A Pre-Labor Day Warning

As we come up to Labor Day, a day originally intended to appease labor unions, I thought it would be constructive to remind readers of the current state of affairs with the U.S. Department of Labor. Notice that last word please... it is NOT the U.S. Department of Employers. There is a Secretary of Labor, who has a union background and family history. She has publically stated that that employers are stealing money from their employees and that she is "the new sheriff in town" who will rectify the situation. So the Wage & Hour section has hired more investigators. The Office of Federal Contract Compliance, part of the USDOL, has also stepped up investigations, in particular applying a standard of equal wages to federal contractors. OSHA, also part of the USDOL, has hired more investigators and the Assistant Secretary has announced that he intends to pursue CRIMINAL solutions to safety violations.

The USDOL has also broadcast a program called WE CAN HELP. See my April 6, 2010 post entitled US Department of Labor: It's War! And Employers Are The Enemy .

So what can you do as an employer? Well I would suggest the following:

• Have accurate records of all employees rates of pay.
• Make sure all employees are accurately classified.
• Make sure your independent contractors are indeed independent.
• Have clear policies on overtime and make sure employees and supervisors know them and follow them.
• Have clear policies on work performed outside of "normal" work hours. Often called "donning" and "doffing" rules they deal with the prepartory work necessary to do work.
• Make sure people taking meal breaks do so for at least a half hour and that they are full relieved of ALL duties.

I will give you an example of a violation. My son worked for a landscaping company. The boss had them arrive at the workplace for a meeting prior to being released to the worksite at 8 am. He did not pay them for the meeting. He paid them from 8 am until 5 pm. His reasoning was that they were not performing the work they were hired for by sitting in the meeting. BIG NO-NO.

So if you are dealing with alot of hourly workers be very, very aware.

Productivity Through Technology: A FLSA Trainwreck

As the gas crunch continues to escalate in the U.S. many companies are trying come up with solutions that help employees deal with the costs. One of these solutions is telecommuting, allowing workers to spend time at home and less time on the road. It is nothing new. This interest in telecommuting has been around for awhile as a way to reduce traffic, part of a corporate social responsibility initiative or as part of a progressive employee relations policy. The gas crunch has just sparked more interest. Plus study after study has shown that most workers are more productive as telecommuters.

So companies issue laptops, Blackberrys or Treos or IPhones, and other mobile devices to make their telecommuting (and traveling) employees productive. And with this come a host of issues that make this move more problematic than most companies would like it to be. These issues include:

• Security, for both the devices and the information contained on them.
• Personal use of the devices and privacy expectations
• Use of these devices by non-exempt employees and payment of overtime.

As we have seen in several news stories about stolen government laptops this is certainly an issue. So you need to have some policy and procedure statement that covers leaving these devices laying about for someone else to pick up. This should probably contain some statement about use in WIFI hotspots and use of a firewall. Get your techies to help on that.

If you issue business devices for business use do you allow personal use of those devices as well? Ideally not, that would make it cleaner to deal with. But that is not practical in the real world. You cannot expect your traveling employees to carry two computers so that they will be able to do personal things at night. If you have employees who are gone all week long they need to communicate with family and the bank and their doctors, etc. But you need to have a policy that does let them know that it is a company owned machine and as a result they should have no expectation of privacy and that all information on the machine is subject to review by the company if it is deemed necessary. This expectation of privacy also needs to apply to company owned phones and texting devices. All of that information is recoverable and employees need to be aware of that fact.

The train wreck I alluded to in the title is with the Fair Labor Standards Act. The FLSA requires that all non-exempt employees (both hourly and salaried non-exempt employees) be paid for time worked more than 40 hours in a week (in some state and local jurisdictions for more than 8 hours in a day). This means if you have a non-exempt employee with a company issued laptop/Blackberry/phone and they are checking email, working on projects, etc. you have to track all their time and then compensate them for the overtime. This can get very complicated, particularly if those devises are used for personal things.

We have learned that it is human nature that when an email pops up it gets read, especially on a Blackberry (that is why they are referred to as a "Crackberry.") Few of us ignore that late night email or that after-hours call. The law does allow some "de minimus" use that take up insignificant time. However, if that time starts adding up it then becomes compensible. So you need to set up a policy on the use of those devices and recording that time. If it is going to put someone into an overtime situation then you need to have some approval process in place to make sure OT does not run rampent. It is expensive.

This stuff can get so complicated sometimes that it discourages employers from issuing those devices to non-exempt employees. This can create a "digital divide" in our employee groups. So be careful of your reaction to this. The law can be a roadblock to a technologically productive workforce if you let it be. Perhaps it is time for an other overall of the FLSA. But don't hold your breath. With the influence of unions on the government it is not going to happen.