HR Question: Should I Be Paid For Travel Time?

Posted on March 10, 2010 by Christopher McKinney

 We get a high volume of basic HR-related questions here at the HR Lawyer's Blog.  So many, in fact, that we are sometimes not able to respond to each and every one of them individually as we would like. So it occurred to us that it might be a good thing to post some of these questions and answer them publicly on the site.  Thus we begin the first in what we hope will be a regular series titled "HR Questions."

 

Today's question involves application of the Fair Labor Standards ("FLSA") to travel time.  A reader asks:

 

My job requires me to drive from home to various work sites all over the state for my job.  The company does not provide me with a vehicle to drive so I have to use my own and they only start paying me for my time after I arrive at the work site.  Is this legal?

 

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Federal Minimum Wage Increases to $7.25 Today

Posted on July 24, 2009 by Christopher McKinney

Just a reminder that the federal minimum wage increases to $7.25 Today, July 24. With this change, employees who are covered by the federal Fair Labor Standards Act (FLSA) will be entitled to no less than $7.25 per hour.

Employers can download an updated FLSA Minimum Wage Poster here for posting in the workplace.

 

 

 

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Majority of Americans Oppose Forced Arbitration

Posted on April 30, 2009 by Christopher McKinney

The Employee Rights Advocacy Institute For Law & Policy and Public Citizen have completed a National Study of Public Attitudes on Forced Arbitration.  The release is no doubt an effort to support the Arbitration Fairness Act, which is currently in Congress.

The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners.

The survey of 800 likely voters nationwide found that:

  • A solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.
  • Similarly strong majorities (59%) support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.
  • Even after voters hear arguments in favor of, and opposed to, forced arbitration, opposition to the practice holds firm. Just one-third of the electorate supports the practice.
  • Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.
  • Most Americans are unaware of the rights being taken away from them. Approximately two-thirds cannot remember seeing anything about forced arbitration in either Terms of Employment or Terms of Agreement for goods and services.

Here is a link to the study materials.

Here are more materials on the current version of the Arbitration Fairness Act.

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Do Federal Judges Discriminate Against Discrimination Claims?

Posted on February 20, 2009 by Christopher McKinney

The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court

The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.

"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."

This is certainly not news to those of us that work in the employment law trenches day in and day out.  Employment law is a different animal than most other types of cases that courts have to deal with.  Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken.  This has led to some pretty tortured legal tests and summary judgment standards across the country.  And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases.  I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases. 

The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore.  I think this may be going overboard a bit.  Employment cases are certainly not for the faint of heart but they are winnable. 

One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists.  This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal. 

Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law.  Employment cases are nothing like personal injury cases.  In my opinion, this is not an area of the law where lawyers should "dabble."  The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner. 


Source: WSJ Blog

Hat Tip: Ross Runkel

 

Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case.  Watch for it.

 

 

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Wal-Mart to Pay Over Half a Billion Dollars to Settle Overtime and other FLSA Lawsuits

Posted on January 2, 2009 by Christopher McKinney

Walmart has agreed to pay up to $640 million to settle 63 wage and hour class action lawsuits that have been pending against the company for several years.  The company, which has been fighting such suits for years, apparently finally decided to simply get the matter behind it.  In its statement, the Company indicated that the lawsuits were regarding facts and circumstances of many years ago and that it does not represent Walmart's current approach to employee compensation issues.

As part of the settlement, Walmart has agreed to continue to use various electronic systems and other measures designed to maintain compliance with its wage and hour policies and applicable law.

 

Previous Similar Stories:

Wal-Mart Agrees to Pay $34 Million for Overtime Violations

Does Wal-mart need a hall monitor?

 

 

 

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Obama Nominates Hilda Solis for Labor Secretary

Posted on December 19, 2008 by Christopher McKinney

Barack Obama has nominated California Democratic Rep. Hilda Solis as his labor secretary.  Solis, the daughter of two Hispanic immigrants, has been in Congress since 2000.  She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.

Solis received her degrees from California State Polytechnic University, Pomona and the University of Southern California and worked for two federal agencies in Washington, D.C. She was elected to the California State Assembly in 1992 and to the California State Senate in 1994. She was the first Hispanic woman to serve in the State Senate, and was re-elected there in 1998. She became known for her work toward environmental justice and was the recipient of the John F. Kennedy Profile in Courage Award in 2000.

Solis is well-liked by labor.  Service Employee International Union ("SEIU") President Andy Stern hailed the nomination of Solis: 

"As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.

From the streets of Los Angeles where she marched with the janitors who were fighting for jobs with dignity that can support a family through SEIU's Justice for Janitors campaigns, to the halls of Congress where she has been an outspoken supporter of healthcare rights for all, a livable minimum wage, and workers' right to come together for a voice on the job, Hilda Solis has never backed down from the good fight to make the American Dream available to all."

You can find Congresswoman Solis' Homepage here.  It has links to her statements and bills that she is attached to. 

The Associated Press quoted Randy Johnson, vice president for labor issues at the U.S. Chamber of Commerce, with regard to what the response of business groups would be to her nomination: "There’s a new sheriff in town, but they’ll still have to deal with the business community, and they know it.  We would hope she will continue to support programs that help educate employers about voluntary compliance with the law rather than pursue heavy-handed enforcement.”

 

Sources: AP, Wikipedia, SEIU Press Release



 

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The Presidential Candidates on HR Issues

Posted on September 15, 2008 by Christopher McKinney

As promised, here is additional information regarding what each of the presidential candidates plans to do with regard to workplace and HR issues.  This information is taken directly from the candidates' respective campaign websites without any editing or alteration whatsoever.

John McCain

John McCain is calling for National Commission on Workplace Flexibility and Choice. This Commission would bring together a bi-partisan set of leaders representing workers, small and large employers, labor, and academics.  The Commission would make recommendations to the President on how modernizing our nation’s labor laws and training programs can help workers better balance the demands of their job with family life and to enable workers to more easily transition between jobs.

The Commission would examine the following issues that John McCain believes are important to workplace flexibility and choice:

  • Modernizing the nation’s labor laws so that they allow for more flexible scheduling arrangements
  • Ensuring that the nation’s labor laws don’t get in the way of working at home
  • Promoting telework so that workers can spend less time commuting
  • Making health more portable so that workers don’t lose their benefits when they switch jobs
  • Ensuring that workers can choose retirement plans that best suit their needs
  • Providing workers with more choice in job training assistance so that they can build the skills they need for new and better jobs

Barack Obama

Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.

  • Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
  • Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
  • Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
  • Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
  • Create New Job Training Programs for Clean Technologies: The Obama plan will increase funding for federal workforce training programs and direct these programs to incorporate green technologies training, such as advanced manufacturing and weatherization training, into their efforts to help Americans find and retain stable, high-paying jobs. Obama will also create an energy-focused youth jobs program to invest in disconnected and disadvantaged youth.
  • Improve Transition Assistance: To help all workers adapt to a rapidly changing economy, Obama would update the existing system of Trade Adjustment Assistance by extending it to service industries, creating flexible education accounts to help workers retrain, and providing retraining assistance for workers in sectors of the economy vulnerable to dislocation before they lose their jobs.
  • End Tax Breaks for Companies that Send Jobs Overseas: Barack Obama believes that companies should not get billions of dollars in tax deductions for moving their operations overseas. Obama will also fight to ensure that public contracts are awarded to companies that are committed to American workers.
  • Reward Companies that Support American Workers: Barack Obama introduced the Patriot Employer Act of 2007 with Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) to reward companies that create good jobs with good benefits for American workers. The legislation would provide a tax credit to companies that maintain or increase the number of full-time workers in America relative to those outside the US; maintain their corporate headquarters in America if it has ever been in America; pay decent wages; prepare workers for retirement; provide health insurance; and support employees who serve in the military.
  • Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
  • Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
  • Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
  • Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
  • Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
  • Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.
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Obama on The Dignity of Work

Posted on September 3, 2008 by Christopher McKinney

Barack Obama recently spoke at some length regarding his views regarding labor and workplace issues.  The video of his remarks is included below.  Leave a comment and tell us what you think.

P.S. I am looking for video of McCain addressing work-related issues and will post it up as soon as I find it.   

 

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Tyson Foods Files Reply Brief in Effort to have Supreme Court Redefine "Work"

Posted on May 22, 2008 by Christopher McKinney

On Tuesday, the petitioner filed this reply brief in the case of Tyson Foods, Inc. v. de Ascencio. The issue is “whether the time spent donning light protective gear constitutes ‘work’ under the Fair Labor Standards Act if the activities do not require a significant level of exertion.” The cert. petition can be found here and the respondent’s brief in opposition here, while the opinion of the Third Circuit can be found here.


Related Posts:

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Olive Garden / Red Lobster Owner Settles Wage-And-Hour Claim for 11 Million

Posted on April 2, 2007 by Christopher McKinney
Darden Restaurants Inc., the owner of Red Lobster and Olive Garden, disclosed Thursday that it has settled with a group of former employees who sought unpaid overtime wages and penalties and will pay up to 11 million dollars. Beginning in 2002, a total of five purported class action lawsuits were filed in Superior Courts of California (two each in Los Angeles County and Orange County, and one in Sacramento County) in which the plaintiffs allege that they and other current and former service managers, beverage and hospitality managers and culinary managers were improperly classified as exempt employees under California labor laws. According to its SEC filings, Darden has agreed to pay up to a maximum total of $11.0 million to settle all five cases. The settlement agreement has received final court approval and payment of the settlement proceeds is expected to occur before the end of fiscal 2007.

This is not Darden's first big wage/hour settlement in recent years. From a year ago:
More than 40,000 current and former hourly workers at California Red Lobster and Olive Garden restaurants will share $9.5 million as part of a settlement involving claims that they were prevented from taking breaks, and that they were required to purchase and maintain their own employee uniforms. Red Lobster workers from more than 40 locations in California who worked there from February 21, 1998 to the present will share $5.5 million, while Olive Garden employees who worked from March 24, 1999 to the present will share another $4 million.

Two food servers at the Brea Red Lobster restaurant filed the first class action complaint in Orange County Superior Court in February 2002, alleging that Red Lobster refused to allow breaks to its non-exempt workers throughout the State of California. The complaint was subsequently amended to include damages and restitution for Red Lobster's former policy of charging workers for uniforms, and for making the employees maintain their own uniforms. In March 2003, an Olive Garden employee filed a similar complaint, seeking certification of all GMRI workers, including both the Red Lobster and Olive Garden chains. In May 2004, while the first case was on appeal from an Orange County Superior Court ruling denying the defendant's motions for summary judgment and to compel arbitration, a third lawsuit was filed in Sacramento, California.

Under California Labor Code § 226.7 and Industrial Welfare Commission Wage Order 5, employees are entitled to a paid ten-minute break for every four hours of work, or major fraction thereof. Employees working at least 3½ hours are entitled to one paid break, and earn a second paid break after six hours. Furthermore, employees who work more than five hour shifts are entitled to a 30 minute break which need not be paid. Under California Labor Code § 450 and Industrial Welfare Commission Wage Order 5, employers are required to pay for the cost of purchasing and maintaining employee uniforms and may not require employees to purchase anything of value, including uniforms, from the company.
Source: California Wage/Hour Law
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Wal-Mart Agrees to Pay $34 Million for Overtime Violations

Posted on January 31, 2007 by Christopher McKinney
Wal-Mart Stores, Inc., has agreed to pay nearly $34 million in back wages and interest for calculating overtime incorrectly over a span of almost 5 years. The agreement with the Department of Labor covers 86,680 employees who worked for the company from February 1, 2002 to January 19, 2007. The department says that Wal-Mart brought the matter to its attention after an internal audit raised concerns regarding overtime calculations. Wal-Mart says it failed to include periodic bonuses and other earned income in determining some employees' regular rate of pay for overtime purposes. In addition, some overtime payments were based on a regular rate calculated for each two-week payroll period, when they should have been calculated weekly.LaborProfBlog makes two points regarding this story:
  1. He says Wal-Mart deserves credit for self-reporting this error; but
  2. It is very surprising that Wal-Mart's HR department allowed this to happen at all. This is not a complicated area of FLSA law.
While Wal-Mart does deserve some credit for self-reporting the issue, it is likely they did so because it was simply good business. By self-reporting and negotiating directly with the Labor Department, they were apparently able to cut a deal in which they are not required to pay any interest or penalties (including standard double damages) that they would most likely have had to pay had this been brought as a lawsuit against the company. It is also as yet unclear to me whether the Labor Department obtained all of the pay records at issue and calculated the wages owed themselves or whether they simply took Wal-Mart's word for what was owed.
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