Fortney is a co-founder of law firm Fortney & Scott, LLC in Washington, DC, and is editor of the Federal Employment Law Insider. He made his remarks about FWAs at SHRM’s Employment Law and Legislative Conference, held recently in the nation’s capitol.
Well-Meaning, But Dangerous
As an example of the problems with FWAs, says Fortney, there’s the Administration’s Middle-Class Task Force. One of its goals is improving work and family balance. One recommendation under consideration is to extend FMLA to employers with 25 or more employees and to expand the activities and circumstances that are covered by FMLA protections.
This is well-meaning, but it’s dangerous, says Fortney. Sure the leave is unpaid, but the work still has to be done. (And the smaller the company, the more likely it’s going to have to hire someone new to take over the duties of the person on leave.)
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Focus on caregivers by EEOC
The EEOC is focusing on caregiving issues, having recently held hearings on Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities, and having issued “Employer Best Practices for Workers with Caregiving Responsibilities” in 2009, says Fortney.
EEOC is recommending:
- Providing flexible work arrangements. (OK, if feasible, says Fortney.)
- If overtime required, allow advance scheduling. (OK, but there are emergencies, says Fortney.)
- Provide reasonable personal or sick leave even if not required by FMLA.
- Post employee schedules as early as possible.
As an indication of its earnestness, the EEOC says it is going to “find some cases to get people to pay attention,” Fortney says. Bottom line, for the moment, he adds, this is a hot topic for EEOC, so it should be a hot topic for employers.
Unfortunately, that’s not the only hot topic comp managers have to deal with.
Compensation—especially wage and hour—is never as “simple” as people believe. Let’s face it, comp’s never a picnic, and complying with the Fair Labor Standards Act (FLSA) is one of the most confusing and challenging things comp managers have to do. Even the most savvy practitioners get tripped up, and the law’s complex requirements can easily land you and your company on the wrong side of a lawsuit or DOL investigation.
In fact, there are more wage and hour lawsuits pending in the federal courts than all other employment claims combined.
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Wage & Hour Compliance: Practical Solutions for HR features:
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Why are aggressive attorneys so eager to file claims on behalf of employees? Because there’s so much money to be made:
- $4.75 million: Hospital in Thousand Oaks, California settles wage and hour lawsuit over miscalculated overtime pay and failing to compensate workers for missed meal and rest periods.
- $1.15 million: Las Vegas construction company to pay in back wages to 1,060 current and former employees.
- $976,327: New Mexico aerospace company settles with 900 employees who were routinely required to work through lunch breaks without compensation.
- $340,400: New Jersey convenience store to pay back wages and damages for violations of overtime and recordkeeping.
- $84,541: New York physical therapist agrees to pay 22 employees for minimum wage violations
- $30,000: Texas chain of four gas stations to pay their six hourly employees, again for recordkeeping and overtime violations.
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