Not so fast. Figuring in overtime, flex time, commute time, home office time, and everything else can make for a complicated formula. A recent 3rd Circuit decision brings up some very interesting questions about how to calculate that hourly mark.

First point: Nationwide claimed that Erdman did not qualify under the FMLA because some of her hours were worked from home. While the trial court granted summary judgment to Nationwide on this point, the 3rd overturned the lower court, saying that a jury should be able to look at Erdman’s record keeping to determine whether or not she clocked the appropriate hours.

Second Point: Erdman had a child with Down Syndrome, and had been used to taking vacation time each August to prepare the child for school. In this case, she decided to take FMLA time instead of vacation time. A Nationwide employee told her that wouldn’t be a problem. However, she was fired before the leave was approved.

Her claim of retaliation was dismissed at the trial level by summary judgment but, again, the appeals court overturned that part of the lower court’s decision, rejecting Nationwide’s argument that Erdman could not claim retaliation for taking FMLA leave because she never actually took the leave.

"We interpret the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave," Judge Thomas Hardiman wrote for the unanimous 3rd Circuit panel.

If your employer is giving you problems about your FMLA rights, please contact us.

Under the Employee Polygraph Protection Act, passed in 1998, formerly administered by the U.S. Department of Labor’s Wage and Hour Division of the Employment Standards Administration until it was abolished in November, now administered directly by the Secretary of Labor, employers engaged in interstate commerce are generally prevented from using lie detector tests either for pre-employment screening or during the course of employment, with certain exemptions.

Under this Act, an employer cannot:

--Require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test.

--Use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.

--Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.

Exempted from this law are federal, state, and local governments, and federal contractors who are engaged in national security work or who are otherwise engaged in national security positions.

Other exemptions include prospective employees of armored car companies and other people who would be handling cash and securities, prospective employees of drug companies who would be handling controlled substances, or an employee who is suspected of damaging company property.

Also, anyone administering such a test has to be licensed to do so by the state, and the employee must be given written notice, among other restrictions.

If you have been asked to take a lie detector test improperly, you have a cause of action under this Act. Contact us if you have any questions about this or any aspect of employment law.

The case, EEOC v. UPS, Inc., No. 08-5348, 2009 U.S. App. LEXIS 25395 (2d Cir. Nov. 19, 2009), overturned a lower court order that denied an EEOC subpoena which had sought national records from a company in which the case had only one Charging Party. That lower case had been relied on by a number of other employers to try to limit the EEOC’s subpoena power under those circumstances.

The complainant was a Muslim who accused UPS of a pattern of failing to accommodate religious beliefs. He was eventually accommodated, but the case went on.

The EEOC subpoena, which the lower court denied, asked for the following information from the company on a national basis:

1. All documents relating to the Appearance Guidelines;

2. Any employment denial since 2004 based on those guidelines;

3. Everyone in the company who requested an religious accommodation; and

4. Everyone terminated from the company because of those guidelines.

The lower court held that the request was too broad for a single case.

The appeals court said that it was not. The Appellate court held specifically that the subpoena was not overbroad, and that the fact that the complainant was eventually accommodated did not go to the merits of the charges, saying that, “arguments as to the merits do not prevent the EEOC from investigating the . . . charges."

The court did not rule on any other potential challenges to subpoenas, but the fact that the EEOC is definitively allowed to investigate an entire company’s set of relevant documents in service to one case can be seen as a victory for workers.

If you have any questions about the potential effects of this or any case on your employment, please contact us.

Georgia Senator Johnny Isakson (R-Georgia), joined by Senators Jeff Bingaman (D-New Mexico), and Herb Kohl (D-Wisconsin), have just introduced legislation that would require defined contribution plan sponsors to inform plan participants of the projected monthly income they could expect at retirement, based on their current account balance.

The report mandated in the bill is modeled after the Social Security Administration’s annual statements. The press release accompanying the bill said that, “[b]y providing similar information for 401(k) plans, the Lifetime Income Disclosure Act would give American workers a more complete snapshot of their projected income in retirement."

The bill allows the Secretary to set up the math, based on several requirements.
The measure is being backed by AARP, the Women's Institute for a Secure Retirement, and the Retirement Security Project.

You can read the entire bill here.

The U.S. Federal Court of Claims recently ruled that a Memphis TSA screener was not entitled to overtime under the FLSA. Jones v. United States, Fed. Cl., No. 08-645, (9/14/09).

On its surface, Jones’s case might look pretty good, if there wasn’t an enabling statute interfering..

The provision in question, codified at 49 U.S.C. Section 44935, states that “[n]otwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ … and fix the compensation, terms and conditions of employment of Federal service … [as] necessary to carry out the screening functions ….”

The TSA argued, and the court agreed, that this clause supersedes any other employment laws, including the FLSA.

The court also rejected the Plaintiff’s argument that Congress didn’t actually intend to give the enabling statute a preemptive effect over federal employment statutes. “Lawmakers on both the House and Senate side recognized that the legislation's broad ‘notwithstanding' clause would have exempted screeners from basic legal protections, including the FLSA.”

If you have any questions regarding this law, and federal employment laws, or Georgia employment law, please contact us.

In fact, you cannot be fired from a job because someone has garnished your wages, although multiple garnishments may be a different story. You are protected by Title Three of the Consumer Credit Protection Act (CCPA).

Other types of legal or equitable procedures where your wages may be garnished include IRS or state tax collection agency levies for unpaid taxes, and federal agency administrative garnishments for non-tax debts owed to the federal government.

Wage garnishments under this law do not include voluntary wage assignments—i.e., situations in which employees voluntarily agree that their employers may turn over some specified amount of their earnings to a creditor or creditors.

This law applies to every single person in this country, regardless of employer. The CCPA prohibits an employer from firing an employee whose earnings are subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect that debt, because of the single garnishment. The Act does not prohibit discharge because an employee's earnings are separately garnished for two or more debts.

How much can a creditor garnish under this law? For the most part, the garnishment can’t exceed 25% of the amount of wages left over after all of the other legal deductions, like taxes and Social Security, are taken out, but there are other formulas for some circumstances.

Garnishments for child support are figured differently, allowing up to 60% of a person’s wages to be taken for that purpose. Other debts, including student loans, have other percentage restrictions.

If your wages have been garnished, and you feel that your job security has been threatened by your employer, contact an experienced employment attorney.

There are very strict federal rules about teenagers driving on the job.

ALL of the following conditions must be met in order for a seventeen- year- old to drive on the job, per the DOL:

1. The driving is limited to daylight hours;

2. The 17 year-old holds a state license valid for the type of driving involved in the job performed;

3. The 17 year-old has successfully completed a State approved driver education course and has no record of any moving violation at the time of hire;

4. The automobile or truck is equipped with a seat belt for the driver and any passengers and the employer has instructed the youth that the seat belts must be used when driving the vehicle;

5. The automobile or truck does not exceed 6,000 pounds gross vehicle weight; AND

6. Such driving is only occasional and incidental to the 17 year-old’s employment. This means that the youth may spend no more than 1/3 of the work time in any workday and no more than 20% of the work time in any workweek driving.

Prohibited Activities:

--Towing vehicles;

--Route deliveries or route sales;

--Transportation for hire of property, goods, or passengers;

--Urgent, time-sensitive deliveries (such as pizza deliveries);

--Transporting more than 3 passengers including employees of the employer;

--Driving beyond a 30 mile radius of the teen’s place of employment;

--More than 2 trips away from the primary place of employment in any single day to deliver the employer’s goods to a customer;

--More than 2 trips away from the primary place of employment in any single day to transport passengers other than employees of the employer.

If you think that you, your child, or someone you know is being asked to work in violation of these or any other safety rules, you should contact an employment lawyer.

The question involved what happens in “mixed motive” cases, where there may have been some “legitimate” (i.e., non-discriminatory) factor, in addition to age, that played a part in the employer’s action. In Gross, for example, the plaintiff was demoted as part of a restructuring, but there was evidence age bias played a part in the decision.

The Gross decision announced a different rule for federal age discrimination claims. A majority of the court held that the employee’s burden of proof includes showing what is known as “but-for” causation; in other words, that were it not for improper discrimination, the challenged employment decision would not have occurred. Under Gross, the burden of proof never shifts to the employer. To reach this result, the majority ignored decades of decisions holding that the ADEA should be construed similarly to Title VII, the principal federal law prohibiting discrimination based on race, sex, religion, color, and national origin.

Justice Thomas wrote the decision for the majority, composed of himself and Justices Roberts, C. J., and Scalia, Kennedy, and Alito, JJ. Separate dissents were written by Justices Stevens and Breyer; both of those dissents were joined by Justices Ginsburg and Souter.

Assuming it is properly interpreted by the lower courts, the Gross decision should impact principally the wording of jury instructions at trial, and should not affect the ability of employees to get their cases in front of juries. If you feel that you have been the victim of age discrimination in the workplace, you should contact an employment attorney.

ABC News is tracking this issue, and reports a great increase in age discrimination filings with the EEOC. It may be that companies are using the economy as an excuse to get rid of workers that they couldn’t fire under more normal economic circumstances.

ABC reports that “the commission received an unprecedented 95,402 complaints during a 12-month period ending in October. That's up 15 percent from the prior year. Of those, 24,582 are charges of age discrimination, a massive 29 percent increase.”

Age discrimination charges and lawsuits come under the federal Age Discrimination in Employment Act of 1967 (ADEA), which covers people over the age of 40, who work for companies that employ 20 or more people.

The filings come from a diverse collective of employers, including the Lawrence Livermore mega- lab in Berkley, California and a Whole Foods store in Florida.

Employees are winning these cases. The last couple of weeks have seen enormous age discrimination jury awards and settlements. A jury in Massachusetts has awarded an elderly donut shop employee $100,000, and an Alaska medical center just paid $200,000 to settle a case.

But don’t expect companies to just start writing checks to people over 40 who get laid off. Most companies are prepared to fight these cases. In tight economic times, companies may also be more reticent to settle cases unless the complaining party hires an attorney.

The Uniformed Services Employment and Reemployment Act (called USERRA and passed in 1994) gives veterans certain job rights that are not enjoyed by non- veterans. Among those are protections for disabled veterans, federal employees, vets seeking to go back to their old jobs, and rights into the continuation of military health care.

A few details:

USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

The law has an “escalator” provision that requires placement into the job that the veteran would have had or been promoted to except for military service, and also requires that the vet be trained into that job. If that isn’t possible, then the law requires that every effort be made to place the vet into a similar job.

Veterans on duty are to be treated as if they are on a leave of absence for company benefit purposes. This includes benefits that are tied to seniority and to non- seniority benefits.

Veterans also have COBRA- like rights in their health coverage for individually and for their families, up to 24 months. However, the vet would pay more than 100% of the premium cost.

Like most employment law, this is a highly complex area, since it exists on the interface between federal law and local employment. For a complete explanation of your rights under the USERRA, contact an employment lawyer.

The two laws always need to be read together, as well as in conjunction with state laws, by a qualified employment lawyer, to determine the rights of any agricultural workers.

Even though agricultural workers are covered under the FLSA, the MSPA, which was passed in 1983, is considered to be the primary federal labor law covering migrant workers. Like the FLSA, this law is administered by the Wage and Hour division of the U.S. Department of Labor.

The law mandates that these workers have to be given information about wages, hours, workers' compensation, working conditions, and housing at the time the worker is being recruited. Payroll records have to be kept by both the contractor and farmer, and a written earnings statement must be given to each employee.

The teeth of the MSPA is a private right of action in federal court for any aggrieved worker, allowing recovery regardless of the amount in controversy, citizenship of the parties, or whether or not the parties have exhausted their administrative remedies.

This right of action is taken against the labor contractors, and does not necessarily affect the employer farms themselves. However, under the right circumstances, the law will create a “joint employment” situation which will allow a worker to file suit against the farmer, as well as the contractor.

The MSPA requires labor contractors to register with the DOL prior to contracting any farm labor. The contractor also has to provide the DOL with proof of vehicle safety and insurance, if they are transported, and with decent housing, if housing is provided.

If you know of any migrant workers who are employed by any contractor who is not following these rules, do them a favor and contact an employment law attorney.

Under the FMLA, which passed into law in 1993, employers must grant a leave (unpaid) of up to twelve weeks every twelve months for certain family emergencies and other medical conditions.

The Bush administration had imposed some restrictions on the FMLA which Rep. Carol Shea-Porter (D-N.H.) has proposed to eliminate in H.R. 2161, which she has called the Family and Medical Leave Restoration Act. The restrictions were posted in a November 2008 DOL final regulation.

--Not allowing an employer to force an employee to use more FMLA leave time than necessary;

--Restoring the right to accrued paid leave and attendance bonuses while on FMLA leave;

-- Restore the prohibition on an employee waiving FMLA rights without review by the DOL or a court;

-- No longer forcing an employee to conform to employee leave policies prior to obtain an FMLA leave;

-- Revisiting some new timelines and definitions, including the medical certification template used to decide what a “serious health condition” is.

The second proposed bill, introduced this year (and every year since 1999) by Rep. Carolyn Maloney (D-N.Y.), would allow FMLA leave to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent if that person has a serious health condition.

The bills are now in committee. More on them as they move through the system.

At least, under most circumstances

Welcome to the Genetic Information Non-Discrimination Act of 2008, known as GINA. Short version: no genetic information obtained by any company can be used to discriminate against any person in employment or in providing health insurance.

GINA may very well be a solution in search of a problem, but, of course, one never knows. There is only one recorded instance of any American company using genetic information to discriminate in employment, in 2001, and the EEOC stopped it.

The idea of taking your blood to see if you are fit for a job may seem somewhat creepy. And GINA makes most instances of that action illegal and actionable. Nevertheless, blood can be tested for any number of genetic weaknesses. And there may be some legitimate, work- related reasons to do so.

Genetic testing is allowed under GINA in some seemingly very gray areas. Some exceptions in GINA that allow testing of this sort include “inadvertence” by the employer; indirectly obtaining it as a part of a wellness program; as a part of FMLA certification; and where the employer’s blood is being monitored for workplace hazardous substances.

Even under those circumstances, all of the information is to be kept confidential.
The health insurance part of GINA begins in May 09. The employment discrimination part starts in November. GINA does not affect life insurance.

If your employer is asking for blood samples, you may have a cause of action. Any questions on GINA’s applicability to your employment status should be brought to an employment attorney.

First things first, though—if you’re over 16, these special rules don’t apply to you. Also, they don’t apply if the farm is owned by the children’s parents. Other exemptions include students enrolled in certain vocational agricultural programs or who are specially trained through 4-H (etc.) on some hazardous farm equipment.

Believe it or not, you are allowed to work on a farm at an age as low as 10....

Children age 12 and 13 years of age may work outside of school hours in non-hazardous jobs on farms that also employ their parent(s) or with written parental consent. Youths under 12 years of age may work outside of school hours in non-hazardous jobs with parental consent, but only on farms where none of the employees are subject to the minimum wage requirements of the FLSA.

Youths aged 14 and 15 may work outside school hours in jobs not declared hazardous by the Secretary of Labor.

The regs list a ton of “hazardous” farm jobs, and the problem is that, on a farm, a worker may get shifted from job to job without really knowing what is allowable under each circumstance. Some of the more hazardous jobs include operating large tractors and harvesting equipment, earthmoving and trenching, handling cattle, working in a silo, and handling dangerous chemicals.

Another problem will be comparing state laws to the federal regulations, since the more stringent of the two will always apply. Only an experienced employment lawyer can guide you through that particular jungle of governmental regulations.