Unpaid Misclassification Off-the-clock work Meal and rest periods Unreimbursed expenses 7

8 Overtime Overview Did you know? From 2007 to 2013, more than 1/3 of Wage & Hour allegations were related to overtime violations. Allegations in settled wage & hour cases ( ) 8

9 Overtime Overview What can be considered as overtime? Application of employ to suffer or permit to work Waiting time On-call time Mandatory lectures, meetings, training programs, etc. 9

10 Overtime Pay When is overtime payment owed? Federal: Premium pay is owed to non-exempt employees for all hours worked over 40 hours in a workweek. State: Premium pay requirements vary from state to state. 10

11 Overtime Exceptions Limited exceptions to overtime (not included in calculation of whether overtime premium pay is owed): Vacation Holidays Sick time 11

12 Employee Classification When is an employee exempt from overtime (& minimum wage) requirements? Salary test Minimum salary of $455 per week ($23,600 per year) Paid for quality (not quantity) of work Duties test (overtime exemptions) Executive Administrative Professional Salesperson exemption/outside sales 12

13 Unauthorized Overtime What if an employee works overtime without being authorized to do so? An employee who works unauthorized overtime MUST be compensated with premium pay, but he/she may be disciplined by the employer. 13

14 Off-the-Clock Work Use timekeeping strategies to minimize off-theclock overtime disputes: Record all time worked in timecards. Advise employees against performing work that is not accounted for in their timecards. Require employees to sign their timecards to acknowledge true and accurate recordkeeping. Record all travel time. Record trainings, meetings, lectures, & conferences. 14

15 Employee Breaks Meal and rest breaks: Federal: FLSA does not require meal or rest breaks; however, there are regulations if breaks are taken. State: Many states require employers to provide meal or rest periods. 15

16 Additional Activities Additional employee activities to consider: Performing preliminary/postliminary activity Donning and doffing Preparing equipment Security screening Traveling Spending (expense reimbursement) 16

17 Final Pay Rules Final paychecks upon separation: Federal: Federal laws exist only in connection with the payment of federal employees. State: All states maintain laws governing final paychecks, with the exception of Alabama, Georgia, Florida, and Mississippi. 17

18 Preventative Solutions Easy ways to avoid violating the law: Implement timekeeping procedures. Establish reimbursement policies. Consider varying evaluations, job descriptions, standards, rules, and procedures based on location or individuals. Review and understand state regulations/wage orders. Clearly communicate legal requirements to employees. Conduct audits to determine areas of potential exposure. Train supervisors and HR personnel to do regular weekly audits. Consult with an insurance broker to assess the need for Employment Practices Liability Insurance (EPLI). 18

19 Benefits of EPLI Why is an EPLI policy important? Provides protection against employee claims that are frequently not covered otherwise. Allows employers to have their interests represented by counsel of their choice 19

20 Benefits of Audits Why are audits important? Audits confirm the establishment of (and adherence to) promulgated policies and procedures. Inspections minimize/limit liability by identifying potential problems. Results may provide evidence to defend against wage and hour claims. 20

21 Exemption Audits Key documents to collect and review: Job descriptions Job evaluations Job postings Organizational chart 21

22 Non-Exempt Audits Key documents to collect and review: Timekeeping records, including a review of clock in and clock out times Comparison of employee timesheets and pay stubs Meal period punch records 22

23 Consult Experts Eradicate potential liability found in selfaudits: Consider allowing legal counsel to conduct the audit in order to protect the results and the collected documents through attorney-client privilege. 23

24 Medical Marijuana Federal vs. State Law Laws apply within and outside of the workplace: Federal: Use of marijuana is illegal under the Federal Controlled Substance Act. State: Approximately 23 states currently allow the use of medical marijuana. Four states (Colorado, Washington, Oregon and Alaska) allow recreational use. Summaries and full text of each state law can be reviewed at 24

25 Medical Marijuana ADA Law The Americans with Disabilities Act of 1990: ADA does not require employers to accommodate medical marijuana use, regardless of whether the employee uses marijuana on or off the job site. 25

26 Medical Marijuana Five Steps for Employers 1. Understand the laws that are specific to your state. 2. Adopt a pre-duty prescription medication and impairing effects substance safety policy. 3. Update employee job descriptions. 4. Adopt an ADA-compliant policy on reasonable accommodation. 5. Clearly communicate policies to employees. 26

27 Medical Marijuana Step 1: Understand the Laws Understand the laws that are specific to your state: Most states protect physicians, patients, and caregivers from criminal prosecution. Some states provide broader protection including discrimination prohibition with limited exceptions (e.g. Arizona, Connecticut, Delaware, Rhode Island). 27

28 Medical Marijuana Step 2: Safety Policy Adopt a pre-duty prescription medication and impairing effects substances safety policy: Require employees in safety-sensitive classification to disclose any such substances. Define safety-sensitive and list job classification. Include this as a part of the employer s safety policy. Specify that an employee does not have to disclose a drug or medical condition to comply. State that, once disclosed, the employer reserves the right to send employee for fitness-for-duty evaluation with copy of job description. Encourage employees to first provide their own physician with a copy of their job description and make a fitness-for-duty determination. State that the employer reserves the right to make the final fitness-for-duty determination. 28

29 Medical Marijuana Step 3: Job Descriptions Update job descriptions To comply with the ADA, every job description should list Essential Job Functions. If categorized as a safety-sensitive job, one essential function should be the ability to work in a constant state of alertness and in a safe manner. Employers should also be familiar with the impairing effects of marijuana in the workplace: Inability to accurately gauge lengths of time and distance Inability to cope with sudden changes in surrounding areas and/or emergency situations Loss of balance Visual/auditory hallucinations Non-caring, uncommitted, unconcerned attitude Decreased cognitive reasoning Decreased motor coordination Inability to concentrate or remain focused on a single thought or idea Increased drowsiness, fatigue, and lethargy 29

30 Medical Marijuana Step 4: ADA Compliant Policy Adopt an ADA compliant policy on reasonable accommodation: In the pre-duty prescription medication and impairing effects disclosure policy, state that the employer does not accommodate the use of medical marijuana by safety-sensitive employees. Have ADA reasonable accommodation handbook language that discusses the typical interactive steps (beneficial risk reduction practice). Focus on individualized assessments based on essential job duties (the linchpin of the ADA). 30

31 Medical Marijuana Step 5: Communicate Clearly communicate policies to employees: Include clear information about the employer s position on medical marijuana in its drug and alcohol testing policy. Discuss workplace-related impairing effects of marijuana. Make safety the focus of the policies. Be aware of state laws (do not take adverse action or impose disciplinary action without consulting with legal counsel). Treat medical marijuana like another impairing effect prescription medication or substance. 31

32 Medical Marijuana Other Considerations To whom the law applies Quantity of marijuana permitted How it can be obtained/accessed Liability protections Statutory requirements for authorized use and the illnesses/medical conditions covered by each statute, as applicable 32

33 Contact Information Thank you for attending! Landegger Baron Law Group* NOVAtime Technology, Inc. Roxana E. Verano, Esq Ventura Blvd., Suite 1200 Encino, California Daily Drive, Suite 325 Camarillo, California Los Angeles Office: Ventura County Office: Scott Rose, Enterprise Sales 1440 Bridgegate Dr., Suite 300 Diamond Bar, California Headquarters: *Landegger Baron Law Group is of counsel with a major Employment Law Firm that has offices in 23 states. LBLG is able to represent employers interests throughout the Northeast, Southeast, and Midwest regions of the United States.

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