June 30, 2011

Parades, puppies and the “Fargo” woodchipper

Posted in Attendance, Breaks, Computer Use, Confidential Information, Contracts, Employee Privacy, Fair Labor Standards Act, Hours Worked, Leaves of Absence, Leaves of Absence, Overtime, Record Keeping, Social Media in the Workplace, Telework / Telecommuting, Vacation Policies tagged , , at 8:51 am by Tom Jacobson

Last week I took a staycation.  Despite the fact that it was one of the rainiest June weeks on record for our neck of the woods, we had a great time. We watched two parades and a swim meet, spent time with our son who is home on leave from the Air Force Academy, and we played with our litter of Labrador pups .  We even took a side-trip to Fargo to see the wood chipper from the movie, Fargo.  And, except for my first day off when I needed to put out a fire that started the day before, I managed to not check my work e-mail or voice mail for a week.

But what if I had checked my e-mail or voice mail?  What if I had texted my secretary or my clients?  What if I had decided to post this commentary from home during one of those downpours?  Telecommuting, or “telework,” would have allowed me to turn my staycation into a working vacation.

Telecommuting offers tremendous benefits.  It allows for flexible work arrangements.  It can save on fuel and other transportation costs.  It can keep employees productive when circumstances would otherwise prevent them from working.

But telecommuting can also be a trap for the unwary.  Aside from the fact that it can distract us from our R&R, working remotely raises a number of employer-employee issues, such as:

* How are working hours tracked for an employee who works remotely?

* Is the telecommuting employee getting the break time to which s/he may be legally entitled?

* Is the employee entitled to overtime when the hours worked remotely are added to his/her workweek?

* Is an employee really on “leave” if s/he is working remotely while supposedly taking time off?

* Is the employee entitled to any tax deductions for a “home office”?

* To what extent is an employee entitled to worker’s compensation benefits if s/he is injured while working from home, and does this give the employer the right to inspect the employee’s home for safety concerns?

* How secure is the employer’s data if an employee is accessing it from or storing it on his/her home computer?

* What privacy rights, if any, does an employee have with respect to his/her cell phone, computer, etc. that is used to work remotely?

* Which jobs work best for telecommuting arrangements?

* What is lost (or in come cases, gained) when telecommuting co-workers do not have face-to-face contact?

* How can the employer be assured that the teleworking employee is actually working?

To avoid falling into a telecommuting trap, employers need to understand the risks, as well as the rewards, of remote working arrangements.  Then, by developing telecommuting agreements and policies,  employers can take full advantage of the benefits that telecommuting can offer.  For more information about the development and use of such policies and agreements, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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May 27, 2011

Employees without time records? The DOL now has an app for that.

Posted in Fair Labor Standards Act, Hours Worked, Meal Periods, Overtime, Record Keeping tagged , , , at 10:31 pm by Tom Jacobson

In its ongoing effort to more aggressively enforce the Fair Labor Standards Act, the U.S. Department of Labor has introduced its first app.  It’s the DOL Timesheet app  which enables employees to use their smart phones to track their hours worked and wages owed.

In some respects, this is nothing new.  Employees have always had the right to keep track of their work hours, and the DOL  also provides printable calendars for tracking time and wages.  The DOL’s app simply provides a new tool that will make it even easier for an employee to do so.

It is an employer’s responsibility to keep records of the hours worked by its employees.  If those records are not kept, then in the event of a dispute over wages owed, overtime or any other time-keeping issue, the DOL’s new app may provide just the evidence the employee or the DOL needs to prove their case.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

September 15, 2010

DOL to Disney: Failing to pay for hours worked ain’t no Mickey Mouse

Posted in Exempt/Non-Exempt Employees, Fair Labor Standards Act, Hours Worked, Record Keeping tagged , , , , at 5:00 pm by Tom Jacobson

Sixty-nine employees of Disney World in Orlando, FL will be receiving $433,819.00 in back wages after a U.S. Department of Labor investigation uncovered violations of the Fair Labor Standards Act.

The workers were a group of non-exempt inventory control clerks in the park’s food and beverage department who were not paid for work done before and after their normal shift, during meal times, and when working from home.

The FLSA requires that non-exempt workers be paid for “hours worked.”  Generally speaking, “hours worked” include all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal work activity of the workday.  This includes time spent working when employees are supposed to be on their breaks.

“While Walt Disney has specific rules regarding off-clock work, an investigation conducted by the Department of Labor’s Wage and Hour Division found that managers within the company were not adhering to those important policies,” said Wage and Hour Deputy Administrator Nancy Leppink. “It is not enough to have policies. Management must also ensure that all supervisors are implementing them.”

The DOL’s investigative findings stress how important it is for employers to have and enforce policies for tracking and paying for the  “hours worked” by their non-exempt employees, even the time spent working from home and on breaks.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

August 20, 2010

Tick tock, we’re on the clock; Qwest employees’ FLSA claims allowed to proceed

Posted in Fair Labor Standards Act, Hours Worked, Hours Worked, Overtime, Personnel Records, Record Keeping tagged , , , , , at 9:29 am by Tom Jacobson

A July 20, 2010 decision by the United States District Court for the District of Minnesota stresses how important it is for employers to understand when their employees are “on the clock” and are, therefore, entitled to be paid.  The case also stresses every employer’s responsibility to maintain accurate records of their employees’ work time.

At issue in the case were two Qwest policies designed to gauge its technicians’ performance.  According to the technicians, in order for them to succeed under the policies, they had to work outside their regularly scheduled work day (for example, by coming in early in order to do the things required by the policies).   Therefore, they argued that under the Fair Labor Standards Act (FLSA), they should have been paid for that time, including any  overtime.

Qwest argued that because the technicians chose to work the extra hours in order to meet the company’s performance standards, the company did not have to pay them for that extra time.  The Court disagreed, saying “[t]he reason an employee continues to work beyond his shift is immaterial; if the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted.'”

Qwest also argued that it should not be liable for the extra time worked because the employees failed to report it on their time sheets.  The Court rejected this argument as well, noting that it is the employer’s burden to maintain accurate time records even when employees are responsible for recording their own hours on a time sheet.

A few extra minutes of  unpaid work time may not seem like a big deal.  However, when those few minutes are added to the work-days of multiple employees over time, the consequences of the resulting FLSA violations are enormous.  Therefore, employers must understand when their employees are “on the clock,” and they must maintain accurate records of that work time.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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