Showing posts with label Department of Labor. Show all posts
Showing posts with label Department of Labor. Show all posts

Wednesday, July 10, 2013

Tipped Employees and the Minimum Wage

Earlier this evening I came across a 'picture' discussing servers and the minimum wage with a goal of making patrons feel guilty if they are bad tippers--if they tip at all--but the picture was rather misleading.  A very commonly-misunderstood area of wage & hour law is tipped employees (i.e., those who customarily and regularly receive more than $30 per month in tips) and how they are paid since they are not paid like regular, hourly employees.  The Department of Labor (DOL) has an excellent break down of tipped employees and the minimum wage available here.

It is fairly well-known that tipped employees--e.g., servers and bartenders, are only paid $2.13 per hour with the rest of their income typically made up of tips from customers.  A huge misconception is that employers only have to pay $2.13 per hour and if the tipped employee receives no tips, that's all they earn.  FALSE!  The Fair Labor Standards Act (FLSA) requires tipped employees to be paid at least the minimum wage ($7.25), made up by the employer.  That is, if a waiter/waitress or bartender receive no tips in a given shift, it is the duty of the employer, under the law, to make up the difference so that employee receives at least the minimum wage.

Other helpful information regarding tips to know include:

Retention of Tips: A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. For example, even where a tipped employee receives at least $7.25 per hour in wages directly from the employer, the employee may not be required to turn over his or her tips to the employer.
Tip Pooling: As noted above, the requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips. The FLSA does not impose a maximum contribution amount or percentage on valid mandatory tip pools. The employer, however, must notify tipped employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each tipped employee ultimately receives, and may not retain any of the employees' tips for any other purpose.
Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA. However, this charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.
The DOL's website also has a list of "typical problems" associated with tipped employees that are the basis of a lot of lawsuits:
  • Where an employee does not receive sufficient tips to make up the difference between the direct (or cash) wage payment (which must be at least $2.13 per hour) and the minimum wage, the employer must make up the difference.
  • Where an employee receives tips only and is paid no cash wage, the full minimum wage is owed.
  • Where deductions for walk-outs, breakage, or cash register shortages reduce the employee’s wages below the minimum wage, such deductions are illegal. Where a tipped employee is paid $2.13 per hour in direct (or cash) wages and the employer claims the maximum tip credit of $5.12 per hour, no such deductions can be made without reducing the employee below the minimum wage (even where the employee receives more than $5.12 per hour in tips).
  • Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed all tips he or she contributed to the pool and the full $7.25 minimum wage.
Overtime Problems:
  • Where the employer takes the tip credit, overtime is calculated on the full minimum wage, not the lower direct (or cash) wage payment. The employer may not take a larger tip credit for an overtime hour than for a straight time hour (i.e., $4.00 tip credit per hour for the nonovertime hours and $5.12 tip credit per hour for overtime hours).
  • Where overtime is not paid based on the regular rate including all service charges, commissions, bonuses, and other remuneration.

Tuesday, February 12, 2013

Department of Labor Expands FMLA to Cover Families Of Eligible Veterans And Military Families

The Family and Medical Leave Act (FMLA) turned twenty-years-old this year and on its big birthday, the Department of Labor (DOL) issued a Final Rule expanding FMLA protections in a few ways.  One of the expansions provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members. The expansion also enables more military families to take leave for activities that arise when a service member is deployed. The expansions will go into effect March 8, 2013.

The 2013 Final Rule highlights include:
  • Expansion of the definition of a covered service member: Includes veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.
  • Definition of a covered veteran: The Final Rule defines a covered veteran as a veteran who has been discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes military caregiver leave to care for the veteran.
  • Inclusion of Pre-Existing Injuries: Expands the military caregiver leave provision to provide leave to eligible family members if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy.
  • Expansion of qualifying exigency leave for employees with family members in the Regular Armed Forces: The Final Rule expands the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serve in the Regular Armed Forces, and incorporates the statutory requirement that the military member, whether in the Regular Armed Forces or the Reserve components, must be deployed to a foreign country.
  • Certain changes to the categories of qualifying exigency leave, including:
    • Increasing the amount of time an eligible employee may take qualifying exigency leave related to the military member's Rest and Recuperation to a maximum of 15 calendar days. This leave may only be used while the military member is on Rest and Recuperation leave.
    • Creating a new qualifying exigency category that allows an eligible employee to take FMLA leave for certain activities related to the care of the military member's parent who is incapable of self-care where those activities arise from the military member's deployment or impending deployment, such as arranging for alternate care for the parent; providing care for the parent on an urgent, immediate need basis; admitting or transferring the parent to a care facility; and attending certain meetings with staff at a care facility.
  • Expansion of health care providers authorized to certify a current service member's or veteran's serious injury or illness: The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military.
  • If a medical certification is obtained from a non-military affiliated health care provider, the employer may request a second (or third) opinion from the employee. The Final Rule retains the provisions that healthcare certifications obtained from healthcare providers associated with the military may not be subject to second and third opinions.

Monday, September 24, 2012

7 Paycheck No-No's the Department of Labor is Focusing On

Here is a quick, easy-to-understand list of the top 7 law violations the Department of Labor targets as they prove to be the biggest laws employers break.  Employers are always encouraged to evaluate how they classify and pay employees to avoid expensive lawsuits and litigations and employees are encouraged to speak with wage & hour attorneys if they suspect they are not being paid properly.

1. Failure to insure that subcontractors follow the law

General contractors are responsible not only for their own violations of federal labor law, but also for those committed by their subcontractors.

2. Employees working more than 60 hours per week without proper payment

The most egregious problem with workers who work over 40 hours a week is failure to pay at all for all hours worked. It’s not unusual to find workers who are paid for 40 or 50 hours but essentially forced to work 60 hours.

3. Failure to pay required prevailing wages and overtime compensation

Prevailing wage is generally interpreted as the union wage for the area. Of course, any overtime earned must be paid at the prevailing wage rate.

4. Providing inaccurate or falsified payroll records to the government

Obviously, providing falsified records is not a wise practice. However, many submitted records are merely inaccurate. In fact, most experts admit that probably no organization has perfect pay records. But there are common problems that you can watch out for:
  • Clock in and clock out procedures, including especially rounding rules that favor the company and not the employee.
  • Automatic deductions for meal periods. Problems tend to occur when an employee works through part or all of the meal period, but the time tracking system deducts the time. For example, if employees are taking phone calls during lunch, they are probably working.
  • Changes made by supervisors and not checked by employees.
5. Failing to keep accurate records of hours employees worked

Records must be detailed. For example, “8 hours” today is not enough. Note time in, time out for lunch, time in from lunch, and time out at the end of the day. Have employees sign that their time card or other record is “an accurate and full accounting of hours worked for the period.”

6. Failing to pay for all hours employees worked

As was mentioned in yesterday’s Advisor, this failure usually arises from people taking work home or being requested to work before clocking in or after clocking out.
One important point: If employees do work extra hours, you have to pay them, even if you have specified that they can’t work extra hours without permission. (You can discipline them for doing the work, but you still have to pay them for it.)
One new twist here is the rise of cell phone/e-mail use outside of work hours. If non-exempt employees are answering phone calls or dealing with e-mail off hours for more than a de minimus time frame, they are probably working and need to be paid for those hours.
7. Improperly classifying employees who performed work on the projects, resulting in the underpayment of wages and fringe benefits.

Misclassifying (calling employees exempt who should be classified as non-exempt) is a sticky problem. There is a lot of grey area in the supervisory ranks. The general rule is that it’s better to sort out these difficulties before work begins. After the fact, there are lawsuits, class actions, and other expensive challenges to be dealt with.

Tuesday, April 10, 2012

Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act

Not too long ago a big stir was made surrounding volunteers and whether they are entitled to pay under the Fair Labor Standards Act (FLSA).  It was a fairly controversial issue because for years and years the term "volunteer" came with the assumption that the work was not compensated and volunteers were doing just that: volunteering their time.  However, when volunteers are taken advantage of, that is when the litigation begins and we have since been provided with guidance on when pay is called for under the FLSA in certain volunteering situations. 

Some "volunteer" activities can be employment under the FLSA thus warranting compensation and wages.  This is true even if a volunteer isn't employed by the entity they are volunteering for, if the volunteering is labeled "charitable" or for "public service," and even if the volunteering is for a non-profit organization.  "Interns" are not paid wages under the FLSA but certain types of "volunteers" may be under the FLSA.

The FLSA itself excludes individuals who volunteer to perform services under certain circumstances for a state, a political subdivision of a state, or an interstate governmental agency. These exceptions explain why, in the proper situations, volunteers at public schools and in some other settings are not viewed as being engaged in FLSA employment.
The Department of Labor (DOL), the governmental agency that enforces the FLSA, has issued guidance on the issue of volunteering and compensation and has held that individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.  However, the DOL has held that employees may not volunteer services to for-profit private sector employers.
The DOL’s position also holds that individuals may not “volunteer” to do things for their employer which are the same as or are similar or related to their normal work duties.   This is considered compensable FLSA work time. The DOL might also take the same view regarding time an employee spends even in arguably dissimilar services of a public or charitable nature, if this occurs at the employer’s request, under its direction or control, or during the employee’s normal working hours.  That is, if it works like a duck and quacks like an employee, it gets paid under the FLSA!

Tuesday, March 20, 2012

Wage & Hour Litigation Exploding

New figures and statistics are out on wage & hour claims filed and it was revealed that claims under the Fair Labor Standards Act (FLSA) have increased more than 15% from 2010 to 2011 and increased more than 325% over the last 10 years.  From the article on the trend, "[i]n the reporting year ending March 31, 2011, there were 7,006 wage and hour claims filed in federal courts across the United States. [Richard Alfred, Boston-based head of the national wage and hour practice of Seyfarth Shaw] says that number is higher than the total filings of all other types of employment cases combined. Aside from a 2008 dip from 6,786 to 5,302 cases, the number of lawsuits filed has been on a steady upward trajectory."
The remainder of the article discusses how Alfred, an employer-side attorney, believes the FLSA needs revising as it is antiquated and does not take into account the modern workplace centered on technology.  The Supreme Court hasn’t heard a wage and hour case since 2004. This spring, SCOTUS will weigh in on white-collar exemptions for the first time in Christopher v. SmithKline Beacham Corp. Arguments in that case will be heard April 16.

Monday, October 31, 2011

Compensable Time Expanding: Starting Up the Computer and Checking E-Mails May be Compensable!

Recently the Department of Labor (DOL) announced a major settlement with Hilton Reservations Worldwide, LLC in the amount of $715,507 for minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania.  In arriving at this settlement, the DOL's audit revealed that Hilton Reservations failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails.

The DOL has been focusing on call centers heavily lately but the issue of pre- and post-shift activities is not unique to call centers.  Having a slow, old computer may pay off after all!

Sunday, September 11, 2011

Trouble Wage & Hour Statistics from the Dept. of Labor

The Department of Labor ("DOL") has been busy recently revamping its website and recently offered a phone application to help hourly employees keep track of their time in an effort to ensure employers are complying with wage & hour laws.  Now the DOL has released recent statistics of 68,644 enforcement actions that revealed violations in 50,364 cases, and no violation in just 18,280. In other words, the DOL found violations in roughly 73% of all of its compliance actions. These findings resulted in findings of back wages due totaling $681,151,513, or about $13,524.57 per case in which a violation was found.  This is pretty disturbing data but hopefully with proper education and enforcement the stats will look better next time around.

Monday, June 13, 2011

Electronic Paycard Protection Act Introduced in House

Earlier this month Rep. Joe Baca (D-CA) introduced the Electronic Paycard Protection Act (H.R. 2125) which would mandate certain disclosures to and options for employees who receive their pay electronically through payroll cards. The bill, if passed, would add a section to the Fair Labor Standards Act (FLSA) that outlines the new conditions imposed on employers that use electronic payroll cards. The bill would also seek to:

  • Allow employees to access the full amount of their wages at least once per pay period;
  • Provide employees with a mechanism to check their balance free of charge;
  • Provide employees with a written explanation of all the terms and conditions associated with the use of an electronic payroll card, including any fees associated with such a card. Employers would also be required to make these disclosures in any other manner typically used by the employer to communicate to employees;
  • Give employees the option to receive either a paper paycheck or electronic paycheck deposit instead of a paycard;
  • Disallow an electronic paycard payment of an employee’s final payment or any severance payment to an employee whose employment has been discontinued;
  • Prevent an employer from firing or failing to hire employees or applicants for refusing to use electronic paycards as their primary means of receiving wages; and
  • Ensure that any funds made available by the paycard may not expire.
  • Wednesday, June 8, 2011

    Employment Case Law Update

    --Hart v Family Dental Group, 2ndCir: In affirming a district court’s grant of judgment as a matter of law on the plaintiff's Sec. 4312(A) of the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court of Appeals for the Second Circuit held there was no reasonable basis to find a violation because the plaintiff was reinstated with the same title, pay, and employment terms upon his return from active duty in Iraq. The twist in this case takes place when the plaintiff was informed that he was being terminated 60 days after he returned to work for the defendant. The plaintiff questioned the legality of his termination so the defendant shortened the termination from 60 to 30 days, which prompted suit under USERRA. The Dept. of Labor informed the defendant that it had to employ the plaintiff for at least 180 days upon his return from active service, which it did, and once the 180 days were up it re-terminated the plaintiff. In ruling in favor of the defendant-employer the 2nd Circuit noted that USERRA only requires an employer to re-employ a member of the armed services for 180 days (unless they can terminate for cause) and that is what was done here. Nothing more is required of the employer.

    --Khufu v Jones Retail Corp, DHaw: Defendants' motion for summary judgment DENIED in part, GRANTED in part on plaintiff's race, color, age, hostile work environment, intentional infliction of emotional distress and state law claims. As is common with a lot of employment cases, this case presents an employment history marred with disciplinary actions and questionable employer conduct. This case also highlights the blunder commonly made by plaintiffs when they fail to properly check all the relevant "boxes" in EEOC complaints in order to properly exhaust administrative remedies in order to file suit in federal court.

    In claiming race discrimination under Title VII the plaintiff relied upon the Supreme Court's recent cat's paw decision in Staub v. Proctor Hosp.. While the court acknowledged that the plaintiff was terminated for violating certain policies, the court held it could not ignore the other evidence presented on behalf of the plaintiff pertaining to the alleged discriminatory conduct of his immediate supervisor which also factored into the decision to terminate in denying the employer's motion for summary judgment on the Title VII claim.

    --Magnussen v Casey’s Mktg Co dba Casey’s Gen Store, NDIowa: Employer's motion for summary judgment GRANTED. Plaintiff has a temporary and sporadic back problem that left her unable to stand for long periods of time was held not disabled under the ADA (prior to ADAAA amendment) or state law, nor was she qualified for her position, held the Iowa district court. The court also held that even had the plaintiff been a qualified individual with a disability, it was she and not the employer who was responsible for the breakdown of the interactive process, and therefore, her failure to accommodate claim could not proceed.

    --Winterhalter v Dykhuis Farms, Inc, WDMich: Employer's motion for summary judgment GRANTED on employee's Family and Medical Leave Act (FMLA) claims. The court held that the termination of the plaintiff on the day he returned from FMLA leave occurred during a broader reduction in force (RIF) and was based on objective criteria of poor work performance and a high salary not because of the FMLA leave.

    Tuesday, May 10, 2011

    Department of Labor Offers App to Keep Track of Employees' Hours

    In what may be a great tool to prove potential wage and hour violations, the U.S. Department of Labor has released an application for use on Apple's iPhone that employees can use to ecord the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek. For more on the app and how to download, click here to be taken to Apple's website.

    Tuesday, April 5, 2011

    Department of Labor Issues Final Rule on Fair Labor Standards Act

    The Department of Labor (DOL) recently issued a final rule to revise regulations issued pursuant to the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947 (Portal Act) that have become out of date because of subsequent legislation and can be found here.

    Friday, January 7, 2011

    DOL Secretary Holis Issues Optimistic Statement on U.S. Employment Situation

    Department of Labor Secretary Hilda L. Solis issued a statement in the wake of the new year with a highly optimistic tone on the state of the employment situation in the United States. From the DOL press release:
    "The American economy has come a long way in the last two years. In the month President Obama was inaugurated, the economy lost nearly 800,000 jobs. In 2010, every single month posted private sector job growth, with well over a million jobs added throughout the year. And job growth has occurred in a broad range of industries, led by professional and business services, leisure and hospitality, and health care. Furthermore, business and consumer spending are growing, with manufacturing activity and disposable income for American families on the rise.
    "Protecting the Affordable Care Act is a large part of that commitment. Now is not the time to play politics with the health of Americans and the health of the economy. The law provides all Americans the freedom to make career choices without having to worry about losing their health insurance when changing jobs. Repealing this law would deny millions of Americans that choice. Repeal would also take health insurance away from 30 million Americans, it would allow insurance companies to boost their profits at the expense of our citizens, and it would add at least a trillion dollars to the deficit. In addition, the law includes a tax credit for small businesses to cover up to 35 percent of premium costs of their employees. In 2014, this rate coverage will increase to 50 percent. Repealing the law will make it more expensive for small businesses burdened by rising health care costs to cover their employees.

    "A new year and a new Congress usher in a shared responsibility to work together to create economic prosperity for all Americans. The fact is that almost one in 10 people in the labor force are still without a job. And that is where the Labor Department — and this administration — remain focused because the American people are looking to their government for commonsense leadership during these difficult times. While the employment situation is clearly improving, my mission remains the same: to create good and safe jobs for everyone. It is what the American people are counting on and a goal we will continue to keep at the forefront of everything we do."

    Thursday, November 18, 2010

    Department of Labor Study Shows Unemployment Insurance Has Positive Impact on Country

    The Department of Labor ("DOL") released a study today that revealed some positive findings regarding unemployment insurance and the impact it has on the country. Some of the key findings were:
    --For every dollar spent on UI, economic activity increases by two dollars.
    --During each quarter of the recent recession, UI benefits kept an average of 1.6 million Americans on the job.
    --At the height of the recession, UI benefits averted 1.8 million job losses and kept the unemployment rate approximately 1.2 percentage points lower.
    --UI benefits reduced the fall in GDP by 18 percent. Nominal GDP was $175 billion higher in 2009 than it would have been without UI benefits. In total, unemployment insurance kept GDP $315 billion higher from the start of the recession through the second quarter of 2010.
    For more, here is the press release on the study.

    Enochs Law Firm

    Monday, October 11, 2010

    Supreme Court Denies Cert in Donning and Doffing Case

    The Supreme Court of the United States denied cert in a case out of the Court of Appeals for the Fourth Circuit involving time spent donning and doffing protective gear at a unionized poultry processing plant. The Fourth Circuit, in Sepulveda v. Allen Family Foods, Inc., held that the protective gear constituted “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and, thus, was not compensable time for which the employees must be paid.

    Donning and doffing is increasingly becoming a split issue among the circuit with the Sixth Circuit recently ruling that it was going to disregard the DOL's opinion letters on the topic, that ear plugs could be considered "clothes" and that the burden is on the plaintiff to establish entitlement to wages under the FLSA.

    Stay tuned!

    Sunday, October 3, 2010

    Working Families Flexibility Act

    Former Senator Ted Kennedy was partially well-known for his highly progressive and innovative labor & employment law legislation. A former bill proposal of his has been re-born in the Senate via Bob Casey (D-Pa.) and Tom Harkin (D-Iowa), S. 3840: Working Families Flexibility Act. Similar legislation was introduced in the House but has gone nowhere.

    The bill proposal is pretty interesting in that it authorizes an employee to request from an employer a change in the terms or conditions of the employee's employment if the request relates to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work; or (3) where the employee is required to work. The legislation does not require the employer to grant such requests but merely sets forth a duty for the employer to hear the request(s) and makes it unlawful for interference of rights under the legislation.

    Hat tip: The Delaware Employment Blog

    Wednesday, September 1, 2010

    6th Circuit Declines to Follow DOL's Opinion Letter Regarding 203(o), Delivers Death Nail to Employees

    A recent opinion out of the Court of Appeals for the Sixth Circuit concerns donning and doffing and compensable time under the Fair Labor Standards Act and starts like out most donning and doffing cases (i.e., employees required to wear certain protective garments, argue they should be compensated for such time spent), but the opinion itself takes a unique twist regarding the Department of Labor's opinion letters and who bears the burden of proof in showing that donning and doffing is excluded under § 203(o).

    The 6th Circuit ultimately concludes that § 203 is not an exemption and therefore not an affirmative defense, which places the burden on the plaintiff to establish entitlement to wages under the FLSA,including to prove that there is no custom or practice under a bona fide CBA related to “changing clothes.”

    The 6th Circuit decided, in part because the DOL's opinion letters regarding "clothes" under § 203 keeps changing and evolving and because of the Supreme Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944), that the DOL's most recent opinion letter regarding "clothes" under § 203 will not be followed. Thus, the Court held that "clothes" refers to any “covering for the human body or garments in general,” particularly those worn for work. And, enough to make any plaintiff's lawyer fall out of their chair, the Court ruled that there is " reason to distinguish between protective and non-protective clothes." Therefore, ear plugs are clothes!

    In making their ruling, the 6th Circuit notes that their decision is in concurrence with some circuits and at odds with other, which makes this issue plenty ripe for grant of cert by the Supreme Court!

    The case is Franklin v. Kellogg Company, No. 09-5880.

    Wednesday, August 4, 2010

    DOL Releases Child Labor Rules Advisor

    Can be found here.

    Thursday, July 29, 2010

    Unemployment Compensation Claims Decline for Third Time in Four Weeks, But Remain Elevated

    The Department of Labor released its recent jobless claims data which revealed new jobless claims fell last week for the third time in four weeks but remain elevated, which is a sign that the economy likely added jobs in July, although not enough to lower the nation's high unemployment rate. From the AP article on the data release:

    First-time claims for unemployment insurance dropped by 11,000 to a seasonally adjusted 457,000, the Labor Department said Thursday.

    Claims have fluctuated this month because of temporary seasonal factors. General Motors and other manufacturers skipped their traditional summer shutdowns, which led to fewer layoffs and unemployment claims. But the impact of that distortion has largely faded from the data, a Labor Department analyst said.

    The four-week average of claims, which smooths fluctuations, dropped to 452,500, the lowest level since May.

    That suggests layoffs may be easing. And the four-week average is slightly below its level in June, which indicates that private employers likely added about the same number of jobs in July as they did last month. The Labor Department will issue its July employment report next

    Tuesday, July 27, 2010

    DOL Releases Fact Sheet on Break Time for Nursing Mothers Under FLSA

    The fact sheet provides general information on the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (“PPACA”). From the fact sheet:

    General Requirements
    Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

    The FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth).

    Time and Location of Breaks
    Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.

    A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

    Coverage and Compensation
    Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

    Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

    Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA.

    Thursday, July 8, 2010

    Department of Labor Enters the Blogosphere

    The DOL's new blog, "Work in Progress."