Wage and hour law present a unique challenge to the legal or HR practitioner. The rules were developed in the Great Depression of the 1930’s where most employees were paid for physical labor, but now the rules must be applied in situations not anticipated by the regulators who developed the rules.
Why is wage and hour law important? It is important to the employer to prevent unanticipated and unplanned for liabilities that may affect the viability of the employer as a going concern.
In wage and hour law, the general rule is that an employee will be entitled to the laws that are most favorable to the employee. Thus, it is possible (and quite common) for an employee to be entitled to the minimum wage of state law and the overtime requirements of federal law – or vice-versa– or any mix of state and federal wage and hour laws. For the attorney or professional advising an employer (or representing an employee), this means it is necessary to determine the requirements of BOTH state and federal law, not just one or the other. This presentation is only a very cursory and general introduction to wage and hour law.
The general federal statute of limitations is two (2) years for a wage and hour violation; however, if the violation is intentional, the statute increases to three (3) years.
If there is a minimum wage or overtime violation, the federal and many states’ laws provide for a 100% liquidated damages penalty for the underpaid wages plus attorney’s fees. The federal liquidated damages penalty is 100% of the wage violation. Attorneys’ fees, even on small violations, may be many times the amount of the violation. In addition, there may be statutory penalties of up to $1,100 per underpaid employee.
Add to the equation that all employees of a certain class are similarly situated. This creates the potential for a class-action against an employer, which can be devastating to the employer’s existence and a lucrative opportunity for employees and their attorneys.
The federal wage and hour law, the Fair Labor Standards Act, may be enforced in any state or federal court of general jurisdiction. Unless there is some other basis for federal jurisdiction, an employer might find itself stuck in state court with a judge who has never tried a case under the FLSA (and who may doubt he or she even has jurisdiction). An employer may be unable to remove the case to federal court (which in this presenter’s experience is “friendlier” to employees than the federal courts.
Under the FLSA, the Department of Labor (DOL) is given discretion for interpretation of the statutory requirements. This means that the wage and hour regulations tend to change with administrations, and with court decisions that occasionally affect or even enjoin the implementation of new regulations. This is currently the case with the so-called “white collar” exemptions which are currently subject to a nationwide injunction for a new Salary Level test.
A. FLSA White Collar Exemptions
1. Definitions: “non-exempt” and “exempt”
It is important to determine whether an employee is a “non-exempt” or an “exempt” employee to prevent wage and hour violations under state and/or federal law.
“Non-exempt” employees are employees who are subject to state or federal minimum wage and overtime requirements.
“Exempt” employees are those who are NOT subject to state or federal minimum wage and overtime regulations.
Under current federal law, with few exceptions[1], to be exempt an employee must meet the following three (3) tests:
(a) Salary level test; i.e., be paid at least $23,600 per year ($455 per week), and
(b) Salary basis test; i.e., be paid on a salary basis without improper deductions for quality or quantity of (absences from) work, and also
(c) Standard duties test, i.e., perform exempt job duties.
These three tests are outlined in the FLSA Regulations[2] (promulgated by the U.S. Department of Labor). Most employees must meet all three “tests” to be exempt.
The three most common exemptions are the executive, administrative, and professional exemptions. The requirements to qualify for these three exemptions under federal law will be discussed below.
2. Effect of state law on exemptions.
As indicated, both state and federal laws must be considered to determine if an employee is exempt from minimum wage and/or overtime. For example, under federal law, a “companion” hired by a family for a sick or elderly family member is exempt from both the minimum wage and overtime requirements of federal law; but may be subject to both the minimum wage and overtime requirements of the applicable state law.
3. Separate Handbook or Addendum for Exempt Employees.
It is this presenter’s recommendation that Employers have a separate Employment Handbook for its exempt employees, or at a minimum, a separate Addendum to its Employment Handbook for exempt employees to avoid confusion with the wage and hour and vacation/PTO rules for non-exempt employees.
This means that the employer must first determine if an employee is exempt or not. If an employee is “exempt” the exemption may be lost due to improper deductions from an employee’s salary unless the employer has a “Safe Harbor” provision in its Handbook. A sample provision is provided as an ADDENDUM to these written materials.
4. Salary Level Test
The current federal minimum salary for exempt employees is $455 per week or $23,600 per year. An employee paid less will not be exempt. An employee who meets the Salary Level Test will only be exempt if s/he also meets the Salary Basis and the Standard Duties Test.
The previous administration, by a revised regulation, attempted to raise the salary level to $913 per week, which is equivalent to $47,476 per year. The new Salary Level Test was to take place on December 1, 2016; however, a Texas Court enjoined the implementation of the new test shortly before it was to become effective.
The current administration has indicated a desire to raise the Salary Level Test, but not to the level proposed by the previous administration. Thus, the practitioner or HR professional needs to stay abreast of the regulatory efforts of the current administration.
5. Salary Basis Test
The second test to determine whether an employee is exempt, or not, is the Salary Basis Test.
Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period that is NOT subject to reduction for the amount of work done or the quality of work performed.
a. Deductions from Exempt Employee Pay.
To remain exempt, the predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Subject to exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. In today’s workplace, that may mean an exempt employee who sends or responds to work e-mails has performed work for that day. However, exempt employees do not need to be paid for any workweek in which they perform no work.
If the employer makes deductions from an employee’s predetermined salary, i.e., because of the operating requirements of the business, the employee is not paid on a “salary basis.” If the employee is ready, willing and able to work, deductions may not be made for time when work is not available. Similarly, an employer may not deduct for minutes an exempt employee is late; however, the employer may have a work rule for the employee’s working hours and discipline the exempt employee for the violation of the rule if the employee does not make it to the designated workplace by the designated time.
b. Circumstances in Which the Employer May Make Deductions from Pay.
Deductions from pay are permissible when an exempt employee:
- is absent from work for one or more full days for personal reasons other than sickness or disability;
- for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
- to offset amounts employees receive as jury or witness fees, or for military pay;
- for penalties imposed in good faith for infractions of safety rules of major significance; or
- for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
Also, an employer is not required to pay the full salary:
- in the first or last week of employment, or
- for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act (FMLA).
c. Effect of Improper Deductions from Designated Amount of Pay.
The employer will lose the exemption against paying overtime if it has an “actual practice” of making improper deductions from salary.
Factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to:
- the number of improper deductions, particularly as compared to the number of employee infractions warranting deductions;
- the time period during which the employer made improper deductions;
- the number and geographic location of both the employees whose salary was improperly reduced and the managers responsible; and
- whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.
If an “actual practice” is found, the exemption is lost during the time period of the deductions for employees in the same job classification working for the same managers responsible for the improper deductions. Isolated or inadvertent improper deductions will not result in loss of the exemption if the employer reimburses the employee for the improper deductions.
d. FLSA Safe Harbor for Exempt Employees.
Even if an isolated or inadvertent improper deduction is made from an exempt employee’s designated amount of pay, the exemption is not lost if an employer:
(1) has a clearly communicated policy prohibiting improper deductions and including a complaint mechanism,
(2) reimburses employees for any improper deductions, and
(3) makes a good faith commitment to comply in the future.
If the employer has a clearly communicated policy, the employer will not lose the exemption for any employees unless the employer willfully violates the policy by continuing the improper deductions after receiving employee complaints.
See the ADDENDUM for a sample Safe Harbor for Exempt Employees provision. Practitioners should check their state laws before modifying for their use.
6. Standard Duties Tests.
If an employee meets both the Salary Level and Salary Basis tests, the employee may be exempt if s/he meets the Standards Duties Test on the Executive, Administrative, or Professional Exemptions.
a. Executive Exemption.
The Executive Exemption may be available if the employee:
- regularly supervises two or more other employees, and also
- has management as the primary duty of the position, and also,
- has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).
Supervision means what it implies. The supervision must be a regular part of the employee’s job, and must be of other employees. Supervision of non-employees does not meet the standard. The “two employees” requirement may be met by supervising two full-time employees or the equivalent number of part-time employees. (Two half-time employees equal one full-time employee.)
“Mere supervision” is not sufficient. In addition, to qualify for the executive exemption, the employee must have “management” as the “primary duty” of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):
- interviewing, selecting, and training employees;
- setting rates of pay and hours of work;
- maintaining production or sales records (beyond the merely clerical);
- appraising productivity; handling employee grievances or complaints, or disciplining employees;
- determining work techniques;
- planning the work;
- apportioning work among employees;
- determining the types of equipment to be used in performing work, or materials needed;
- planning budgets for work;
- monitoring work for legal or regulatory compliance;
- providing for safety and security of the workplace.
Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A “rule of thumb” is to determine if the employee is “in charge” of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the caller asked for “the boss.” Typically, only one employee is “in charge” at any particular time. Thus, for example, if a “sergeant” and a “lieutenant” are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is “in charge” during that time.
An employee may qualify as performing executive job duties even if s/he performs a variety of “regular” job duties as well. For example, the night manager at a fast food restaurant may in reality spend most of the shift preparing food and serving customers. S/he is, however, still “the boss” even when not actually engaged in “active” bossing duties. In the event that some “executive” decisions are required, s/he is there to make them, and this is sufficient.
The final requirement for the executive exemption is that the employee has genuine input into personnel matters. This does not require that the employee be the final decision maker on such matters, but rather that the employee’s input is given “particular weight.” Usually, it will mean that making personnel recommendations is part of the employee’s normal job duties, that the employee makes these kinds of recommendations frequently enough to be a “real” part of the job, and that higher management takes the employee’s personnel suggestions or recommendations
seriously.
b. Administrative Exemption.
The most difficult exemption to apply is to determine if an employee’s “administrative” job duties qualify the employee for the administrative exemption.
The Regulatory definition provides that exempt administrative job duties are
(a) office or nonmanual work, which is
(b) directly related to management or general business operations of the employer or the employer’s customers, and
(c) a primary component of which involves the exercise of independent judgment and discretion about
(d) matters of significance.
The administrative exemption is designed for relatively high-level employees whose main job is to “keep the business running.” A useful rule of thumb is to distinguish administrative employees from “operational” or “production” employees. Employees who make what the business sells are not administrative employees. Administrative employees provide “support” to the operational or production employees. They are “staff” rather than “line” employees. Examples of administrative functions include labor relations and personnel (human resources employees), payroll and finance (including budgeting and benefits management), records maintenance, accounting and tax, marketing and advertising (as differentiated from direct sales), quality control, public relations (including shareholder or investment relations, and government relations), legal and regulatory compliance, and some computer-related jobs (such as network, internet and database administration).
To be exempt under the administrative exemption, the “staff” or “support” work must be office or nonmanual, and must be for matters of significance. Clerical employees perform office or nonmanual support work but are not administratively exempt. Nor is administrative work exempt just because it is financially important, in the sense that the employer would experience financial losses if the employee fails to perform competently. Administratively exempt work typically involves the exercise of discretion and judgment, with the authority to make independent decisions on matters which affect the business as a whole or a significant part of it.
Factors to consider determining if the administrative exemption applies are:
- whether the employee has the authority to formulate or interpret company policies;
- how major the employee’s assignments are in relation to the overall business operations of the enterprise (buying paper clips versus buying a fleet of delivery vehicles, for example);
- whether the employee has the authority to commit the employer in matters which have significant financial impact;
- whether the employee has the authority to deviate from company policy without prior approval.
An example of administratively exempt work could be the buyer for a department store. S/he performs office or nonmanual work and is not engaged in production or sales. The job involves work which is necessary to the overall operation of the store — selecting merchandize to be ordered as inventory. It is important work, since having the right inventory (and the right amount of inventory) is crucial to the overall well-being of the store’s business. It involves the exercise of a good deal of important judgment and discretion, since it is up to the buyer to select items which will sell in sufficient quantity and at sufficient margins to be profitable.
Other examples of administratively exempt employees might be planners and true administrative assistants (as differentiated from secretaries with fancy titles). Bookkeepers, “gal Fridays,” and most employees who operate machines are not administratively exempt.
Merely clerical work may be administrative, but it is not exempt. Most secretaries, for example, may accurately be said to be performing administrative work, but their jobs are not usually exempt. Similarly, filing, filling out forms and preparing routine reports, answering telephones, making travel arrangements, working on customer “help desks,” and similar jobs are not likely to be high-level enough to be administratively exempt. Many clerical workers do in fact exercise some discretion and judgment in their jobs. However, to “count” the exercise of judgment and discretion must be about matters of considerable importance to the operation of the enterprise as a whole.
Routinely ordering supplies (and even selecting which vendor to buy supplies from) is not likely to be considered high- enough to qualify the employee for administratively exempt status. There is no “bright line.” Some secretaries may indeed be high-level, administratively exempt employees (for example, the secretary to the CEO who really does “run his life”), and while some employees with fancy titles (e.g., “administrative assistant”) may really be performing nonexempt clerical duties.
c. Professional Exemption.
The job duties of the traditional “learned professions” are exempt. These include lawyers, doctors, dentists, teachers, architects, and clergy. Also included are registered nurses (but not LPNs), accountants (but not bookkeepers), engineers (who have engineering degrees or the equivalent and perform work of the sort usually performed by licensed professional engineers), actuaries, scientists (but not technicians), pharmacists, and other employees who perform work requiring “advanced knowledge” similar to that historically associated with the traditional learned professions.
Professionally exempt work means work which is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Professionally exempt workers must have education beyond high school, and usually beyond college, in fields that are distinguished from (more “academic” than) the mechanical arts or skilled trades. Advanced degrees are the most common measure of this, but are not absolutely necessary if an employee has attained a similar level of advanced education through other means (and perform essentially the same kind of work as similar employees who do have advanced degrees).
Some employees may also perform “creative professional” job duties which are exempt. This classification applies to jobs such as actors, musicians, composers, writers, cartoonists, and some journalists. It is meant to cover employees in these kinds of jobs whose work requires invention, imagination, originality or talent; who contribute a unique interpretation or analysis.
Identifying most professionally exempt employees is usually pretty straightforward and uncontroversial, but this is not always the case. Whether a journalist is professionally exempt, for example, or a commercial artist, will likely require careful analysis of just what the employee actually does.
B. Addressing Overtime Pay.
1. Does Federal Wage and Hour Law Apply or Not?
a. Employers subject to Federal Law.
In general, an employer will be subject to the FLSA if it has gross receipts of $500,000 or more annually. However, the practitioner should check the rules for a particular occupation to determine if the employment is subject to the FLSA.
b. Individual Employees subject to Federal law even if Employer is not.
Even if an employer as a whole is not subject to the FLSA, individual employees may be if they have duties that involve interstate commerce. Duties such as processing credit cards, using the Internet, or the telephone all involve interstate commerce.
c. The Minimum Wage Rate under the FLSA is the HIGHER of the State or Federal Minimum Wage.
The federal minimum wage for covered nonexempt employees is $7.25 per hour effective July 24, 2009. The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA). Many states also have minimum wage laws. In cases where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher of the two minimum wages.
d. What is “work?”
The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” (Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944)) Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.” (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)). The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place”. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)).
e. When is Overtime Due?
Under the FLSA overtime at 1 ½ times the employee’s normal rate of pay is required for each hour worked over 40 in a “workweek.”
2. Employer’s Obligation to Record
Every covered employer must keep certain records for each non-exempt worker. The Act requires no particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned. The law requires this information to be accurate. The following is a listing of the basic records that an employer must maintain:
- Employee’s full name and social security number.
- Address, including zip code.
- Birth date, if younger than 19.
- Sex and occupation.
- Time and day of week when employee’s workweek begins.
- Hours worked each day.
- Total hours worked each workweek.
- Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
- Regular hourly pay rate.
- Total daily or weekly straight-time earnings.
- Total overtime earnings for the workweek.
- All additions to or deductions from the employee’s wages.
- Total wages paid each pay period.
- Date of payment and the pay period covered by the payment.
3. Definition of the “Workweek” for each group of Non-Exempt Employees.
A “workweek” is a continuous period of 168 hours. It may begin any day of the week and any time of the day. However, once designated, the employer may not generally change the work week.
Thus, for example, an employer may have a work schedule of one week on- one week off with 12 hour days on the week on. If the employees work from 6:00 A.M. to 6:00 P.M. with paid breaks, they work 84 hours in the calendar week. However, the employer could designate the workweek to begin at noon on Wednesday. If the employer did so the employees would not have 44 hours of overtime, but would have 2 hours of overtime the first workweek and 2 hours of overtime the second “workweek and would not work from 6:00 PM on Saturday, have the next calendar week off and begin the next workweek at 6:00 AM the following Sunday.
4. “Work” Hours.
a. When does “work” begin?
As noted above, “work” generally begins when an employee is required to be “on the employer’s premises, on duty, or at a prescribed place of work. Some employers, interested in maximizing efficiency, attempt to indicate that work begins when an employee logs onto his or her computer, without taking the boot-up time into account. The employee is required to be present to start the computer, so that is generally when the workday will start as the employee is no longer able to use the time as s/he desires.
b. Engaged to Wait.
An employee, such as a hotel desk clerk, is “at work” s/he is required to be “on duty” and able to respond to customer requests. In such a case, the employee is engaged to wait, and is working, even if no customers are present and needing attention.
c. “Daily Wage” Issues.
In the oil and gas industry particularly, a custom has arisen where employees are hired at a “daily wage” which they will be paid regardless of the number of hours worked that day. This is not a defense to overtime if the employee works more than 40-hours in a workweek. For any workweek the employee works more than 40 hours the employee’s total earnings for the workweek is divided by the total number of hours worked to determine the regular hourly rate for that workweek. For each hour over 40 the employer must pay an additional amount equal to ½ of the calculated regular hourly rate for that workweek.
5. Rest and Meal Periods.
An employer should designate in its handbook when the workday starts and ends. Breaks of less than 20 minutes must generally be paid. Breaks of 20 minutes or more may be unpaid IF the employee is relieved of all work duties. An employer should consider rules that require unpaid breaks to be taken in a designated area away from the employees work station. Too often, employers allow employees to take their unpaid breaks at their work stations only to later find that they must pay for the break, plus liquidated damages, statutory penalties, and attorney’s fees because the employees were not relieved of all work duties for the unpaid break. The employer “suffered or permitted” the employee to work. Many class actions have involved this scenario.
6. Overtime.
Under the FLSA, “overtime” is any work time that the employer suffers or permits the employees to perform. Thus, a non-exempt employee “trying to catch” up on his or her work by staying after hours will cause the employer to pay overtime if the employee works over 40 hours.
To prevent overtime, the employer should have a rule that requires the advance approval of overtime hours; however, when an employee works non-approved overtime, the employer must still pay the overtime, but may discipline for the employee violating the rule requiring advance approval of the overtime. An employer who does not pay may find itself liable for the overtime, plus liquidated damages equal to the amount of the overtime, plus statutory penalties, plus attorney’s fees.
7. Comp Time for Non-Governmental Employees must be in same “Workweek”.
For non-governmental, private employers, comp time must be taken in the same workweek in which the additional time worked is incurred. Even if the employer pays on a bi-weekly or bi-monthly basis, the “comp time” must be taken in the same workweek. Attempting to shift the time into another workweek may subject the employer to overtime, liquidated damages, penalties, and attorneys’ fees.
C. Wage and Benefit Discussions Between Employees
As we saw in section 1, an employer commits an unfair labor practice under the National Labor Relations Act if it prohibits its employees from discussing their wages with each other. In addition, many states have similar laws prohibiting employers from restricting employees from discussing their wages.
D. When are Wages “Confidential Information”?
The privilege to keep wages confidential belongs to the employee. The employee can choose to self-disclose or not to other employees. The fact that the employer cannot prohibit discussion between employers does not mean an employee is required to disclose his wages to other employees. In addition, a growing number of jurisdictions are passing rules, ordinances, and laws that prohibit employers from asking about wage histories on application forms. Whenever people or entities request an employee’s wages or wage records, the employer should require the employee’s written authorization to release the records requested.
ADDENDUM
Sample Safe Harbor for Exempt Employees
The following language can be used in the Exempt Employee Handbook or the Exempt Employee Addendum to Employment Handbook:
It is our policy and practice to accurately compensate employees and to do so in compliance with all applicable state and federal laws. To ensure that you are paid properly and that no improper deductions are made, review your paychecks promptly to identify and to report all errors.
If you believe a mistake has occurred or if you have any question, please use the reporting procedure outlined below.
You will receive a salary which is intended to compensate you for all hours that you may work for the Company. This salary will be established at the time of hire or when you become classified as an exempt employee. While it may be subject to review and modification from time to time, such as during salary review times, the salary will be a predetermined amount that will not be subject to deductions for variations in the quantity or quality of the work you perform.
You will receive your full salary for any workweek in which work is performed. Under federal law, your salary is subject to certain deductions. For example, absent contrary state law requirements, your salary can be reduced for the following reasons in a workweek in which work was performed:
- Full day absences for personal reasons, including vacation.
- Full day absences for sickness or disability, since we have a sick day pay plan and short-term disability insurance plan.
- Full day disciplinary suspensions for infractions of safety rules of major significance (including those that could cause serious harm to others).
- Family and Medical Leave absences (either full or partial day absences).
- To offset amounts received as payment for jury and witness fees or military pay.
- Unpaid disciplinary suspensions of one or more full days for significant infractions of major workplace conduct rules set forth in written policies.
- The first or last week of employment in the event you work less than a full week.
Your salary also may be reduced for certain types of deductions, such as: your portion of health, dental or life insurance premiums; state, federal or local taxes, social security; or voluntary contributions to a 401(k) or pension plan. In any workweek in which you performed any work, your salary will not be reduced for any of the following reasons:
- Partial day absences for personal reasons, sickness or disability.
- Your absence because the facility is closed on a scheduled work day.
- Absences for jury duty, attendance as a witness, or military leave in any week in which you have performed any work.
- Any other deductions prohibited by state or federal law.
Please note: You will be required to use accrued vacation, personal or other forms of paid time off for full or partial day absences for personal reasons, sickness or disability. However, your salary will not be reduced for partial day absences if you do not have accrued paid time off (PTO).
To Report Violations of This Policy, Communicate Concerns, or Obtain More Information
If you have questions about deductions from your pay, please contact Human Resources immediately. If you believe your wages have been subject to any improper deductions you should report your concerns to a supervisor immediately. If a supervisor is unavailable or if you believe it would be inappropriate to contact that person (or if you have not received a prompt and fully acceptable reply within three business days), you should immediately Human Resources. If you have not received a satisfactory response within five (5) business days after reporting your concern to Human Resources and you are unsure who to contact to correct the problem, please contact _____________________ ___________________.
Every report will be fully investigated and corrective action will be taken, up to and including discharge of any employee(s) who violates this policy.
In addition, the Company will not allow any form of retaliation against individuals who report alleged violations of this policy or who cooperate in the Company’s investigation of such reports. Retaliation is unacceptable. Any form of retaliation in violation of this policy will result in disciplinary action, up to and including discharge.
[1] There are separate exemptions for employees working as computer professionals, as outside salesmen, and as companions, hired by a family (but not an outside agency) for its elderly or infirm family members. These exemptions are beyond the scope of this presentation.
[2] See generally, 29 C.F.R., Chapter V.
If you are interested in watching the webinar, here is a link to the seminar webpage: Employee Handbooks: Changes You Need to Make Now. The live webinar will take place on Monday, December 18, 2017.
By: Donald C. Erickson, MSBA Certified Labor and Employment Law Specialist, Fryberger, Buchanan, Smith and Frederick, P.A., 302 West Superior Street, Suite 700, Duluth, MN 55802, derickson@fryberger.com, Direct Line: 218-725-6852
Social Media Policies: Balancing Employer Needs with Employee Rights
