Some employee labor laws may seem insignificant, until trouble arises. Take bathroom breaks, for example. Recently, about 6,000 employees at a marketing company in Pennsylvania who were docked for “bathroom and other short breaks” will get restitution in the amount of about $1.75 million. The U.S. Department of Labor (DOL) found the employees—who were mostly telemarketers—weren’t earning the minimum wage of $7.25 per hour if they were required to clock out for bathroom, coffee, smoking and other breaks throughout the day.
What other “little” employee labor law mistakes can land an employer in hot water?
Not knowing how much employees truly work
Last month, the DOL issued its final rule updating the overtime regulations to extend overtime pay to fulltime workers making as much as $47,476 annually. According to the DOL, the final rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. We’ll cover this important news in more depth over the next few weeks.
In the meantime, what first step should employers consider? Take stock of how many hours your employees truly put in. Tara Wolckenhauer, division vice president of Human Resources for ADP, asks: Do you actually know how many of your employees are working over 40 hours per week?
“Some can answer, some really do not know,” Wolckenhauer told HR Drive. “They think exempt employees still work 9-5, but many of them work 70 hours per week.”
Under the Fair Labor Standards Act (FLSA), employees must be paid for time spent at the work site, even if they’re not technically working. However, the same is true for employees who are “on call” offsite. The gray area here is when employees are expected to answer calls and emails during their personal time. Employment law attorneys will debate any time an employee responds to calls or emails from work, they should be paid for that time.
Offering incentives for employee wellness
Also last month, the U.S. Equal Employment Opportunity Commission (EEOC) issued final rules describing how federal laws apply to employer wellness programs. Where employers can go wrong is with the use of medical questionnaires and health risk assessments, often used to determine employee health risk factors in order to customize goals and measurements for each individual in the wellness program. Asking for this type of information—and offering incentives for those who provide the information, as many programs do—enters a grey area of what is considered discriminatory per the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
The final EEOC rules, which go into effect in 2017, state:
- To maintain compliance with ADA, wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage.
- To maintain compliance with GINA, the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.
No incentives are allowed in exchange for information on the current or past health status of employees’ children, or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee’s spouse, and an employee’s children. For more on these new employer wellness program rulings, read the EEOC’s official statement.
Mandating wearable tech
Wearable technical devices have been mandatory in some workplace settings for decades (doctors wearing pagers and construction workers wearing two-way radios, as examples). But now that wearable devices are capable of tracking your every move, will mandatory use become an invasion of privacy?
This is the question many legal experts are currently debating.
Jason Geller, a partner at law firm Fisher & Phillips LLP, says employers who mandate using wearables by employees should develop clear policies and rationales for their use.
“For companies with large workforces, the prospect of tracking [a person’s] whereabouts and productivity can be welcome. But collecting data on employees’ health and their physical movement can trigger a host of potential ethical and legal headaches for employers,” The Wall Street Journal recently published.
While many of these devices are used for wellness program and productivity information, other wearables have features that can record location, audio and data sensitive information, which can turn into a much grander legal debacle for both employee and employer privacy.
Are there other seemingly “tiny” employee labor laws keeping you up at night? Let us know! We’d love to cover the issues important to you, and offer you a chance to discuss them with your colleagues.
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