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Lee Tankle

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Q.  I suspect that our company may have inadvertently committed overtime and minimum wage violations. Is there a way I can make this right without incurring substantial legal liability?

A.  Possibly. Earlier this year, the United States Department of Labor (DOL) Wage and Hour Division announced the creation of a new nationwide pilot program called the Payroll Audit Independent Determination (PAID) program. In short, the PAID program encourages employers to conduct payroll self-audits and, if they discover overtime or minimum wage violations, self-report those violations to the DOL and work with the DOL to rectify the problem and ensure employees are paid any wages owed.

Q.  If a supervisor makes a comment about an employee’s age, will the company be liable for age discrimination?

A.  While ageist comments are never appropriate in the workplace, an Illinois federal court recently ruled that a single age-related comment was insufficient for an employee to prevail on an age discrimination claim.

Q: I have employees working in Maryland. What do I need to know and do in order to comply with Maryland’s new paid sick leave law?

 A: The Maryland Healthy Working Family Act (the “Act”) went into effect on February 11, 2018. In short, the Act requires employers with 15 or more employees working in Maryland to provide paid sick and “safe” leave for qualified employees. Employees eligible for paid leave are entitled to be paid at the same rate the employee normally earns. Employers with 14 or fewer employees are required to provide unpaid sick and safe leave. All covered employers with employees whose primary work location is in Maryland are required to provide earned leave, regardless of where the employer is located.

Q.  Our company wants to establish an internship program and host student interns to work alongside our employees. Do we need to pay the interns?

A.  Possibly. Over the past few years, courts and the Department of Labor (“DOL”) have carefully examined the relationship between businesses and unpaid student interns to determine whether students working at a company are more properly classified as unpaid interns or employees protected by the Fair Labor Standards Act (“FLSA”).  Under the FLSA, if an individual is deemed a non-exempt employee, that employee must be paid at least a minimum of $7.25 per hour and one and a half times their regular rate of pay for all hours worked in excess of 40 in a workweek.  The minimum wage is higher in many states, including New York and New Jersey.

Q.  Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?

A.  Possibly.

While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.

Q: Do I need to pay non-exempt employees when they go on short rest breaks of 20 minutes or less?

A: Yes.

The United States Department of Labor (“DOL”) has long taken the position that when employers offer non-exempt employees short breaks of under 20 minutes, the time spent on that break is “compensable” under the federal Fair Labor Standards Act (“FLSA”).

Q: Do I need to pay my employees if my company has closed or temporarily shut down operations due to a natural disaster or inclement weather?

A: It depends.

In the aftermath of Hurricanes Harvey and Irma, and in anticipation of the upcoming winter snow season, many employers are questioning whether they need to pay employees when their company cannot open due to a natural disaster or inclement weather.

Q.  What is the status of the EEOC’s requirement that we submit pay data with our annual EEO-1 Form?  Also, have there been any updates on the lawsuit blocking the DOL’s rule raising the salary basis for certain non-exempt employees?

A.  As we reported previously, the EEOC, as part of its effort to detect and remedy pay discrimination, amended its EEO-1 Form to require that employers with 100 or more employees submit detailed pay data on their workforce.  On August 29, 2017, the OMB sent a memorandum to the EEOC, staying implementation of this requirement.  Thus, at least for now, employers may limit the information provided on the EEO-1 Form to data on race, ethnicity and gender by occupational category (but not data on pay or hours worked).

Q: I heard a lawsuit was filed challenging the implementation of the revised overtime regulations. Do I still need to take steps to comply with the revised rules by December 1?

A: Yes! While it is true that 21 states and more than 50 business groups have filed two lawsuits challenging the  Department of Labor’s revised overtime regulations, the filing of these lawsuits did not stay the effective date of the rules.  In the past few days, the House of Representatives passed a bill to delay implementation of the revisions by six months, and a similar bill was introduced in the Senate.  However, it is unlikely that either bill will be signed into law, given the President’s opposition to it.