Posts from April 2018.

On April 12, 2018, the Department of Labor (DOL) issued an opinion letter addressing the intersection between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) when an employee needs multiple rest breaks throughout the day due to an FMLA covered serious health condition.

Background

The FLSA generally requires employers to compensate employees for all time spent working. Although the Act does not require employers to provide rest or meal breaks, it does regulate whether such breaks—if provided by the employer—must be paid as compensable ...

Unless we have been living under a rock for the last few weeks, it is likely that we may have wondered if former FBI Director James Comey could sue President Trump for defamation. Indeed, President Obama’s former Ethics Chief, Norm Eisen, recently tweeted that the president’s “false, malicious accusation of criminal conduct is libel [published defamation] per se by Trump. @Comey could sue-& might win…”  Without weighing in on the viability of such a claim, however, it is prudent to review a few defamation principles to keep in mind.

Acknowledging that laws vary from ...

The Equal Pay Act can create significant exposure for employers, if not considered when setting female employees’ wages – especially if you are relying upon a female applicant’s prior salary history and there is a difference in the pay of similar male employees.

The Equal Pay Act is dangerous for employers because plaintiffs are not required to prove discriminatory intent by the employer. All a plaintiff must show is that there is a wage disparity for equal work requiring the same skill, effort and responsibility, which is performed under similar working conditions. Once a ...

In April 2018, the US Department of Labor (DOL) Wage and Hour Division, launched  the six-month pilot Payroll Audit Independent Determination (PAID) program which provides a voluntary framework for employers to self-report potential FLSA overtime and minimum wage violations to the DOL and to resolve those violations without incurring additional penalties or liquidated damages. There are important benefits (and potential risks) to consider before signing up for PAID:

  • The benefit of the program is that if an employer self-reports, the DOL will only require the employer to pay back ...

On April 2, 2018 in the matter of Encino Motorcars, LLC v. Navarro, No. 16-1362, 2018 WL 1568025 (U.S. Apr. 2, 2018), the Supreme Court rejected the long held principle that exemptions to the Fair Labor Standards Act (FLSA) should be construed narrowly and found that car dealership service advisors are exempt from the FLSA’s overtime-pay requirement. In a 5-4 decision, the Court held there was no reason or basis under the FLSA to narrowly interpret FLSA exemptions and that exemptions should be read equally as any other provision of the Act.

Impact – Car dealerships can ...

Back in November we reported on a federal judge ordering several members of management to turn over messages from their personal email accounts and counseled employers to be proactive in managing employees’ use of personal email for company business. The guidance set forth there rings true for text messages and other forms of electronic communication (e.g. WhatsApp, Slack, Trello and myriad others) as well.

As we explained in our prior post “document production” encompasses not only “documents” in the traditional sense, but all relevant information “stored in ...

When it comes to employee bonuses, employers often prefer “discretionary” bonus policies—as opposed to more rigid and definite policies and procedures that answer the questions of “who” is eligible to receive bonuses, “when” bonuses will be paid, and “how much” the bonuses will be.

A problem can arise, however, when the underlying method the employer uses to award bonuses remains consistent from year to year.  Under Illinois law, for example, past practice—even in a non-union setting—can give rise to a legally-enforceable expectation that a given ...

Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. 

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