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Misclassification of Employees: How Companies Avoid Paying Overtime

What you need to know if your paycheck is short Has this ever happened to you? You put in a ton of overtime at work, forego fun activities and family time, and come home exhausted for days or weeks on end. You figure it’ll all be worth it once you get that big overtime paycheck. Then when your check comes in, it’s suspiciously light. This is not as uncommon as you’d think. One sneaky way companies avoid paying overtime is by misclassifying employees as exempt so they don’t qualify for time-and-a-half. Let’s talk about how companies game the system—and what you should do if you think it’s happening to you. Who is exempt from overtime pay?  There are two types of employee classifications: exempt and non-exempt. Exempt basically means “exempt from overtime.” Under the Fair Labor Standards Act (FLSA), employers are required to pay non-exempt employees at least the minimum wage, plus time and a half for all hours worked over 40 in a week. But some categories of employees, those who are classified as exempt, don’t qualify for time-and-a-half no matter how many hours they work. Exempt employees may include: Executives Despite the name, you don’t have to be [...]

By | 2018-11-01T15:44:23+00:00 October 31st, 2018|Overtime Class Actions|0 Comments

Need Sick Leave for Family Care? Find out What You Qualify For

What you need to know about the Family Medical Leave Act Your child or your parent becomes ill and requires care. You need some time off from work. Now what? You may be wondering if you can use your accrued sick leave to care for someone else. Or perhaps you don’t have any accrued leave to use in the first place … and you’re wondering if there are still options for taking time off. With the added strain of caring for a family member, the last thing you need to worry about is your job security. Let’s talk about your rights under the Family Medical Leave Act (FMLA). What is the FMLA? The FMLA is a federal labor law that provides job protection for certain employees who need to take leave for qualified medical or family reasons. (We’ll discuss those reasons in more detail below). Employees who are eligible may take up to 12 weeks of leave and must be allowed to retain any company-provided health benefits during that time. Upon returning to work, employees must be returned to their regular positions, or to positions that are equivalent in compensation, job duties, and opportunities for advancement. Which employers have to [...]

By | 2018-10-14T22:11:42+00:00 October 14th, 2018|Family and Medical Leave Act Claims|0 Comments

Lactation Room Requirements FAQ: Does Your Employer Measure Up?

What nursing moms need to know when returning to work If you’re returning to work while breastfeeding, you’re probably somewhat stressed about how you’re going to manage expressing breastmilk during the workday. It’s a problem many women have faced—including my wife after the births of each of our four children. I’ve seen firsthand how knowing what to expect can help ease the transition back into the working world. One of the biggest questions you’re probably worried about: Where are you going to pump? Let’s take a look at what you need to know about lactation rooms before you return to work. What are the laws for breast pumping at work? Federal, state, and local laws may apply to nursing moms. Federal breastfeeding laws The Affordable Care Act (ACA), more often known as Obamacare, amended the Fair Labor Standards Act (FSLA) to state that non-exempt employees must be given a private space other than a bathroom to express breastmilk during the workday. Generally, “non-exempt” refers to people who are qualified to receive overtime. There are two important exclusions that working moms should note: The law only applies to women who are employed by companies or agencies that are bound by the [...]

By | 2018-10-14T22:25:22+00:00 September 20th, 2018|Pregnancy Discrimination, Uncategorized|0 Comments

Should You Sign A Non-Disclosure Agreement?

After an extensive job search, you are offered a position with a large corporation. Before accepting, you are presented with an employment agreement including a non-compete clause, a non-solicitation clause, and a non-disclosure clause. You are required to sign these documents as a condition of employment. Feeling you have no real choice, you sign the documents. Life goes on. You’ve been working for the same company for three years when you are offered a better position with a higher salary in the same field in the same state as your current job. You then remember all those documents you signed. What now? Did you sign away your right to change jobs? Non-compete, non-solicitation, and non-disclosure clauses Non-compete agreements typically offer employment on the condition that the employee, while employed for that employer, and for a specified time following employment, shall not work for or start a business that competes with the employer, in the same geographic area. The geographic area is usually defined in the non-compete clause. Non-solicitation agreements specify that the employee shall not solicit former coworkers to a new place of employment or business. Non-disclosure agreements typically require the employee to agree not to disclose trade secrets or [...]

By | 2018-06-30T13:54:49+00:00 June 30th, 2018|Employment Agreements|0 Comments

Gig Workers Have Rights Too

Gig workers and independent contractor status Many workers in the gig economy sign an acknowledgement that the worker is an independent contractor and not an employee. However, sometimes that is not the end of the story. For one thing, courts are increasingly evaluating whether the company exercises sufficient control over the worker’s everyday tasks that he or she should in fact be classified as an employee. This classification is crucial as workers who are classified as independent contractors are not entitled to the guarantees and protections of the Fair Labor Standards Act (FLSA) or other employment statutes. This affects the worker’s entitlement to minimum wage and overtime compensation, unemployment and disability insurance, family leave, workers’ compensation, and sick leave. These statutes only apply to workers who are classified as employees. Further, independent contractors are generally not entitled to employer-sponsored benefits, including health insurance, retirement plans, and paid time off. As the gig economy evolves, so does the law On June 7, 2018, the U.S. Department of Labor issued a news release reporting that 3.8 percent of U.S. workers, that is 5.9 million individuals, held contingent jobs as of May 2017. With gig workers numbering in the millions, the classification of [...]

Should Job Applicants And Employees Answer Employers’ Disability-Related Questions?

You arrive at a job interview and when greeting your potential employer, he notices your tinted glasses and asks, “Do you have a problem with your vision?” You hesitate to answer but he persists, asking if you would need any accommodations to continue the interview or perform the job. You tell him that your tinted glasses are not for a vision problem but rather due to light sensitivity. He begins to ask more questions about whether this would affect your ability to work, how much work time you lost at your last job, and whether you take any prescription medications. You hesitate to answer but feel intimidated and believe you won’t be offered the job if you don’t respond. After leaving the interview, you wonder if the employer was entitled to ask you such questions. One way that the Americans With Disabilities Act (ADA) protects the rights of job applicants and employees is by limiting disability-related questions during the job application process and employment. This is to prevent employers from discriminating against qualified applicants and employees who have a disability. Disability-related inquiries include direct or indirect questions relating to an applicant’s or employee’s actual or perceived disability as well as [...]

By | 2018-06-07T20:57:46+00:00 June 7th, 2018|Americans with Disabilities Act Claims|0 Comments

Be Careful What You Wish For – How Collective Action Waivers May Hurt Employers

What is a collective action? A collective action is a type of class action that is brought by employees to assert their rights under the Fair Labor Standards Act (FLSA), most commonly actions alleging wage and hour claims. By utilizing the collective action process, employees can join together to assert individual claims in one action, saving time and money. These types of claims often assert that employees are misclassified and therefore entitled to overtime, or have not been paid for all the time worked, travel time, or meal breaks. Supreme Court upholds collective action waivers in arbitration agreements The Supreme Court of the United States recently held that collective action waivers in employee/employer arbitration agreements are enforceable. These types of waivers are often signed by employees as a condition of accepting a job. In a 5/4 decision, the Supreme Court found that class action waivers do not violate employees’ right to “protected concerted activity” under the National Labor Relations Act (NLRA). The NLRA protects employees’ right to communicate with each other and join together to take concerted action to improve working conditions and participate in union-related activities. The Court held that class actions do not constitute concerted activity under the [...]

Are You Entitled To a Reasonable Accommodation?

What is a reasonable accommodation? A reasonable accommodation means a change to the job or working environment that enables an employee with a disability to perform the essential functions of the job, or that enables an applicant with a disability to apply for a job. To be eligible for a reasonable accommodation under the Americans With Disabilities Act (ADA), an employee must be qualified for the job and have a disability caused by a medical condition that is covered by the statute. The ADA does not specify the medical conditions that qualify as disabilities under the statute. Instead, the statute requires that an employee must have a physical or mental condition that substantially limits a major life activity, a history of disability, or be regarded by the employer as having a disability. What types of medical conditions qualify for a reasonable accommodation? Some employees have medical conditions that require an employer to provide well-established reasonable accommodations such as making the workplace accessible or providing alternate communication methods or devices for visually-impaired or hearing-impaired applicants and employees. However, there are many other medical conditions that may be the basis for a reasonable accommodation. It is important to note that some people [...]

By | 2018-05-24T14:18:19+00:00 May 24th, 2018|Americans with Disabilities Act Claims|0 Comments

Are You Entitled To Take Family Leave?

Under What Circumstances Can You Apply For Family Leave? Pursuant to the Family and Medical Leave Act (FMLA), an eligible employee working for a covered employer is entitled to unpaid leave in specified situations, including the birth of a child and to care for the newborn and following placement of a child for adoption or foster care. An employee can also request family leave if the employee has a serious health condition or is needed to care for a child, spouse, parent, or other qualifying family member who has a serious health condition, rendering the employee or family unable to care for his or her own basic needs. For example, an employee may request leave: • to provide care for a qualifying family member who is undergoing treatment for a serious health condition such as cancer or heart attack, or who requires care following surgery; • to provide transportation to and from medical appointments for a qualifying family member; • to provide psychological comfort and reassurance to a qualifying family member who has a serious health condition; • to provide respite or substitute care for others who are caring for the employee’s parent, spouse, or child who has a serious [...]

By | 2018-05-18T01:18:59+00:00 May 18th, 2018|Family and Medical Leave Act Claims|0 Comments

Can You Be Fired “At-Will” in Pennsylvania?

In most states, including Pennsylvania, employment is “at-will.” In general, an employer can fire an employee from his or her job at any time and for any reason without recourse by the employee. On the other end of the relationship, an employee can also quit his or her job at any time for any reason without recourse by the employer. There are a few important exceptions to the at-will doctrine. An employer cannot fire an employee for discriminatory or retaliatory reasons. Employees are protected from such actions by employment discrimination statutes and other laws. Also, an employer cannot fire an employee if doing so violates the terms of an employment contract or other contract that sets the terms of the employment relationship. An employment contract can alter the at-will doctrine An employer and employee may enter into a contract that provides conditions of employment that supersede the at-will doctrine. For example, an employment contract can provide that the employee may only be fired for cause or specify the duration of employment. Another example of a contract that alters the at-will doctrine is a collective bargaining agreement that covers union employees and spells out the specific circumstances under which an employee [...]