Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

What if the travel and jury service time exceeds the employee’s usual number of hours worked? The Opinion provides an example of an employee traveling 2 hours and spending 4 hours in jury duty. Since the Opinion’s analysis does not take into consideration how long an employee would normally work, it would appear the Opinion interprets the phrase “usual compensation” as the employee’s rate of pay, rather than the employee’s amount of pay. An employee who lives an hour away from work and works an 8-hour shift would “usually” be compensated for 8 hours. Under the new Opinion, if the employee also lives an hour away from court and sat in court for 8 hours, it would appear the employee would be entitled to 10 hours of pay – 2 hours more than the employee’s “usual compensation.” The new Opinion does reference an earlier Opinion which states that what constitutes “usual compensation” would “necessarily vary on a case-by-case basis and would be a question of fact.” However, the AG makes it clear that the jury pay statute is to be given “a broad and remedial effect to correct the injustice of compelling workers to sustain a financial loss because of their service on a jury.”

Does it matter whether the employee is paid on an hourly or a salaried basis? The Opinion does not specifically address this. Again, the one example given presumes an employee being paid on an hourly basis. The only reference to salaried employees confirms the employer’s ability to pro rate an employee’s salary if jury duty is less than the employee’s regular work day. Since the essence of a salary is a set amount regardless of the number of hours worked, it would be logical to infer that this new Opinion should only affect payment of hourly workers, but no such limitation was stated.

The requirement of payment for jury duty does not apply to employers that employ less than five people on a regular basis, and employees who have been employed on a temporary basis for less than six months. Unfortunately, the Opinion does not say whether any other “certain limited exceptions” might also apply in this context. Regardless, it is important that Tennessee employers review their policy regarding pay for jury duty and ensure they are made aware of, and compensate employees for, travel time as well as time spent serving jury duty.

Photo credit: Cheramie Photo

The following changes were made to the regulations:

• WAC 296-126-001 was updated to clarify language, delete the reference to the Industrial Welfare Committee, and add notes referring public employers to RCW 49.12.005(3) and employers to the variance rule in WAC 296-126-130.

• WAC 296-126-002 definitions were revised as follows:
  • “Employer” was updated to reflect the amended definition in chapter 49.12 RCW;
  • “Employee” was clarified by restating the exemptions from the definition;
  • “Adult” was updated by deleting “of either sex”;
  • “Minor” was updated by deleting “of either sex”;
  • “Committee” was deleted since the Industrial Welfare Committee no longer exists; and
  • “Department” and “Director” were added to be consistent with chapter 49.12 RCW.

• WAC 296-126-010 was updated by deleting outdated language that refers to the adult minimum wage as $1.80 an hour. In addition, language was added to address the payment of sub-minimum wage rates under special certificates issued by L&I.

• WAC 296-126-015 was revised to add a new section that explains how to calculate wage rates under special certificates.

• WAC 296-126-030(8) was modified by replacing the term “deductions” with “adjustments” in order to be consistent with other rules.

• WAC 296-126-040 was updated to clarify the requirements for employee pay stubs. The revised regulation requires that employee pay stubs be provided in “a separate written statement from the paycheck.” In addition, the revised regulation clarifies that pay stubs “may be furnished or made available electronically provided each employee has access to receive and copy it on the payday.”

• WAC 296-126-050 was updated to clarify the requirement that, upon receiving a written request from a former employee, an employer must furnish a signed written statement stating the reasons for and effective date of the employee’s discharge within 10 days of the former employee’s request. A note was also added to the regulation explaining that additional recordkeeping requirements are stated in WAC 296-128-010 through 296-128-030.

• WAC 296-126-060 was repealed to eliminate duplicative language requiring an employer of minors to obtain a work permit (the requirement is already provided in chapter 296-125 WAC).

• WAC 296-126-080 was revised to add the specific title of the poster employers are required to keep.

• WAC 296-126-090 was revised to replace the term “industrial welfare committee” with “department” in order to be consistent with RCW 43.22.280 and .282 and RCW 49.12.

• WAC 296-126-096 was repealed because it addressed non-wage and hour issues (manual lifting) that are already covered by the L&I Division of Safety and Health.

• WAC 296-126-130 was updated to clarify the process for employers to obtain wage and hour variances from L&I.

This entry was written by Douglas E. Smith.

Image credit: Dbenbenn.

Section 778.217(d) undermines commuter benefits laws by acting as an inducement for employers not to provide transit subsidies. For example, employers that allow their employees to pay for commuting costs through pre-tax deductions obtain commuter tax benefits and do not incur any additional overtime liability. Conversely, more generous employers that subsidize employees commuting expenses incur overtime liability, which negates the effect of the tax benefit.

There may be a creative solution to this dilemma. Most employers who provide transit subsidies do so through a third party. Employers who provide commuter benefits through a trust or benefit plan should be able to exclude such benefits from the regular rate. The relevant DOL regulation provides that irrevocable contributions to a trust or third party that provides for “old age, retirement, life, accident, or health insurance or similar benefits for employees” are excluded from the regular rate. See 29 C.F.R. § 778.214 In order to qualify for this trust or benefits exemption, the employer must meet the five-part test outlined at 29 C.F.R. § 778.215.

It is unclear whether the DOL or a court would agree that a commuter benefit plan falls within this definition as “a similar [employee] benefit.” Some may argue that this provision should be limited to health and retirement plans. Commuter benefit plans are beneficial for employees, employers, and the environment. As it is in the public interest for employers to provide these subsidies, it is likely that if asked to opine on the issue, the Wage Hour Administrator would find that commuter subsidies are excluded from regular rate if they are provided through a qualified plan or third party. In the absence of such guidance from the DOL, employers should be cautious about structuring these benefits in consideration of their wage and hour obligations.

This blog entry was authored by Salvador Simao.