HR on the Front LineHR Answers for Managers

©J. Edward Enoch, P.C. 2011

September 21, 2011

Unemployment Claim—What can you do to help the government get it right

Leave Requests—State Law Requirements

Overtime—How to Stay Away from the FLSA

HR Issues

You don’t have to come to work and I don’t have to keep you at work

Applies in both Georgia and South Carolina

Aggressively protected by the Courts

Can be modified by contract Terminate for any reason so long as

it does not violate Federal law

At the StartEmployment at Will

Provides reduced income on termination of employment

Not eligible if quit or get terminated for cause (in theory)

Adjudicated through administrative agency

Unemployment

Both Georgia and South Carolina require that the employee be separated from employment “through no fault of his own” in order to be eligible for unemployment compensation.

Unemployment

Employers have to help the government agency make the right decision.

Georgia employers must give the terminating employee a separation notice, DOL-800

Both GA and SC require the employer to timely respond to claims with requests for separation information

Unemployment

GA manual for employers notes– Documents should state specifically

the rule the employee violated and any prior warnings received

– Burden of proof is on employer on a discharge or suspension

– Inability to do the job does not disqualify a person for unemployment.

Unemployment

Bob Buzybody shows up to work on Friday and informs you he has jury duty beginning Monday of the next week. Just so happens it is the end of the quarter and all Bob’s payroll tax filings are due to be completed next week. You tell him you understand his obligation to perform his civic duty but he better get himself excused from that duty and back to the office next week or there is going to be heck to pay.

Problem?

Leave Requests forJury Duty

Yes—Under Georgia and South Carolina law an employer cannot threaten to take or communicate an intention of taking any action to discharge, discipline or otherwise penalize an employee because the employee misses work in response to a subpoena, summons for jury duty or other court order or process which requires the employee’s attendance.

Note that there is no requirement to pay an employee for time spent on jury duty or otherwise responding to a court order. However, most employers do.

Jury Duty

Larry Lefty and Ronnie Regan are having a heated discussion at the coffee pot. Larry insists employers must give their employees time off to vote in any federal, state or local election. Ronnie says Larry is wrong because people can vote on their own time.

Who’s right?

Voting

Both are part right and part wrong.

In Georgia, employers must give employees time off to vote in these elections, but only if the employee does not have at least two hours before work or two hours after work to vote while the polls are still open. South Carolina has no law requiring time off for voting.

Voting

Enforced by Federal Dept. of Labor Establishes minimum wage Defines Exempt vs. Non-exempt

employees Provides overtime pay to non-

exempt employees for all hours over 40 worked in one workweek

“Compensatory” time- no such thing in the private sector

Fair Labor Standards Act (FLSA)

You are aware that Bill is at his desk, coffee in hand and starting work 15 minutes early each day because he is a “morning person” and likes to “get a jump on the day.” Your employee handbook, which Bill read and signed at the time his employment began, clearly states “Non-exempt employees shall not commence work prior to 8:00 a.m. each morning and shall cease work promptly at 5:00 p.m. each afternoon. Employees will not be compensated for time worked outside the stated hours without written permission from their direct supervisor.” Do you have to pay Bill for this extra time?

Starting Early/Staying Late

YES--Work that is not requested by the employer but which the employer allows is work time. This rule applies so long as the employer knows or has reason to believe the employee is working. It is management’s responsibility to control work performed for the employer’s benefit. Management cannot knowingly allow work to be performed, accepting the benefits of such work, without compensating the employee. Simply putting the rule in an employee handbook or circulating a memo promulgating a rule is not enough, the rule must actually be enforced by management.

Starting Early/Staying Late

You finally convince Bill to stop coming in early every day. However, you notice that Bill has been leaving each day with several manila folders worth of paperwork from his desk and bringing them back the next day. A colleague of Bill’s tells you that because he works a little slower than the other people in his department, Bill has decided to pack up some of his paperwork to work on at home. Do you have to pay Bill for the time he “voluntarily” works at home? Does it matter whether he is doing remedial work on things he messed up during the normal workday?

Unauthorized Work

YES AGAIN! You must compensate Bill for the time worked, even if the work is performed away from your place of business if you know or have reason to know that the work is being performed. The fact that Bill is redoing work he has already done wrong once does not make any difference.

Unauthorized Work

Prior to coming to your department, Bill was a manager in another business unit. In your department he is a non-exempt associate and reports to you. He is having trouble getting all his work done in the regular work day. He has not come to you to ask for fewer new matters, even though you have stressed to everyone the need to adjust assignments as necessary to avoid overtime.  For several weeks, his productivity improves dramatically, for which you thank him and he appreciates. 

Unauthorized Work

Then a matter is escalated to you and you see that he responded to the client email at 10:30 PM.  You check his e-time and he put in no overtime/extra time for that day.  When you approach him, he tells you that he has done this on occasion to catch-up and doesn’t mind because his family is in bed by that time.  Should you modify his e-time?

Unauthorized Work

YES AGAIN! For the same reasons as cited above, you must compensate Bill for the time worked, even if the work is performed away from your place of business if you know or have reason to know that the work is being performed.

Unauthorized Work

Kelly is your receptionist. She is responsible for answering the phone, collecting and sorting the mail and greeting anyone who comes into your office. Any time Kelly is not performing one of these three functions, she sits at the receptionist’s desk and either reads a novel or does the New York Times crossword puzzle. One day you timed her and she spent half of her eight- hour day reading the latest best seller she brought from home. Can you dock her pay for the time she spends reading her novel?

Waiting Time

No--Whether waiting time counts as hours worked depends on the facts and circumstances of each case. However, the DOL makes a distinction between “being engaged to wait”, which must be compensated, and “waiting to be engaged,” which does not have to be compensated. If these waiting periods are irregular and of short duration, then the DOL deems that time belongs to the employer and must be compensated. If the employee is relieved of her duties during the waiting period to such an extent that she can effectively use the time for herself, then the time is not compensable.

Waiting Time

Allison works at the Right Foot shoe factory located 45 miles outside of town. She works the second shift from 3:00 in the afternoon until midnight. She is allowed to take two 15 minute breaks during her shift and she has a 30 meal break at 7:00. Because of the short meal break and the job’s distance from town, Right Foot prohibits employees from leaving the company campus during their shift, but Right Foot also provides a cafeteria. Allison is not required to eat in the cafeteria. She can bring her own meal and eat outside or in any of the designated break areas. How many compensable hours per day does Allison work?

Meals and Breaks

7.5--Right Foot has to pay Allison for the two 15 minute breaks, but not for the 30 minute lunch period. Meal periods are not compensable if the employee is relieved of all job duties. This is true even if the employee does not have permission to leave the premises. Periods of 30 minutes or longer are generally sufficient to be considered meal periods. Breaks of less than 30 minutes are generally compensable, although there may be exceptions based upon specific facts.

Meals and Breaks

Olivia is a non-exempt client service representative in your business unit. She is to travel to corporate headquarters for a one-time week of training. The company provides Olivia with travel from the Augusta airport on Tinhorn Airlines. Olivia’s flight will leave Augusta at noon on Sunday, arriving in New Jersey at 6:00 p.m. Training begins on Monday and is conducted during normal business hours for the next week. Olivia’s flight out is at 6:00 p.m. on Friday the 13th, the last day of her training.

Travel

Olivia makes the trip, going to the airport directly from her house. Because of her fear of flying, she takes a sedative an hour before each flight and sleeps through both flights. She arrives home at midnight on Friday night and goes directly home. At the end of the workweek, she indicates on her e-time that she worked eight hours for each day spent training plus six hours on Sunday and an additional six hours on Friday for travel. Does the company have to pay Olivia for 52 hours worked that week?

Travel, cont.

NO--As a matter of policy, the Department of Labor does not consider time spent in travel as a passenger outside the employee’s regular working hours as hours worked. So the company is only required to pay Olivia for the hours in her normal workday, unless she spent more time than that in actual work. However, according to DOL she should be paid for the hours on Sunday that would fall in her normal workday.

Travel, cont.

The Department of Labor has issued a number of regulations relating to travel. Normal travel to and from work, even if the work site varies, is not considered work. However, time spent in travel of a substantial distance from home to perform an emergency job outside of normal work hours and not at the usual work location is considered work.

Travel, cont.

Time spent in travel during the normal course of a day’s work, such as travel from one job site to another, is counted as hours worked.

If Olivia chose to drive to Orlando instead of taking the flight offered by the company, the company can choose to count either the time spend in travel by automobile or the work hours that Olivia would have spent if she had flown. So the employee cannot increase the hours worked by choosing not to use a public conveyance offered by the employer.

Travel, cont.

Click.com, Inc., a local internet service provider, has hired nationally-recognized speaker, Tom Feelgood, to hold a weekend retreat for Click’s front office and sales personnel. Click thinks Feelgood can inspire its employees to be more assertive with potential customers. Click’s president has issued a memorandum to all department heads. She is requesting the attendance of all employees, but attendance is not mandatory. However, the memo makes clear the president will consider anyone who does not show up as not being a team player, a fact which may be reflected on the next employee evaluations. Does Click have to pay its non-exempt employees for attending the retreat?

Training

MOST LIKELY YES --Attendance at lectures, meetings, seminars and similar activities does not have to be counted as work time if all of the following four criteria are met:–Attendance is outside the employee’s regular working hours;–Attendance is in fact voluntary;–The course, lecture, or meeting is not directly related to the employee’s job; and–The employee does not perform any productive work during such attendance.

Training

Attendance is not voluntary if the employee is led to believe that his present working conditions or the continuation of his employment would be adversely affected by nonattendance.

Based upon these regulations and the president’s statement about nonattendance being reflected in upcoming employee evaluations, the safest course is to pay all non-exempt employees for the time they spend at the retreat, although this is not an absolutely clear cut case.

Training

Certain types of training classes may be excluded from hours worked even though the courses relate to the employee’s employment, such as bona fide apprenticeship programs and courses offered by the employer as a benefit for employees which correspond to courses offered by independent institutions of learning.

Training

Questions?PowerPoint can be downloaded at

www.enochlaw.com