Overtime and travel – Legal Posts

Overtime and travel – Legal Posts – includes multiple articles

Matthew T. Miklave

Q: If overtime is for actual hours worked, would it be correct to say that an employee who worked a 40-hour week and had 12 hours of travel time, for a total of 52 hours, is not entitled to overtime pay?

A: There are two kinds of employees, and thus two different answers:

1. Exempt employees, unless you voluntarily offer it, do not get overtime.

2. Nonexempt employees must be paid for travel time under certain conditions. If the employee drives himself, he is on the clock unless the employer offered public transportation as an alternative.

Employees who travel by common carrier must be paid for the time spent traveling by common carrier (i.e., not the time to get to the bus station) unless the trip is for more than one day. If the trip is for more than one day, then the employee must be paid for all travel time that takes place during normal working hours (even if the travel occurs on a day when the employee would normally not be working).

So, that means passenger travel out of town for an overnight stay during non-working hours need not be on the clock, unless the employee is driving the plane!

Holiday from Holidays

Q: In the offer letter to a prospective employee, is it legal to advise that during their probationary period they will not accrue or be entitled to holiday requirements?

A: There is nothing illegal about alerting prospective employees to material terms and conditions of their employment in an offer letter. However, you may want to give some thought to your use of the term “probationary period.” Remember that employment is at will, unless you form an agreement to the contrary.

The risk with “probationary periods” is that the employer (perhaps inadvertently) may create an agreement with the employee that, upon completion of probation, the employee has some right to continued employment that he would not otherwise have under the employment-at-will doctrine.

Is HR Personally Liable?

Q: We have a mid-manager who is consistently verbally accosting his staff and other employees, myself included. His manager and the CEO are aware of the situation. As HR director, I have continually made recommendations for disciplinary actions (mandatory anger management, management training, etc.), to no avail. What’s my liability when someone finally has had enough and decides to sue the company on grounds of harassment?

A: You are asking about your personal liability as the HR director for continued discrimination by a manager whom the company has tolerated. From your personal point of view, the news is good and bad.

First the good: there is no individual liability under Title VII, in the view of the vast majority of federal courts that have considered the issue. Now the bad: there is individual liability under some states’ anti-discrimination laws. You may want to run the issue of individual liability past your company’s legal counsel. If those in your company who are protecting this manager are not sufficiently motivated to act on the basis of the company’s exposure to liability discipline, an explanation from legal counsel that they can be sued in their personal capacity (if this is true under your state’s law) may provide added incentive. Legal counsel may be able to address your personal concerns.

Talking About Harassment

Q: I have an employee who got into an argument with her supervisor and made a remark that she wasn’t the only one being harassed.

When asked what she meant, she changed the subject and would not talk about it. The manager/supervisor feels that I should bring each female employee into my office and talk to them, although with no idea what I should say.

I feel that maybe I should just talk to the employee who made the remark. I need your input.

A: There are two issues here. First, what should you do with respect to the alleged harassment of the female employee you spoke to? Second, what should you do with respect to her comments about other employees?

For both issues, the specifics of what was said are important. There can be no doubt any longer than an employer is obligated to take prompt action to eliminate unlawful harassment based on race, gender, or any other protected basis. Toward that end, every employer should have an “anti-harassment” policy that it enforces.

With respect to the employee, you need to understand what she claims happened to her. Does the behavior that she is alleging violate your company’s anti-harassment policies? If so, follow your policy’s instructions, which probably require that the matter be investigated. (Many employers have a “zero tolerance” policy toward harassment. If you do not have a policy, consult legal counsel about developing one.)

Similarly, with respect to the third parties, you need to assess whether any violation of your policies has been alleged. For our money, we have no problem with calling employees into the office to see how they are doing and to ask them if there is anything going on that causes them concern. This is a pretty tame way of seeing if there are any issues here. If there are none, you have spent a few hours getting to know folks better. If there are issues, you’ll probably hear about them.

Overtime Exemptions

Q: Is it up to a company to decide which exemption test–either the professional or computer-related special exemption–to use for a computer analyst who has independent judgment and whose duties are technically specialized in nature?

A: The answer is yes and no. Yes, a computer system analyst could qualify under either the professional exemption or the special computer exemption, or both. No, in the sense that it is not up to the employer to “classify” the employee under one standard or another.

For example, suppose the individual meets the criteria for an exempt professional, but you classify the employee as exempt under the special computer exemption. If you were wrong–i.e., if the employee did not earn a sufficient wage to qualify under the special computer exemption but was nevertheless an exempt professional–you would not lose the exemption.

It’s not like a professional playing pool, where you have to “call the shot.” In that game, if the ball doesn’t go in the hole you said that it would, it doesn’t count.

It’s more like amateurs (like us) playing pool. If the ball goes in any pocket, even if it is not the one you were aiming for, the ball counts. If the employee is exempt under any criterion, even if it is not the one you “declared,” then the employee is exempt.

Extra Affirmative Action Page

Q: Do you recommend that employers have the voluntary Affirmative Action Survey on the actual job application or on a separate sheet of paper?

A: It should be on a separate page, with a disclaimer stating that the information is being requested solely for purposes of complying with (either state or federal or both) affirmative-action laws. Of course, make sure that you have an affirmative-action plan before you start to gather the data.

Credit Checks

Q: We are determining whether we should institute credit checks as part of our screening process, and if so, for all or some positions. Our research has not shown business improvement due to implementation, or a reduction in company losses. Should we do it?

A: Okay, watch Out, we’re getting on our soapbox.

One of the best things an employer can do to protect its employees and reduce the risk of litigation is to hire good employees. Two really good ways to hire good employees more often are (a) drug testing and (b) background checks.

Both have to be done as required by state law (which can change from place to place) and federal law (which can change from moment to moment). Make sure both drug-testing and background-check policies comply with the laws that apply to your company. If a drug test or a background investigation report gives you a valid business reason for refusing to hire an applicant, then do not hire the applicant. However, make sure that you do not use the mere fact of “criminal conviction” or “bad credit” to refuse to hire an applicant. Use the information contained in the report in the context of the job.

Bad Judgment

Q: An employee is a self-confessed alcoholic, currently in counseling. Many incidents have occurred at work where we know his judgment has been impaired by alcohol. Can we ask him to pass a Breathalyzer test before beginning his workday?

A: You need to be very careful here. A recovering alcoholic will almost certainly be found to come within the protection of the ADA, and probably your state/local anti-disability-discrimination laws as well.

Here, as your employee is currently in counseling, he is a recovering alcoholic, or at least he will portray himself that way, should any disputes arise out of his employment. Do you really want to explain to a jury why you are subjecting him — and only him — to a Breathalyzer test every day?

Alcohol at Events

Q: I would like to hear some thoughts on serving alcohol at company-sponsored events such as picnics, holiday parties, etc. Where does the liability lie if, at a company-sponsored event, the employer states that the company will not pay for any alcoholic beverages, but an employee bellies up to the bar and partakes on his own dime? What happens then if the employee hurts himself, harasses someone, or gets into a car accident on the way home?

A: Ask yourself: how much risk am I willing to take? Some companies find that, at least on certain occasions, there are business advantages to making alcohol available. Those advantages must be balanced against a certain level of risk; the company may be sued and/or held liable under any number of theories, a few of which we describe below.

1. Harassment. Without belaboring the point, some may believe that the presence of alcohol at a company-sponsored event increases the likelihood of harassment, whether based on sex, race, or another protected group.

2. Personal injury. Assume, for example, that one of your employees drinks (more than the company might desire) and then gets involved in an automobile accident. There is every reason to believe that an injured third party will look to hold the company among the responsible parties.

3. Workers’ compensation. Imagine an injury at the event itself.

You get the idea. These legal risks can be reduced (not eliminated) with a well-drafted and well-implemented policy. See legal counsel.

Applicant Won’t Sign

Q: An applicant refuses to sign her application for employment because it says, “I further authorize all courts, probation departments, prosecutor’s offices, boards, employers, credit companies, other institutions, and agencies without exception to furnish the company or its representatives any information any of them have concerning me.” She says that the request for “credit companies, other institutions, and agencies without exception” is an invasion of privacy and gives too much blanket authority. She will only sign it if those words are removed.

Can she be denied employment based on her refusal to sign unless we take out these specific phrases?

A: First: In order to legally conduct a routine credit background check, the authorization (under FCRA) must be contained in a separate document. The language stuck on the bottom of the employment application will no longer cut it.

Second: In order to legally conduct even a routine credit check, specific language must be used that may make it sound more offensive than it is.

Third: If the applicant does not want to be subject to a credit check, then do not hire the applicant. As long as you comply with your state’s legal disclaimer and notice provisions, you can condition an applicant’s being hired on the background check. If the applicant does not like it, then she can be someone else’s employee.

Cutting Pay

Q: Is it legal for us to make people take a 10 percent pay cut as a temporary cost-reduction measure, then require them to work the same hours?

A: Yes. In fact, we see it as a great way for everyone to share the pain of a cutback rather than laying off a bunch of people.

The Ex Is Back

Q: My ex-spouse has recently become employed at my place of work. She is employed through a temporary employment agency, but the likelihood of her being hired on full-time is very high. We are in the middle of an ugly child-custody suit and she has repeatedly harassed me at home. Now I feel she will do the same to me at my place of work.

I do not have any specific allegations of harassment at my work (yet). However, I would like to know what preemptive options I have at my disposal because of the following: 1) I worked here first, and my role is somewhat industry-specific in nature (it would be much more challenging for me to find a new job than for her). 2)I am a full-time employee with the firm and she is a “temp.” 3) Although we work in different departments, I regularly interface with her department manager and team leaders. Therefore, the possibility of our running into each other is high and could certainly become a hostile situation.

A: Employees have the “tight” to be free of harassment based on a protected characteristic (i.e., gender, race, national origin, age, and the like). Employers are not obligated to create a work environment free from “harassment” in general. All work is “harassing” in one sense or another. Furthermore, absent a written or oral contract of employment, no employee has greater “rights” than any other employee. All employees are equal. (This is America, after all.)

Thus, you are going to have to find a way to get along with your ex-spouse. It is as much your responsibility as it is hers. I would recommend that you speak to your HR colleagues about the issues and your concerns. At the end of the day, be professional and remember that “cream rises to the top.”

Pre-Employment Checks

Q: Our company has recently adopted a policy that requires applicants to agree to a verbal inquiry of their current employer for a pre-employment check prior to our providing an offer. Is there any violation of privacy in this practice? If a prospective employee lost his or her current job due to this practice, would there be liability on our part?

A: Requiring references from current employers is not at all uncommon. So long as the applicant is advised of this policy and given the opportunity to decline (and decline the opportunity to be hired), we do not see much of a problem. Remember, such reference checks could amount to a “background investigation” that would require compliance with FCRA.

Proof of Salary

Q: Recently we interviewed a candidate who did well in the interview process. However, there is some concern as to his veracity in quoting his current salary.

Would it be legal to ask for proof of his stated salary amount? How can that information be verified?

A: There could be many good reasons to ask for current salary information.

If the employee is taking a big pay cut, you have to ask yourself:

* Is this a sign that the employee was terminated for cause?

* Is this a sign of some problem before it starts?

* If the salary you are offering is less than the salary the employee once made, will he jump at the first “better” offer to come his way, after you have spent time and effort recruiting, hiring, and training?

We think all of these are valid reasons to ask for salary information.

Matt Miklave and A. Jonathan Trafunow are partners in the law firm of Epstein, Becker & Green PC., one of the nation ‘s largest firms representing management exclusively in labor and employment law, employee benefits, and related litigation.

This Q&A is from the Workforce Legal Forum (workforce.com/legal), where you can post questions for Miklave and Trafimow, of Epstein, Becker & Green P.C. The firm and Workforce aren’t providing legal advice and aren’t liable for the consequences of any post on the forum.

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