The past few months have seen several important court cases and a landmark new law passed. This month, let’s take a look at a these and evaluate their possible impact on your workforce management.
Starting with the court cases:
Dukes v. Wal-Mart
Betty Dukes claimed after six years of excellent performance evaluations at Wal-Mart she was denied the training she needed for a better-paying position because of gender discrimination. Wal-Mart countered that she wasn’t sent to training because of clashes with her supervisor and because, as she herself admitted, she had a problem getting back on time from lunch breaks.
It might have been just another “she said, they said” employment law case. But then Ms. Dukes’ lawyers sought to certify a huge class of 1.6 million female Wal-Mart employees, claiming pervasive, corporate-sanctioned gender discrimination. If they’d been successful, it would have been the largest class-action suit ever attempted. Just litigating it could have cost Wal-Mart a fortune, and if they’d lost the case their liability could have been in the billions.
Not surprisingly, Wal-Mart fought the class certification all the way to the U.S. Supreme Court.
In June, the Supreme Court unanimously ruled the plaintiff “class” didn’t have enough in common to proceed with the proposed suit. Further, they ruled 5 to 4 that the case couldn’t proceed as any kind of a class action at all.
This case had received a ton of attention thanks to the explosive rise in class-action wage and hour lawsuits in recent years. In the initial euphoria following the decision, many employers’ lawyers hailed the decision as “the death of the employment law class action,” but that’s clearly overstated. The problem here appears to have been simply that in this particular case the class was too big and too diverse. There have been several other class-action cases certified since then, all for much smaller and more homogenous classes.
Bottom line: you’re not out of the woods where potential class-action liability is concerned.
Tenth Circuit Weighs in on Donning and Doffing
As we noted in a recent post on our Time For Business blog concerning where the courts stand on the subject of “donning and doffing,” the courts are divided on the subject. The question is: are employers required to pay for time employees spend putting on or taking off protective gear and the like?
As I noted in that blog post, the Second, Third, Fourth and Eleventh Circuit US Courts of Appeals have answered that question in somewhat different ways.
Now the US Court of Appeals for the Tenth Circuit (the Rocky Mountain region) has affirmed a lower court ruling that turkey processing workers are not entitled to compensation for the time they spend “donning and doffing” personal protective equipment because according to the court these activities are not “changing clothes” under either the Fair Labor Standards Act (FLSA) or Colorado law.
A ruling from the U.S. Supreme Court would clear up much of the confusion. Unfortunately, up until now, the Supreme Court has declined to hear cases related to donning and doffing.
Bottom line: If you think you might have a “donning and doffing” issue, be sure to check with your employment law attorney to make sure you’re in compliance with the rules as laid down by the Circuit Court that has jurisdiction in your state.
California Overtime for Non-Residents
Also in June, in the case of Sullivan v. Oracle Corporation, the California Supreme Court decided California overtime rules apply to out-of-state employees who work full days or weeks in California for California-based employers.
The Court also ruled any such overtime claims could serve as the basis for claims under California’s Unfair Competition Law (UCL — otherwise known as Business and Professions Code section 17200). This means the statute of limitations on such claims extends back four years. For comparison, FLSA claims normally go back two years, or three years if the employer’s conduct was found to be “willful.”
However, the Court also concluded that overtime incurred in other states cannot be the basis for claims under California’s UCL simply because the decision to classify an employee as exempt was made in California.
This decision left a number of questions unanswered. For instance: what happens when an employee who works part of the time in California is properly classified as exempt in their “home” state, but is not exempt under California law? What other California Labor Code provisions, if any, will apply to non-resident employees who work in California?
Bottom line: if you’re a California-based employer with out-of-state employees, consult with your employment law attorney about the implications of this new ruling.
Connecticut “Sick Leave” Law
Finally, on July 1, 2011, Connecticut became the first state to mandate sick pay for employees when Governor Malloy signed into law “An Act Mandating Employers Provide Paid Sick Leave to Employees.” Broadly speaking, beginning January 1, 2012, employers with 50 or more employees in Connecticut must provide paid sick leave to their service employees.
The Act requires employers to provide covered employees with a minimum of one hour of paid sick leave for every 40 hours the employee works, up to a maximum of 40 hours of paid sick leave per calendar year. Employees are entitled to carry over up to 40 hours of unused sick leave from one year to the next.
There are exceptions to who is covered, and restrictions on how the accrued sick leave can be used. There’s no need to change your existing policies if they already meet the law’s requirements. However, it is important to verify you’re in compliance, as the law provides for significant penalties for violations.
Bottom line: if you’re a Connecticut employer, check with your employment law attorney to make sure your policies conform to this new law.
How Acroprint Can Help
One way to reduce your risk is to make sure you accurately record all hours for all employees, hourly and salaried, even if you don’t think they’re eligible for overtime. Record work time for independent contractors, as well.
If it turns out those contractors should have been classified as employees, or if employee time you treated as non-compensable actually should have been paid, you’ll be thanking your lucky stars you have accurate data to use for calculating time worked. Otherwise, as we noted in a blog post, the courts may well use your employees’ recollections of how much time they worked. Having your own accurate records could save you a lot of money.
To make it easy for you to accurtely and reliably track employee time, Acroprint offers traditional punch clocks, software-based time and attendance systems, and AcroTime, an online time clock that also offers optional accrual tracking for time off, such as sick leave, vacation and personal days. With the industry’s most comprehensive selection of time tracking products, we’re sure to have a solution that works for your business or organization.