Category Archives: Wage and Hour Issues

“Long Term” Independent Contractors, Quirky Question # 86

Quirky Question # 86:

We run an insurance company.  Some members of our workforce are employees; some are independent contractors.  Admittedly, some of our independent contractors have held this status for some time.

We don’t pay our independent contractors overtime for their efforts – we really don’t even know how many hours they put in.  I’ve heard some rumors that some of our independent contractors are unhappy about this arrangement and are talking about suing us for unpaid overtime.  Does this present any risks to us? Answer→

Abusing PTO Policies, Quirky Question # 60

Quirky Question # 60:

We are having trouble managing exempt employees’ paid time off (PTO).  Our current policy allows new employees to begin earning PTO right away, with the potential to earn up to 120 hours of PTO per calendar year.  PTO that is earned but not used is paid out or carried over at the end of each calendar year.

The problem we are having is that certain exempt employees know that they only need to work for fifteen minutes or so to be paid for an entire day.  These employees will spend fifteen minutes or so “working” while out of the office for personal reasons.  As a result, at the end of the year, these employees tend to receive a larger payout / carry over than others even though they are out of the office just as much (if not more) than their fellow exempt employees.  What can we do to curb this problem?

[Quirky Question No. 60 is another one of our West Coast questions, this one posed to the lawyers in our firm’s Anchorage, Alaska office.  Wendy Leukema, who has addressed other Quirky Questions posed to her and her colleagues in Anchorage provides her analysis below.  Note that Wendy’s analysis is not dependent on statutory or common law unique to Alaska; rather, she analyzes this inquiry from the perspective of the federal statute now causing such anguish to employers and such joy to the plaintiffs’ employment bar, the FLSA.] Answer→

Blackberry Use and Overtime Pay, Quirky Question # 48

Quirky Question # 48:

The regular business hours for our IT Help Desk are 8:00 a.m. through 6:00 p.m., Monday through Friday.  Obviously, people sometimes need IT support outside those hours, and the four non-exempt employees who staff the Help Desk are issued BlackBerries to respond to e-mails and calls outside of regular business hours.

These employees were very happy to get BlackBerries.  They used to take turns working late one or two nights a week – now they can monitor Help Desk calls and e-mails while going about their “real lives” outside of work.  Our approach seems to be working since I have received positive feedback from our staff that the IT personnel have helped them at a moment’s notice, even at unusual hours (one person reported that she recently received assistance at 2:00 a.m.; another workaholic described how helpful the IT folks were on Christmas day).

Since these are non-exempt employees, should I be worried that we are exposing the company to liability under the FLSA?  We’ve made clear to them that they should report any time they spend responding to Help Desk issues outside their regular work hours.  Is that enough to minimize any risks? Answer→

Donning and Doffing, Quirky Question # 28

Quirky Question # 28:

Our company has a manufacturing facility that has several product assembly lines.  Most of our production employees are required to wear basic smocks, hardhats, safety glasses, earplugs and gloves.  When the employees enter the building prior to their shift, they retrieve and put on their gear, then walk to their assigned production area.  At the end of the shift, they turn in their gear at a central location for cleaning.

Lately, a number of employees have complained that because of lengthy lines to obtain equipment, and the distance between the equipment room and the production floor, they have to arrive a work as much as 15-30 minutes before the start of their shift to ensure that they have enough time to get and put on their gear, and get to the production floor, by the pre-determined line start time.  Similar complaints have been made about the amount of time the employees spend waiting in line to turn in gear at the end of their shifts.  We have always paid our production employees on a “line-time” basis; in other words, they get paid from the time the production line starts at the beginning of the shift until it stops at the end of the shift (excluding one-half hour they take for lunch). The employees have asked us to add 30 minutes to their compensated shift time – 15 minutes at the beginning and 15 minutes at the end of each shift – so that they get paid for the time spent obtaining and putting on their gear, and turning it in at the end of the day.  Do we have to pay employees for this pre-shift and post-shift time?

[When I get a question like yours, I walk down the hall to see my partner, Jim Kremer. Jim, a 1987 graduate of Moorhead State University and a 1990 graduate of Georgetown University Law Center, is an expert on these issues. Jim’s resume can be viewed at www.dorsey.com and he can be reached by email at kremer.james@dorsey.com. Since Jim is far more knowledgeable than I regarding these kinds of issues, I asked Jim to address your question. Jim’s analysis is set forth below.] Answer→

Responsibility for Employee Injury, Quirky Question # 25 (West Coast Questions)

Quirky Question # 25:

We own and operate glass container manufacturing plants around the country, including Seattle.  One of our employees resides in Pennsylvania, and regularly travels around the country to work as a foreman on glass furnace rebuilds.  This particular employee began working for us in the 1980s and worked exclusively for us for about five years.

Under the union contract, we pay for travel to and from the work location for all out-of-state foremen, and provide a per diem of $78 per day for every day they are employed on a project, regardless of whether they are scheduled to work.  We also provide employees with rental cars.

On a Sunday when he wasn’t scheduled to work, the employee foreman was walking across the street from his hotel to hear “Music in the Park” at a nearby location.  As he was crossing the street, he was hit by a car and badly injured.  He filed for workers’ compensation benefits.  Although we agree that this accident is a terrible tragedy, we do not think his injury is covered.  He wasn’t working at the time of the accident after all.  Should we dispute the claim? Answer→

Starting the Work Day, Quirky Question # 19

Quirky Question # 19:

Our company provides automobiles and vans to some of our employees who have to conduct product installations or repairs at customers’ work sites.  Some times these work sites are closer to the employees’ homes than is our central office; some times they are farther away.

Figuring that the distances roughly balance out between the shorter and longer trips, we start paying our employees when they arrive at the customers’ locations.  This approach also enables our employees to stop for coffee or food on the way to the job site without feeling that they are ripping us off.  A friend at another company recently told me that this approach may cause us problems down the road.

We have been doing this a long time without any employee complaints.  In fact, our installation and service employees like the fact that they can go directly to the customers’ locations rather than having to check in at the home office first.  Are we missing something important? Answer→