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Employee’s claim for overtime pay based on ‘gap time’ claim not covered by FLSA

November 8th, 2016  |  Ron Miller  |  Add a Comment

Under Section 207 of the FLSA, employers are generally required to pay their employees one and one-half times their regular pay rate for any hours worked in excess of forty per week. But what about those instances in which the employer defines a full-time work week as less than 40 hours per week. In a recent case, England v. Administrators of the Tulane Educational Fund dba Tulane University, a tutor employed by Tulane University argued that where the university defined a full-time work week as 37.5 hours per seven days, it was required to provide employees overtime for any hours exceeding 37.5 in any given week.

According to the employee, he routinely worked overtime hours, but that the university denied him the benefits paid to other full-time employees. For its part, the university contended that the court should dismiss the employee’s complaint, because he did not adequately plead that he worked more than 40 hours in a specific work week without being compensated for overtime hours during that particular week.

Gap time claim. Claims for uncompensated overtime wages when the employee has worked less than 40 hours in a week are referred to as “gap time” claims. Here, the court agreed with the employer that the complaint attempted to improperly invoke the FLSA where the employee claimed that he was owed the overtime rate for all hours worked in excess of 37.5 hours per week, since the FLSA only provides recourse for hours worked in excess of 40 per week.

The FLSA’s overtime provisions generally do not provide a remedy if the employee has been paid at least minimum wage and has not worked more than 40 hours in a week. To adequately state a claim for unpaid overtime under the FLSA, a plaintiff must plead: “(1) that there existed an employer-employee relationship during the unpaid . . . periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime . . . wage requirements; and (4) the amount of overtime . . . compensation due.”

In this instance, the employee’s complaint failed to adequately allege that the university violated the FLSA’s overtime wage requirements. Rather, his complaint raised a gap time cause of action. Because the employee’s gap time claims were for hours worked in excess of 37.5 per week but less than 40 hours per week, his claim failed as a matter of law. Accordingly, his complaint was properly dismissed for failure to state a claim.

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GAO report highlights work needed to improve targeting of OFCCP enforcement, Jackson Lewis expert notes

November 3rd, 2016  |  Cynthia L. Hackerott  |  Add a Comment

“OFCCP has some work to do,” in light of a recent report by the U.S. Government Accountability Office (GAO) that identifies multiple deficiencies in the focus and consistency of the agency’s enforcement efforts, Mickey Silberman, a Principal in the Denver, Colorado, office of Jackson Lewis P.C. recently told Employment Law Daily. If the OFCCP can do a better job at identifying non- compliant federal contractors for evaluations, that will lessen the audit burdens on compliant ones, he pointed out.

The report assessed how the OFCCP conducts supply and service compliance evaluations, including the methodology, resources, and results, and evaluated the OFCCP’s outreach, assistance, and guidance efforts to assist contractors in complying with the requirements it enforces. It advises that, while enforcement has been the OFCCP’s predominant approach to achieving its mission, outreach, compliance assistance, and guidance in support of voluntary compliance provide important opportunities to extend the agency’s influence beyond the few contractors that are evaluated and help the OFCCP better achieve its mission. Based on its conclusions, the GAO made six recommendations to the Department of Labor (DOL), including that the OFCCP develop a contractor selection process that reflects contractor noncompliance risk, develop a mechanism to monitor contractors’ compliance with AAP requirements, and review and assess the clarity of its contractor guidance. The DOL agreed with the GAO’s recommendations, the report notes. Further details on the report are available here.

Audit selection and procedures. The OFCCP’s process in selecting federal contractors for compliance evaluations, the agency’s primary tool for enforcement, is not designed to focus on contractors with the greatest risk of noncompliance, the GAO report concluded.

“The heart of GAO’s review was OFCCP’s switch in December 2010 from Active Case Management to Active Case Enforcement, which resulted in fewer but more comprehensive audits,” Silberman, Chair of the Jackson Lewis’ Affirmative Action & OFCCP Defense Practice Group and the Co-head of the firm’s Pay Equity Resource Group, noted.

OFCCP Directive 2011-01 (originally numbered Directive 295), dated December 16, 2010, outlines the OFCCP’s Active Case Enforcement (ACE) procedures which replaced the Active Case Management (ACM) procedures implemented by the Bush Administration in September 2008 (via Directive No 285). Under ACE procedures, full desk audits are performed in every compliance evaluation. In contrast, the previous ACM procedures set forth an abbreviated desk audit process that sought to quickly close reviews where there were no indicators of systemic discrimination (i.e., 10 or more potential victims). ACE procedures require that, for quality control purposes, every 25th federal contractor establishment selected for audit will undergo a full compliance review (which includes the full desk audit plus an onsite evaluation). Under the rescinded ACM procedures, absent any indicators of discrimination, full desk audits were performed only in every 25th review and onsite evaluations only in every 50th review.

“The GAO’s primary conclusion is despite the intensity of these audits, OFCCP is ineffective in identifying problematic contractors,” Silberman said.

In the GAO’s view, the core problem is the “’weakness’” of the audit selection process, which is bound by 4th Amendment limitations,” Silberman explained. “The factors in the OFCCP selection algorithm aren’t specific enough.”

“Given these limitations,” he continued, “OFCCP is unable to quantify the extent to which federal contractors are noncompliant, and [the agency] does not have reasonable assurance that it is focusing its efforts on those contractors at greatest risk of not following equal employment opportunity or affirmative action requirements.”

Thus, “OFCCP is in a difficult position. It’s bound by the 4th Amendment and limited resources to auditing only a fraction of contractor establishments selected via administratively neutral criteria. Compliant contractors would like to see OFCCP do a better job of targeting problematic contractors but, like the Fair Pay & Safe Workplaces rule, [the OFCCP’s audit selection procedures are] casting a very wide net,” he observed.

AAPs. The GAO report also found that the OFCCP lacks a mechanism to ensure contractors are voluntarily complying with nondiscrimination requirements by annually updating their written Affirmative Action Programs (AAPs).

“OFCCP notes that 85 percent of [written AAPs] are not timely submitted.  That suggests to GAO that contractors are not maintaining current AAPs,” Silberman said. “One of GAO’s recommendation is that all federal contractors electronically submit annual AAPs to OFCCP to ensure plans are developed annually as required,” he added.

“It seems likely this could happen, but the devil is in the details,” he continued. “Does this include data or only the AAP narrative text or just a certification?  And if data is submitted what will OFCCP do with it?”

Inconsistent enforcement across regions. “The GAO report also notes a well-known “secret”:  there are notable differences in how audits are conducted from region to region and district to district,” Silberman observed.

This lack of consistency in enforcement across OFCCP regions is due to the agency’s failure to timely train new compliance officers and provide essential ongoing professional training for all of its compliance officers, the report concluded.

“GAO notes a lack of training and turnover as causes but there is also the issue of how much authority compliance officers actually have these days and the complexity of the issues, particularly pay issues,” he noted.

Outreach. “Another significant aspect of the GAO report is the analysis of OFCCP’s compliance outreach efforts to assist contractors,” he said. “The report concludes OFCCP is not doing enough to assist contractors and believes doing more would be beneficial.”

Although regulatory requirements regarding contractors’ nondiscrimination obligations have changed—thereby requiring contractors to significantly adjust their policies, practices, and data collection systems in order to comply—the agency has reduced the outreach and compliance assistance efforts that can help contractors understand these changes and workers understand their protections, the report states.

“Compliance assistance is a valuable tool in OFCCP’s box,” Silberman acknowledged, “but it may not get to the root of tailoring OFCCP efforts to identify contractors with compliance issues such that burdens on compliant contractors are reduced. “

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‘Going and coming rule’ shields employer from liability for vehicle crash

October 27th, 2016  |  Ron Miller  |  Add a Comment

Carpooling, and rideshare vans (either informal or employer facilitated) offer employees an economic way to spread out the expense and hassle of getting to and from work. But what if something goes wrong during the commute? Accidents are an everyday occurrence regardless how careful we strive to be while traveling in our vehicles. So what is an employer’s liability if a group of employees have an “at fault” accident while commuting home after wrapping up with work? A California employer was faced with just that experience in Pierson v. Helmerich & Payne International Drilling Co.

Carpooling employees. After the end of a shift, an oil rig worker was returning to his home and giving his supervisor and a coworker a ride to their employer-paid hotel, which was located along his route home. About 13 miles from the oil rig; his pickup truck crossed the double yellow line into oncoming traffic and collided with a pickup driven by a motorist. Both drivers were pinned in their vehicles and needed to be extracted by the local fire department, and all occupants were transported by ambulance to the hospital.

The motorist filed a personal injury action naming the employer as a defendant, seeking to hold it vicariously liable for the accident. The employer asserted that the incident occurred when its employee was driving home from work and did not occur while he was in the course or scope of his employment. A trial court dismissed the motorist’s claim. The motorist appealed, arguing that this case fell into one of the recognized exceptions to the going and coming rule.

“Going and coming rule” applied. By virtue of the “going and coming rule,” which states that employees driving to and from work are considered outside the scope of employment, the employer was not liable to the motorist who was injured in the vehicle crash caused by carpooling oil rig workers, ruled a California Court of Appeal, agreeing with the employer that the motorist’s claim was barred.

There was no evidence the employer expressly or impliedly required or requested the driver to provide transportation to his supervisor between the hotel and the jobsite. Rather, the supervisor’s requests for such rides were personal in nature and were not reasonably imputed to the employer. Employees were responsible for arranging and paying for transportation from the employer-provided hotel to the jobsite, and the employer did not require them to carpool or rideshare. Comparable cases have applied the going and coming rule to employees who made their own carpooling or ridesharing arrangements, observed the appeals court. As a result, because the rule applied, the motorist could not hold the employer company vicariously liable under the doctrine of respondeat superior for the tortious conduct of the driver.

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Must employee explicitly say ‘I need an accommodation?’

October 25th, 2016  |  Joy Waltemath  |  Add a Comment

Your employee has taken FMLA leave for neck surgery. She’s come back to work but with physical restrictions, including lifting restrictions and the inability to work more than an eight-hour shift, which you have accommodated—although you let her know she can’t expect to work just eight-hour shifts indefinitely. After she’s been back about a month, her supervisor posts a memo requiring department employees to provide updated copies of their basic CPR certification by a certain date.

Employee can’t get CPR recertification. She is not the only employee whose CPR certification is out of date, and although she passes the written test for certification, she informs her supervisor, his supervisor, and the HR department that she can’t take the physical portion of the test until her doctor clears her. But she has a doctor’s appointment in a couple of days. Her letter also thanks you all for understanding her condition, says she still experiences pain, and says she wants to “protect the surgery” she had on her neck.

Not qualified. Immediately after her doctor’s appointment, the employee calls her supervisor to say that her doctor determined she needed at least four more months of physical therapy (!) before she can take the physical CPR certification. The next day, you fire her because she cannot perform CPR, which is an essential function of her position. She sues you, alleging among other claims that she was unlawfully fired based on her disability, but you win on summary judgment because the district court determines that the employee was not qualified to perform the essential functions of her job—she was unable to perform basic CPR, for one thing. Plus, because the employee never requested a short-term transfer to another position, the court found there was no obligation to reassign her.

“Implied” accommodation request? You’re good, right? Well, this month a divided Eighth Circuit ruled that even though an employee did not explicitly request a reasonable accommodation for the CPR recertification requirement that led to her firing, a jury could decide that her employer should have understood her communications were an accommodation request. In the case, the employer was aware of the employee’s chronic neck condition, her surgery, her ongoing pain, and the limitations she experienced because of it. She notified her employer that she could not become recertified until she had completed physical therapy, and she provided the timeframe for completion.

“Should have understood.” Although the appeals court agreed that there was no question that CPR certification was an essential function of the job, it said the issue was whether she could have performed that essential function with accommodation. The facts could lead a reasonable jury to find that the employee had made her employer aware she needed accommodation, even if she did not ask for one “in so many words.” These facts provided evidence from which a jury could conclude that the employer “should have understood—or did understand” the employee was actually asking for an accommodation when she wrote she couldn’t complete the physical portion of the CPR certification without additional physical therapy.

But wait—there was a dissenting opinion, which argued that the majority opinion collapsed two distinct elements of a disability discrimination claim, effectively eliminating the requirement that an employee clearly request accommodation. There are no magic words like “reasonable accommodation” necessary, but the employee’s notice must “make it clear to the employer that the employee wants assistance for his or her disability.” The dissent stressed that circuit precedent had never said that merely notifying an employer of a disability is an “implied request” sufficient to trigger an employer’s duty to engage in the interactive process.

Asking for accommodation is not an onerous burden on the employee—but asking employers to anticipate employee’s requests for reasonable accommodation could be.

The case is Kowitz v. Trinity Health, 8th Cir., October 17, 2016.

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New EEOC SEP adds priorities for 21st century workplace, backlash from overseas events

October 21st, 2016  |  Pamela Wolf  |  Add a Comment

The EEOC announced that it has approved an updated Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, reaffirming the agency’s commitment to efforts that have strategic impact in advancing equal opportunity in America’s workplaces. The updated SEP generally continues the Commission’s focus on priority areas identified earlier with some modification. The updated plan adds two more priority areas related to the 21st century workplace and backlash against individuals with certain religious and ethnic backgrounds, the EEOC noted in a press release.

Substantive are priorities continued but modified. The EEOC generally continues the substantive area priorities identified in its FY 2012-2016 SEP, which are: Eliminating Barriers in Recruitment and Hiring; Protecting Vulnerable Workers, Including Immigrant and Migrant Workers and Underserved Communities from Discrimination; Addressing Selected Emerging and Developing Issues; Ensuring Equal Pay Protections for All Workers; Preserving Access to the Legal System; and Preventing Systemic Harassment.

In the updated SEP, however, the EEOC makes several modifications:

  • The priority on Immigrant, Migrant and Other Vulnerable Workers is revised to have district offices and the federal sector program identify vulnerable workers and underserved communities within their areas for focused attention. This provides additional support to the development or strengthening of significant partnerships with these groups, which is Performance Measure 8 in the Commission’s FY 2012-2016 SEP.
  • Under the Emerging and Developing Issues priority, the Commission narrows the issues under the ADA that fall within the category to qualification standards and inflexible leave policies that discriminate against individuals with disabilities.
  • Under the Emerging and Developing Issues priority, the Commission adds two areas: (1) A new priority to address issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and (2) A focus on backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern, or South Asian descent, as well as persons perceived to be members of these groups, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities.
  • A continuing focus on gender-based pay discrimination but in addition, in recognition of the pay disparities that persist based on race, ethnicity, and for individuals with disabilities and other protected groups, the Commission extends its equal pay priority to explicitly reach all workers.
  • Removal of the term “retaliatory actions” from the access to the legal system priority, because the term was undefined and resulted in inconsistent application. This priority is refined to focus on significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights, as well as to focus on retaliatory policies.

Coordinating and leveraging resources. The Commission noted that the SEP also emphasizes coordinated strategies across the EEOC to leverage the agency’s resources and promote good government. An integrated approach promotes broad sharing and consideration of ideas, strategies, and promising practices and furthers collaboration and coordination throughout the agency.

“This SEP builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern,” remarked EEOC Chair Jenny R. Yang. “The solid foundation laid by the Commission’s first SEP positions the EEOC to concentrate on coordinating strategies and solutions for these core areas to ensure freedom from workplace discrimination.”

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