To commemorate Equal Pay Day, Sen. Tom Harkin (D-Iowa) and Rep. Eleanor Holmes Norton (D-DC) reintroduced the Fair Pay Act (S. 904, H.R. 2151). Continue reading on Littler's Washington DC Employment Law Update blog.
On November 6, 2008, the Ninth Circuit Court of Appeal, issued an opinion in Oracle v. Sullivan, 547 F.3d 1177 (9th Cir. 2008), which came to three important conclusions regarding the reach of California law, including the following:
First, California's overtime laws may apply to nonresident employees (in the case itself, individuals from Arizona and Colorado were involved) for those periods of time that the employees temporarily work in California;
Second, the court found that a company that has a sufficient presence in the state, such as Oracle, can be required to comply with California law without violating that employer's due process rights; and
Third, the court found that California's unfair competition law does not apply to acts based on alleged federal wage law violations that occur outside of the state.
This opinion was reported in our earlier blog posting, Federal Court Finds California Law Applies to Out Of State Workers.
Several new wage and hour bills made it through various state legislatures during the first quarter of the year. Below is a wrap up of new developments (including regulatory updates) since the beginning of the year.
Arkansas House Bill 1552 Effective 7/17/2009. Requires employers to provide unpaid break time and reasonable locations for expressing breast milk.
California Assembly Bill x2 5 Effective 1/1/2010. Eases the requirements for an alternative work week. For additional information see our previous Blog entry, Requirements for Use of Alternative Workweek in California Eased Slightly.
Iowa Senate File 618 Effective July 1, 2009. Updates civil and criminal penalties of up to $10,000 for the illegal use of child labor and from $100 to $500 per violation for workplace labor violations. For additional information see our previous Blog entry New Mexico and Iowa Toughen Penalties for Wage and Hour Violations.
Massachusetts Senate Bill 2438 Effective 4/9/2009. A mother may breastfeed her child in any public place or establishment or place which is open to and accepts or solicits the patronage of the general public and where the mother and her child may otherwise lawfully be present. The statute doesn't specifically mention employment, however it can be construed to include places of employment.
Montana House Bill 101 Effective 3/20/2009. Revises the time period that an employer may withhold money from an employee's final paycheck in cases of theft or property or theft of funds.
Missouri Regulation 8 MO-ADC 4.010 et seq Effective 3/30/2009. The Missouri Department of Labor's minimum wage regulations expressly adopts interpretations of the FLSA, and federal regulations. For additional information see our previous Blog entry, New Missouri Wage and Hour Rules Reintroduce Federal Interpretations.
Nevada Minimum Wage and Overtime Rates Announced Effective 7/1/2009. For more details see our previous blog entry here.
New Mexico House Bill 849 Effective Jun 19, 2009. Allows workers to collect treble damages against employers that violate the state's $7.50-an-hour minimum wage law. For additional information see our previous Blog entry New Mexico and Iowa Toughen Penalties for Wage and Hour Violations.
North Dakota Senate Bill 2344 Effective September 5, 2009. Provides that if the woman acts in a discreet and modest manner, a woman may breastfeed her child in any location, public or private, where the woman and child are otherwise authorized to be. Although this portion of the new law it does not expressly mention employers, its terms are broad enough to apply to the workplace.
Oregon Regulation OR-ADC 839-020-0050 Effective 1/12/2009. Clarifies meal and rest period requirements in situations where providing a 30-minute uninterrupted meal period is not feasible. For additional information see our previous blog entry here.
US House Resolution 11 Effective 5/28/2007. The Lilly Ledbetter Fair Pay Act, which Congress made retroactive to May 28, 2007, extends the time period for employees to assert pay discrimination claims by making each paycheck a discriminatory act; not just the initial pay determination. For further information, see Littler ASAP Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lilly Ledbetter Fair Pay Act.
Virginia Senate Bill 1264 Effective 7/1/2009. Allows employers to utilize prepaid credit cards or a debit card without employee's consent for employees hired after January 1, 2010, when the employee has not designated a financial institution to receive direct deposit of the employee's wages.
Wisconsin Regulations DWD 272.01 et seq. Effective 7/24/2009. Changes the state minimum wage to $7.25 an hour effective July 24, 2009. Also changes opportunity wage and allowance for boarding.
Within days of each other, the governors of New Mexico and Iowa signed legislation that significantly increases the penalties for wage and hour violations in those states. The New Mexico statute also creates new causes of action.
On April 6, 2009, the governor of New Mexico signed House Bill 489 into law. The new law becomes effective on June 19, 2009. HB 489 amends the state Minimum Wage Act to prohibit employers from retaliating against employees for filing claims or asserting rights under the law, for helping someone else pursue a claim, or for notifying someone else about their legal rights.
HB 489 also lengthens the statute of limitations for wage claims from one year to three years after the last violation occurs, and provides that an investigation by the Labor Relations Division of the Workforce Solutions Department tolls the statute of limitations. In addition, HB 489 contains a continuing violations provision, meaning that a civil action brought under the Minimum Wage Act may encompass all violations that are part of a continuing course of conduct, no matter when they occur.
Continue Reading...President Obama has chosen Lorelei Boylan as his nominee for Administrator of the Department of Labor’s Wage and Hour Division. Continue reading on Littler's Washington DC Employment Law Update blog.
The California Court of Appeal in Etheridge v. Reins International California, Inc. has held that mandatory tip-pooling policies that allow tips to be shared with staff who do not provide direct table service are enforceable. California restaurant employers and other employers that allow tips would be well advised to review, and if necessary, amend mandatory tip-pooling policies. See Littler ASAP California Appellate Court Protects Employers Who Allow Tips for Dishwashers for more information.
Pursuant to an annual adjustment required by the Nevada Constitution, Governor Jim Gibbons has announced the 2009 minimum wage and overtime rates.
Nevada has a two-tiered minimum wage rate dependent on whether an employer offers qualifying health benefits. As of July 1, 2009, the minimum hourly wage for employees who receive qualified health benefits from their employer will be $6.55. For all other employees, the minimum wage will be $7.55 per hour.
In Nevada, employers must pay one and one-half times an employee's regular rate of pay when an employee: (1) is paid less than one and one-half times the applicable minimum wage rate and (2) works more than 40 hours in any workweek or more than eight hours in any workday, unless otherwise exempted by Nevada Revised Statutes 608.018. Therefore, effective July 1, 2009, the daily overtime may apply if the employee to whom qualifying health benefits have been offered by the employer is paid less than $9.825 per hour. For an employee who is not offered health benefits, daily overtime may apply if the employee is paid less than $11.325 per hour.
This blog entry was authored by Roger Grandgenett.
This final segment of our three part series on the Multi State District Office (MODO) focuses on creating informal agreements with your MODO with regards to voluntary compliance.
Of course, most District Offices, in addition to MODO responsibilities, must also conduct and manage its own investigation case load, and tend to have more work than resources. So, if a company has not had multiple investigations, a large investigation covering multiple facilities or a history of non-compliance, the employer will have little (or no) contact with its MODO.
However, MODOs are also tasked with encouraging employers to create voluntary compliance programs and to work with cooperatively with employers who choose to create such programs. Thus, MODOs will welcome an employer interested in developing a cooperative program to maintain compliance.
There are no written or formal agreements between MODOs and employers – and, in most cases, we would not recommend entering a formal agreement. However, it is very beneficial for companies to create informal arrangements with their MODOs. The arrangement usually begins with a meet and greet between the District Director of the MODO and senior company executives (such as the General Counsel and/or Vice President of Human Resources). During this meeting the employer demonstrates their commitment to compliance and designates a contact person who will deal directly with the DOL. In return, the company should ask the MODO to notify the contact person whenever a complaint is filed against the company.
Both the DOL and employers benefit from this relationship. First, the employer’s contact person is able to develop a relationship with the MODO. If a complaint is filed, there is less tension on both sides and the matter is usually resolved quickly and efficiently. Rather than an investigator asking a manager for payroll records, the MODO will call the contact person and obtain the records and set up interviews if necessary. This process helps the employer avoid unreasonable investigators, and if a bad investigator is assigned to investigate the company, the employer can seek relief from the MODO. The process is less disruptive and easier on both parities. Another advantage of working with a MODO is the ability to obtain their assistance when conducting self audits or correcting payroll errors. Finally, the DOL usually will not assess civil money penalties or interest to employers who develop positive working relationships with them.
With increased wage and hour enforcement on the horizon, it is more important then ever to develop a good working relationship with your company’s MODO. Creating a partnership with your MODO now is perhaps the best preventative measure you can take to avoid contentious and unpleasant investigations in the future.
This blog entry was authored by Salvador Simao.
This second part of our three part series on the Main Office District Office (MODO) focuses on the specific procedures that apply to multi-state enterprises. A previously reported in Part I: Who's Your MODO, Littler's Salvador Simao, a former trial attorney with the Department of Labor (DOL), discusses ways in which multi-state employers can effectively partner with the DOL.
Although not generally known by employers, the Wage and Hour Division has procedures to coordinate enforcement efforts for multi-state employers. These procedures are outlined within Chapter 61 of the Wage Hour Field Operations Handbook (FOH), which is not released to the public. The purpose of these procedures is two fold: First, to ensure consistent results when investigating similar issues in different facilities in different geographic locations. Second, to enable the Wage and Hour Division to uncover national, systematic violations.
In general, these procedures assigns each multi-state employer to the District Office (DO) with geographic jurisdiction over the employer’s company headquarters (or Main Office – MO). Thus, the acronym for the multi-state employer process is the MODO process – the Main Office District Office. The goal of the MODO process is to obtain maximum compliance while using DOL resources as efficiently as possible.
Of course, investigators have primary responsibility for conducting a wage-hour investigation in a single facility. Under the MODO process, however, an investigator can recommend that the investigation be expanded to cover additional facilities or even all the facilities of the employer if s/he uncovers a violation that appears to be caused by a company-wide policy or process. The decision to expand the investigation beyond one facility or one state is made by the MODO, who will consider the employer’s overall enforcement history in making that decision.
It is also the MODO’s responsibility to independently monitor the multi-state employers headquartered within its jurisdiction. The MODO will look for similar violations occurring at an employer’s facilities in different states to determine whether a national investigation is warranted. The MODO will create a strategy to ensure the employer comes into and remains in compliance with wage-hour laws. To this end, the MODO will receive reports at the conclusion of every investigation involving the multi-state employers headquartered within its jurisdiction.
These responsibilities of the MODO are generally accomplished using the Wage and Hour Division’s enforcement database, called WHISARD, which contains information regarding every investigation conducted by the Division.
The final segment of our three part series on the Multi State District Office (MODO) will focus on creating informal agreements with your MODO with regards to voluntary compliance.
This blog entry was authored by Salvador Simao.
In this three-part series, Littler shareholder Salvador Simao, a former trial attorney with the Department of Labor (DOL), discusses ways in which multi-state employers can effectively partner with the DOL. The first part examines the organization of the DOL Wage & Hour Division, and enforcement efforts under new Secretary of Labor Hilda Solis.
In her first public appearance after Senate confirmation, Secretary of Labor Hilda Solis declared to the AFL-CIO Executive Council, “There is a new sheriff in town.” Armed with reports from the Congressional General Accounting Office (GAO) criticizing enforcement efforts by the Wage and Hour Division, Secretary Solis is well positioned to begin changing the culture at DOL.
Already, the Wage and Hour Division is hiring 100 new investigators. Congress gave DOL funding for the new investigators in the stimulus package. Under the Bush administration, although collecting more back wages than the Clinton administration, the number of wage-hour investigators declined from 950 to 750. In short, we can expect to see increased wage-hour enforcement in the near future.
What can employers do to minimize or avoid aggressive enforcement? One way is to seek a cooperative relationship with your company’s Wage and Hour Division MODO. What is a MODO? Read on – we explain it all below.
Organization of the Wage and Hour Division
The DOL’s Wage and Hour Division enforces the Fair Labor Standards Act, Family Medical Leave Act, the Employee Polygraph Protection Act, the Consumer Credit Protection Act, and prevailing wage laws. Generally, the Wage and Hour Division will conduct an investigation of a company if it receives an employee complaint or as part of a targeted initiative (e.g., a survey of child labor compliance in quick service restaurants). At times, follow-up investigations will be done to ensure continued compliance with the laws.
Investigations are performed out of about 50 district offices. Each district office has a District Director (DD), one or two Assistant District Directors (ADD) and, of course, investigators. Some districts are so large that they have satellite offices. For example, in North Carolina the district office is Raleigh, but there is also a “field office” in Charlotte. Field Offices are normally run by an ADD who reports to the DD in the district office.
District Directors report into a regional office, which in turn reports into the national office. The Wage and Hour Division has five regional offices: the Northeast Region in Philadelphia, the Southeast Region in Atlanta, the Southwest Region in Dallas, the Midwest Region in Chicago and the West Region in San Francisco. Each regional office is run by a Regional Administrator and a Deputy Regional Administrator. Employers rarely deal with the regional and national offices, as most investigations are resolved at the district office level.
As is true in any organization, individual investigators have different styles and approaches when it comes to conducting audits. However, there are ways to reduce anxiety and ensure consistency in various audits if your company has locations in multiple states. In the second part of this series, we explain the role of the Main Office District Office (MODO) and the specific procedures that apply to multi-state enterprises.
This blog entry was autored by Salvador Simao.
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