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To be exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA), an employee must perform certain duties and be paid on a “salary basis,” meaning that the employee receives a set salary each week, regardless of the number of days or hours worked, with limited exceptions. Under the FLSA, an employer may deduct from the pay of an exempt employee only under the following circumstances:

  • No work: When an exempt employee performs no work for an entire workweek, the employer is not required to pay the employee’s salary for that week.

In today’s global economy, it has become increasingly common for companies based in the United States to engage workers who live abroad for various purposes. U.S. companies often classify these workers as “independent contractors” to avoid having to navigate the employment landscape in other countries. However, U.S. companies should be aware of the potential pitfalls of misclassifying foreign workers, particularly in countries where employment laws tend to be more employee-friendly than U.S. law. Employers should consider the following factors when engaging foreign independent contractors to work abroad.

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As a follow up to my most recent post about the media coverage of the emerging trend of employers asking or requiring job applicants and/or current employees to provide their Facebook or other social media passwords, Maryland just passed legislation on Wednesday that bans employers from asking applicants and employees for their personal online passwords.

Maryland is the first state to enact legislation on this issue.  But other states are considering similar legislation, including California, Illinois, Michigan, Minnesota, Missouri, South Carolina and Washington. Even Congress is considering a federal law that would protect applicants' and employees' privacy in their personal online passwords.  Virginia and DC have not yet addressed the issue.

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A new trend that has emerged in the employment arena is employers asking applicants to provide their Facebook username and password or other social media login information during the interview process.  Other employers are making compliance with this new policy a condition of employment.

Many Facebook users have increased the security settings on their accounts so that very little, iif any, of their profile is visible to the public.  In response, some employers seek social media login information in order to log in to applicants’ Facebook accounts in order to look at the applicant’s profile and other information that cannot be viewed by the general public.

GavelIn our last two posts, we discussed terminating an employee and the importance of documentation. Earlier this week, in an opinion issued by the 4th Circuit Court of Appeals in Richmond, Virginia, Employers were provided with another example of why documentation is so important in the employer/employee relationship.  

The Case

The facts of the case are fairly straightforward: (1) Employee was terminated due to poor performance; (2) At the time she was terminated she was also pregnant; (3) Employee filed a lawsuit claiming pregnancy discrimination under Title VII. 

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Do you have an employee whose performance isn't cutting it? If so, you will want to read this two part series on considerations and steps to take before terminating an employee.

Many employers terminate employees without following some basic procedures that take little effort on the part of the employer but can prevent major headaches later.   Following these rules prior to termination can help employers avoid problems post-employment and can provide a full defense to an employee’s claim of wrongful termination.

If you have an employment agreement with the employee, you will need to follow the provisions governing that agreement.  However, the majority of employees are employees at-will and therefore the following steps and procedures are highly recommended for employers.

Payroll Debit Card

In recent years, an increasing number of employers have begun using Payroll Debit Cards to pay employees who are unable or unwilling to sign up for direct deposit.  Payroll Debit Cards or “Paycards” are similar to reloadable credit cards and gift cards.  Instead of receiving paychecks, the employee receives the card which resembles a standard credit/debit card.  Employees are then able to use the card as a standard debit card to withdraw cash, transfer funds and to make purchases.

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The Pregnancy Discrimination Act requires that employers treat pregnant employees the same as non-pregnant employees who suffer from some injury or sickness that occurred outside of work. 

In our last post, we reviewed the D.C. Fire Department’s change to their pregnancy policy.  In this post we take a look at what the Pregnancy Discrimination Act requires. 

The Pregnancy Discrimination Act:  A Brief History

In 1976, the U.S. Supreme Court found that under Title VII, discrimination based on pregnancy was not sex discrimination.  Unhappy with this interpretation, Congress passed the Pregnancy Discrimination Act (PDA) which became law in 1978.  The PDA amended Title VII and specified that sex discrimination does include discrimination on the basis of pregnancy.

The Wage and Hour Division of the Department of Labor recently released a timesheet application on the Apple iTunes store.  On May 9, 2011, “DOL – Timesheet” became available for download.  The application allows employees to keep track of hours worked and amount of pay owed including overtime.  Through the app, employees are able to maintain an “electronic timecard” where they click to clock-in and out, record breaks, enter comments, receive a summary and even send the summary via email.

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While the application contains many features, it also possesses several significant limitations.  The “app” does not have the capability to take into account items such as tips, commissions, bonuses, deductions, and holiday pay.  Still, in a press release from the Department of Labor, Secretary Hilda L. Solis praised the app stating “this app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.” 

Currently, the app is only available for iPhone and iPod Touch.  The Department of Labor has plans to make versions available for Blackberry and Android users in the future. 

Since its release there has been quite a bit of commentary about its usefulness.  As of today the app has a rating of 3.5 stars out of a possible 5 in Apple’s app store.   Many of the ratings come from two extremes – users either love the app or they despise it.  Comments ranged from “simple and efficient”, “easy interface” to complaints about how the app will lead to increased complaints from employees.

While the app will be helpful for some employees, the results produced will only be as accurate as the data entered.  Employers could face increased complaints over alleged miscalculations in time worked due to an employee’s failure to record time in the app at the same time as they clock-in and out for work. 

Additionally, the release of the app signifies the importance of ensuring that employees are fully aware of employer payroll policies.  Taking a proactive approach in refreshing employees on timekeeping policies and ensuring that recordkeeping is adequate, complete and in compliance with State and Federal law will go a long way towards avoiding future issues and complaints.