When employees spend time putting on protective gear, they now have to be paid.
Work clothes?
Employees are not ordinarily entitled to be paid for changing into work clothes. Under Fair Labor Standards Act § 203(o), time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time. Until last month, that exception also applied to protective gear. When workers put on their mesh aprons, plastic belly guards, mesh sleeves, plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts before a day processing meat, they were just getting dressed for work.
That has changed.
The exception for changing “clothes” no longer includes “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job,” according to the DOL.
Even though putting on a uniform is still not paid time, that activity may be enough to signal the start of the continuous working day. Anything the employee does after he changes into his work clothes—travel time or waiting, for example—may now be compensable under the FLSA.
You probably know that when someone leaves a job, he has to be paid for the time he worked. But he also has to be paid for the vacation days he earned, but didn’t take.
You may have a “use it or lose it” policy. Your manual probably encourages employees to take advantage of their well-earned time off because it expires at the end of the year. Until last summer, many employers believed they didn’t have to pay departing employees for such earned but unused vacation time.
Last June, the Supreme Judicial Court clarified the situation. Even if vacation time cannot accumulate from year-to-year, and the employer doesn’t consider the vacation time “earned,” vacation time that accrues during the year is “wages,” and must be paid in full at termination.
Employees may not be forced to use up paid vacation or sick time before taking unpaid maternity leave under the Massachusetts Maternity Leave Act.
The Massachusetts Maternity Leave Act (“MMLA”) guarantees full-time female employees eight weeks of maternity leave, when giving birth or adopting a child. This maternity leave is unpaid. An employee may choose to use vacation or sick time concurrently with her MMLA leave, but she may not be required to exhaust her paid sick and vacation time in order to use her MMLA leave.
On-the-job experience is a valuable thing. As a graduate of Northeastern University School of Law – a school known for its cooperative education program—no one knows this better than me. Unpaid internships allow students to get their feet wet. With the economic downturn, students recognize the value of adding experience –even unpaid—to their resumes. However, when an employer uses unpaid interns to supplement its regular workforce, that’s probably a wage-and-hour violation.
Many employers scrupulously comply with Federal and State overtime, minimum wage, and payment of wages laws –not to mention income tax withholding and worker’s compensation laws—but think nothing of allowing a college student to work alongside regular employees, for no wages at all. The college student might be quite content with receiving only experience in return. However, Federal Law doesn’t allow the parties to benefit from this voluntary relationship—at least in a for-profit context.
“Individuals who are ‘suffered or permitted’ to work must be compensated under the law for the services they perform for an employer.” Interns –even those receiving academic credit—must be treated as employees unless all of the following criteria are met:
The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship
Number four is the kicker. An employer may not derive any immediate advantage from the activities of the intern. That means no filing, no answering phones, no sorting mail. Nothing that actually helps the employer, in other words:
“If the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.”
If you’re still wondering whether that bright young person in your office is an intern or an employee, or want advice on having interns while still complying with the law, give us a call.
We are awash in a sea of microwaves. Some of these have cosmic origins. Others carry information from satellites, cell towers, and the routers and cell phones in the office. No one knows for sure whether ambient microwaves affect our health, and, if so, what the minimum dangerous level is. While the effects are being studied, the technology has simply not been around long enough for science to provide an answer.
A New Mexico man has sued his neighbor for aggravating his “electromagnetic sensitivities.” Arthur Firstenberg is seeking $530,000 in damages from Raphaela Monribot, claiming that her laptop computer, wireless router, i Phone, and dimmer switches cause him symptoms including nausea, vertigo and heart arrhythmia. We will be interested in what a jury thinks of these claims.
Meanwhile, if an employee complains of electromagnetic hypersensitivity, the employer’s analysis is no different from any other allegation of a disability. The first question is whether a disability exists. Does the condition interfere with the employee’s major life activities? This is a question to be addressed by medical professionals—the client’s doctor and your own advisors. Our nonscientific web search raises questions of whether this sensitivity is real or imagined.
The employee may really be suffering from headache, fatigue, tinnitus, dizziness, memory deficits, irregular heart beat, whole-body skin symptoms, or other symptoms—but it may not be your router that is causing them. “Sufferers and their support groups are convinced of a causal relationship with electromagnetic fields, but presently the scientific literature does not support such a link…. Double-blind experiments have been published, each of which has suggested that people who report electromagnetic hypersensitivity are unable to detect the presence of electromagnetic fields and are as likely to report ill health following a sham exposure, as they are following exposure to genuine electromagnetic fields.”
Even when an employer is skeptical about a claim of disability, we usually advise taking it seriously and entering into a dialog about what accommodation is reasonable. As most of the microwave radiation probably originates outside the office, it may impossible for the individual employer to stop it. The expense of shielding the office may be prohibitive. If it is practical to allow the employee to work from home, that is one possibility that can be considered. There are devices on the Internet that claim to block microwaves, although we are far from persuaded of their efficacy.
It’s possible there is nothing you can do. If the employee has a reasonable suggestion, you might want to hold your skepticism in check and wait for other parties to fight over whether this is a real disability or not.
If one of your employees smells like Teen Spirit, that may cause a headache for her coworkers—and for you if you don’t do something about it. Sensitivity to fragrances is increasingly recognized as a disability.
Susan McBride, a Detroit city planner, sued the city for discrimination after a coworker’s perfume caused health problems. (McBride v. City of Detroit, No. 07-12794.) The office-mate used strong perfume and plugged in a room deodorizer too. The smells overcame McBride to the point where she missed work and had to undergo medical treatment.
McBride asked the city to adopt a “no-scent” policy. The city declined and later argued that such a policy was not a reasonable accommodation, because it would present an undue hardship. The federal court disagreed. The policy she requested was based on one already in use at the Michigan Dept. of Information Technology. It did not prohibit all scents but stated that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.” McBride settled for $100,000.
Almost one in five people has a respiratory problem of some kind and can be affected by the chemicals used in creating fragrances. Common symptoms are headaches, breathing problems, and nausea.
Many employers—particularly medical offices—are adding no-scent policies to their employment manuals. Some of these are so strict that they prohibit flowers and magazines with perfumed inserts. Others, like the one McBride advocated, are more flexible.
You may not need a scent-free policy at all. You need to listen to your employees and take their requests for accommodation seriously. In a rock ballad it may be all right for the smell of cheap perfume to go on and on and on—but not at the office.
The Equal Employment Opportunity Commission plans to clarify the standards for defending against age discrimination claims. The new standards are being proposed to respond to the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005).
Before Smith, a plaintiff had to show that the employer intentionally treated him differently from other workers due to his age. Smith made it clear that an employer’s action could be discriminatory even if it merely had a disparate impact on older workers.
If Smith made the employee’s case easier to prove, it also lightened the employer’s burden. The Court said employers no longer need to show that their action was justified by a business necessity. They simply need to demonstrate that the action was reasonable and was based on something other than age.
The EEOC’s regulations haven’t kept up with that change. They still say an employment practice that has an adverse impact on older workers “can only be justified as a business necessity.” The proposed rule gets rid of that requirement. It says, “whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.”
The proposed rule sets up standards for determining whether the practice is reasonable. Those factors include: whether the employer took steps to assess the adverse impact of its employment practices on older workers; the extent to which older workers may be harmed by the policy; and whether “other options” were available to the employer.
When an employer has to show that “other options” weren’t available, it sounds suspiciously like the old “business necessity” standard. But the EEOC indicates the employer isn’t required to use the other options. Their availability is one factor to consider in deciding whether the action was reasonable.
It was just a year ago that the ADA Amendments Act (P.L. 110-325) became effective. If you’re already pretty familiar with the Americans with Disabilities Act, you may find that the ADA Amendments Act changes what you think you know about disability. The ADAAA was intended to:
Increase the number of Americans protected by the ADA.
Shift the focus from “Who is Disabled?” to “Was there reasonable accommodation?”
So, who counts as a “person with a disability” now? It starts with the same definition you may be familiar with: A person who has, or is regarded as having, an impairment that substantially limits one or more major life activities. But, that definition has become broader:
The words, “substantially limits one or more major life activities” can refer to the effects of almost any medical condition on the body. Bodily functions, for example, are major life activities in the act. An individual may appear to be healthy and able-bodied, but may still have impaired bodily or organ function.
“Mitigating measures,” except for ordinary eyeglasses and contact lenses, will NOT be considered in determining whether someone is disabled. If someone has a condition which is controlled by medication, use of devices, or other therapies –even if they are symptom-free— they may still have a disability.
Disabilities can come and go. The act says that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” So, people who have chronic medical conditions that only occasionally ‘flare up,’ may have a disability.
What does this mean to an employer?
Shift your focus to accommodation. If someone claims to be disabled, it is dangerous for you to decide whether or not that’s true. There is no list of medical conditions that are “disabilities.” A condition which may be disabling in one individual may not be in another. “Disabilities” now include conditions that are in remission, mitigated by medication or therapy, and conditions that do not outwardly affect an individual’s ability to function. You may wish to develop a procedure for addressing and documenting requests for reasonable accommodation.
–Nora Adukonis
The Two Minutes Series provides a broad overview of a legal issue, and is not intended to be a substitute for legal advice. If you need advice regarding ADA compliance, let us know.
Video résumés are a way for candidates to stand out in today’s tough job market. These videos, known as vesumés, express the candidate’s personality in a way that would not be possible on paper. Professionally produced vesumés are available for a few hundred dollars, and several websites have sprung up for the purpose of hosting them. YouTube already has over 16,000 video résumés, some tongue-in-cheek.
According to a survey by career publisher Vault, Inc., 89 percent of employers said they would watch a video résumé if they received one. But others worry that vesumés provide clues to a candidate’s race, gender, national origin, age, or handicap. Will watching these videos increase the risk of a discrimination suit?
If video resumes were required as part of the application process, certain groups might not have the funds or expertise to produce them and could effectively be excluded. But we know of no employers who have such a requirement. Rather, it is the candidate’s choice to supply a video resume and the candidate’s decision about what is said and how it is presented. If a candidate sends you a video, he is in a poor position to complain that you watched it.
“No one has yet filed a major lawsuit for discrimination by video résumé,” Time.com reported in 2007, and we haven’t found any either. That’s probably because whatever the video discloses about the job-seeker will be just as obvious in an interview. Even a paper résumé will usually indicate something about the candidate’s gender, age, and ethnic background. Naturally, these characteristics should never be part of the employment decision, and hiring procedures should include safeguards to prevent the appearance of discrimination.
it is not illegal for an employer to learn the race, gender or ethnicity of an individual prior to an interview. Of course, Title VII requires that all individuals be provided equal, nondiscriminatory treatment throughout the hiring process. If an employer representative observes a job seeker in a video clip, and either learns or surmises the person’s gender, race, or ethnicity, such knowledge could increase the risk of discrimination or the appearance of discrimination. Employers need to take care in training hiring officials and human resources staff about the appropriate responses when gender, race, or ethnicity are disclosed during recruitment. Video clips might be analogized to information on a résumé that clearly tells an individual’s race, such as, “President, Black Law Students Association.” In this situation, as with the video clip, the employer needs to focus on the person’s qualifications for the job.
The fact that a resume is on video, rather than paper, should not subject an employer to an increased risk of suit. In either case, the employer should be ready to show the hiring decision was based on the candidate’s qualifications and not on impermissible factors.
–Joel Rosen
Disclaimer—This office represents search firms, which may use or produce video resumes, and that relationship may affect our conclusion. This posting does not constitute legal advice, and you should obtain an opinion from your own lawyer.
Under the Massachusetts Maternity Leave Act, anyone who employs at least six people has to offer eight weeks of unpaid maternity leave. G.L. c. 149, § 105D. A woman who is giving birth or adopting a child must give at least two weeks’ notice prior to her anticipated date of departure. When she comes back, she must be restored to her position without any loss of seniority or benefits.
An employer said its employee could take off up to ten weeks if she had a caesarian section. She required the caesarian procedure and stayed out nine weeks. When she was ready to come back, there was no job for her, and she sued. The employer’s defense was that the employee had been out longer than the eight weeks the statute permitted.
They employee relied on an guideline of the Mass. Commission Against Discrimination, which states that any employer who wants to offer more than eight weeks’ leave—but isn’t guarantying the job beyond that time—has to tell employees so in writing. That guideline was binding on the employer. The employee ended up with a judgment of nearly $1.2 million.
The case is on appeal. According to the appellees’ brief, the question is whether employers “may rely on clear statutory provisions or whether they must instead abide by a vague, inconsistent, and poorly circulated “guideline” of the MCAD, which … does not have the force of law.” Global NAPS v. Awiszus, et al., SJC-10586, DAR-18231.
