Posted on March 21, 2014

Are You Compliant with Federal Labor Laws? Q&A with an Employment Attorney

How confident are you that your organization is compliant with federal labor laws? In a recent webinar, labor and employment lawyer Seth Briskin answered four common questions about this complex topic.

Question: If you find that you have misclassified an exempt or nonexempt employee, do you have to notify the employee when you make the adjustment to their classification?

Answer: When you determine that you have misclassified, the benefit to fixing it as soon as possible is very clear, because as soon as you fix it, the less amount of time you will be in violation. … Typically what I will try to do is to not focus on the exemption issue quite as much but to make it part of a general rollout of new policies, such as a brand new handbook, for instance. One of the things that we will change in the new handbook will be exemptions and classifications. Perhaps we’ll have employees sign new agreements at that time. It doesn’t shine a light so much on the classification issues, so much as it is a revamping or an updating of all the employer’s policies. … That said, playing “hide the ball” is what gets you in trouble. So notifying the employee, you can play a great game, and that is the “Blame the Lawyer” game. Say that, “We have inadvertently not classified some of our employees properly and we’re trying to fix that right now. Our labor attorney has notified us that this is the way we should do it going forward … and here are the new terms or the new job description or the new employment agreement that we’re looking to sign.”

Q: Would kitchen staff be considered a tipped employee? Our managers would like to begin tipping our cooks and dishwashers.

A: My kneejerk reaction is no. Kitchen staff and back-of-the house are not typically involved in tipped type work, so I would guess the Department of Labor would not have a very good time with that, much as they didn’t enjoy the use of bouncers in the tip pool.

Q: What if hourly team members are not required to check e-mail via their phone, tablets, etc., but they choose to? Is the employer still subject to compensate their time checking e-mail after they have clocked out?

A: This is a very difficult area to police. That said, memory is a very funny thing, and that’s why most lawyers are fans of documents, and documents will generally get the nod over people’s memories. You want your policies to be very clear that they are not to do that kind of work off hours without reporting their time. It’s very dependent on the type of work they’re doing and whether that work is truly of benefit to the employer. Making clear that the employees are not allowed to do it—any efforts to do that will be deemed voluntary and not compensated. … Through good policy-writing and training, I think you can eliminate a lot of the risk.

Q: If a non-exempt employee works four hours on a Saturday once per month, are we able to give them four hours off during the week to avoid overtime?

A: That’s the classic “comp time” question, and the answer is no. … If your work week is a Monday-Sunday work week or a Sunday-Saturday work week as many are, and you’ve got employees working 40 hours Monday through Friday and then they’re working four hours on a Saturday, that is four hours of overtime under the law, and you can’t trade out time, even time-and-a-half off, for pay, unless you’re in the public sector.


To hear more from Seth Briskin, watch his recent webinar.

Paycor provides a number of solutions that help organizations stay compliant with labor laws, including:

* Time and Attendance allows you to view and edit employees’ schedules, and generate custom reports to track hours worked and manage labor costs.
* The HR Support Center offers forms and templates for job descriptions, policies and employee handbooks so you never have to re-invent the wheel.
* Paycor’s human resource management application provides tools for training administration, document archiving and employee communication through a secure portal.

Get in touch with us to learn more about these solutions.


This content is for informational purposes only and should not be considered legal advice.