Here are six compensable time issues that every HR pro should know how to handle, courtesy of Grace Lee and Robert Friedman of Venable LLP.

Seminars and training

Non-exempt workers who attend a lecture, a seminar or a training program outside the office don’t have to be paid if the event meets the following criteria:

• attendance is voluntary
• attendance is outside the employee’s regular working hours
• the event is not directly related to staffers’ jobs, and
• staff members don’t perform any work during the event.

So when is training or a seminar “related to staffers’ jobs”? When it’s designed to help workers to handle their jobs more effectively.

Another hang-up: Workers who take courses or attend school after hours that’s not required don’t have to be paid either. That still holds true if the employer is covering part or all of the tuition.

Receptions and other social events

Happy hours, dinners, receptions — if non-exempt staffers are required to attend any of these, they have to be compensated for their time. That’s still the case even if they’re not doing any work during their time there.

The key to avoiding mistakes with these events: communication. Train managers not to pressure staff to attend events that aren’t mandatory. Otherwise, you’re on the hook for their time.

Work done while commuting

If non-exempt staff members are required to do work while getting to or returning from work — such as on a bus or train — those staffers must be paid.

Again, supervisors should be trained not to give work to employees that has to be completed outside the workplace.

Volunteer activities

For volunteer activities, the same principle holds true: Are employees required to be there? If workers are required to volunteer two hours at a book drive,that’s payable time, even if it’s outside work hours.

So when does volunteering actually not have to be paid? When the activity takes place outside of work hours and doesn’t involve the employee performing any work. 

Waiting time

Non-exempt employees who are waiting for an assignment must be paid if they can’t leave.

That guy playing solitaire while waiting for work? Pay him. That girl waiting for paperwork who’s reading a magazine? Pay her.

But if staffers are permitted to leave and come back in two hours, you don’t have to pay them — the employees can use

Time waiting for or receiving medical attention

If a worker is injured and receives medical attention at work or at the instruction of a supervisor during work hours, that employee has to be paid.

For example, if a supervisor tells an employee who isn’t feeling well to lie down for 15 minutes, you still owe them for that time.

If you fire a staffer for allegedly abusing leave and then turn out to be wrong, you can still win in court — if you meet this one requirement.

Tom Seeger, a network technician who worked for the same firm for nearly 30 years, suffered from a herniated lumbar disc and was approved for FMLA leave.

His doctor stated that he could do “no work,” including light duty. That meant, under his company’s policies, that he could receive paid disability leave while out on FMLA.

Four days later, two co-workers ran into a “seemingly unimpaired” Seeger with his wife at Oktoberfest in downtown Cincinnati. One of those colleagues, knowing Seeger was on paid disability leave, alerted HR.

Seeger admitted after the fact to walking 10 blocks and drinking one or two beers at the event.

The company conducted an investigation, including:

• taking sworn statements from the two employees who saw Seeger at Oktoberfest
• reviewing Seeger’s medical records, disability file and employment history
• consulting with the company’s registered nurse and manager of its medical department, and
• asking Seeger and his doctor to submit info relevant to why he was at Oktoberfest.

After reviewing the info, the company suspended Seeger and ultimately fired him for “disability fraud,” stating that he had “over-reported” his symptoms to avoid the part-time light-duty work that the company’s paid-leave policy called for.

Seeger sued, claiming retaliation for taking FMLA leave. He said that his doctor instructed him to take short walks and that he was most comfortable walking or standing — and that the company should be held liable for firing him for doing what his doctor prescribed.

But the court wasn’t having it.

The question, the court said, was not if Seeger actually committed fraud, but if the company “reasonably and honestly” believed that he did.

Based on the thoroughness of its investigation, the court said the company met was protected under the “honest belief rule”:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

Parsing out the ‘honest belief rule’

Know this: The “honest belief rule” will not protect you in every discrimination case.

This company won because it could prove that it believed a worker was abusing leave. Courts will hold firms to a similar high standard if they want to invoke the “honest belief rule.”

So what’s that look like? You’ll likely need two things:

• detailed, thorough documentation, and
• evidence.

Without those two things, it’s unlikely you’ll be able to claim you fired someone for the right reasons.

But if you have them, and you take an adverse employment action that turns out to be wrong, there’s a good chance you’ll be protected.

Cite: Seeger v. Cincinnati Bell Telephone Co. To read the full decision, go here.

Click here to read the free whitepaper!   

Click here to read the free whitepaper!   

Two competing medical issues

Angela Fries, an administrative assistant for a telemarketing company, was diagnosed with a number of medical conditions, including herpes and a bladder disease. Both conditions caused her great pain and discomfort.

On one particular Friday, Fries didn’t come to work, claiming that she was using the bathroom frequently and was in pain. Her issues got worse the next day, Saturday.

On Sunday, she went to the emergency room, where she had a catheter placed. A doctor found that her bladder condition had caused her pain on Friday and Saturday, and that her herpes was responsible for issues on Sunday and the following day, Monday. The doctor gave her a note saying she could return to work on Tuesday.

She texted her manager saying that she had a doctor’s note to miss work the following day, Monday. But her supervisor responded by saying she’d be fired if she didn’t come in.

Fries missed work on Monday, but she returned to the office the next day, Tuesday. The following day, Fries was called into a meeting with her supervisor and the company owner, and was told she was being suspended.

Fries responded by threatening to sue, and was subsequently fired. Her termination letter said that the company had planned on suspending her until she mentioned a lawsuit, at which point it was decided she should be fired.

Her issues were “temporally linked”

Fries filed suit, claiming FMLA interference and retaliation.

In court, the company argued that Fries didn’t qualify for leave because she didn’t have a “serious health condition” that lasted more than three days — her bladder issues caused her medical issues on Friday and Saturday, while her herpes caused her problems on Sunday and Monday.

The court acknowledged that each of Fries’ medical conditions, when taken alone, did not incapacitate her for more than three days.

But it still ruled in her favor. Other courts have found that two conditions, when taken together, can be “temporally linked” and “affect the same organ system.” Therefore, Fries’ problems met the definition of “serious medical condition.”

Looking at the overall effects of Fries’ medical issues — which is what firms should do when determining “serious health conditions” — the court said she was clearly covered.

As for her retaliation claim, the court ruled in Fries’ favor as well.

The company noted in its termination letter that Fries was going to be suspended until she threatened to sue. Only then was she fired.

That, plus testimony from the company owner that her threat was a “little bit” of the reason for her termination, was enough to sway the court in Fries’ favor.

The takeaway

Two lessons from this bizarre case:

• Don’t assume that absences of three days or less are not covered under FMLA. Despite what the regs say, staffers can still be protected under the law even if they’re not out for more than three days.
  So how can HR stay safe? If a staffer is suffering from multiple medical issues, try to determine if the conditions could be linked or if they’re affecting the same “organ system.” The focus should be on collective, negative effects of the medical issues.
  If it’s a possibility they’re linked, and all other requirements under FMLA are met, it might be safer to grant leave, or seek counsel for advice.
• Don’t let someone go because they’ve threatened to sue. This one almost goes without saying, but this company doubled its legal issues by firing Fries for threatening to sue — and mentioning it as part of the reason in her termination letter. Unless you have a non-discriminatory reason for firing someone, don’t do it — no matter what threats of legal action an employee might make.

Cite: Fries v. TRI Marketing Corportation. To read the full decision, go here.

Wage-and-hour complaints are on the increase — causing companies more trouble and costing them more money than in recent years.

Employers settled nearly 110 wage-and-hour cases in 2011, more than double the 40 settlements in 2007 and 2008.

Worse: The majority of settlements were substantial – between $1 million and $2.5 million.

That’s according to a National Economic Research Associates report entitled Trends in Wage and Hour Settlements: 2011 Update.

OT claims and allegations about missed breaks were the most common issues in 2011.

And over half of the settlement dollars in the past five years have come from two industries – retail and financial services/insurance.

Two giant settlements

And if you don’t think the NERA figures are impressive enough, take a look at two recent wage-and-hour settlements:

Review website Yelp recently settled a class action suit after nearly 1,000 account execs claimed the company misclassified them as exempt and failed to pay them overtime. Final cost: $1.25 million.
And that was chump change compared to what happened to Wal-Mart. The retail outlet allegedly misclassified current and former vision center managers as exempt, failing to pay them overtime.
The company agreed to pay $5.29 million – $4.6 million in OT and $463,816 in civil monetary damages.

The Password Protection Act of 2012 (PPA) has been introduced in both the House and the Senate in an effort to keep employers from requiring prospective — and current — employees to hand over personal info, such as passwords for social media sites like Facebook, Twitter and LinkedIn.

The PPA would also keep employers from accessing info on any computer that isn’t owned or controlled by the employee. That includes things like private email accounts, smartphones and photo-sharing websites.

The PPA was introduced in the Senate by Sen. Richard Blumenthal (D, Conn.)  along with the help of a number of co-sponsors. In the House, an identical companion bill was introduced by Rep. Ed Perlmutter (D, CO) and Rep. Martin Heinrich (D, NM).

Here are some of the highlights of what the PPA would do:

• Prohibit employers from forcing prospective or current employees to provide access to their own private account as a condition of employment
• Forbid companies from discriminating or retaliating against a prospective/current employee because he or she refuses to provide access to a password-protected account, and
• Prohibit adverse employment-related actions as a consequence of an employee’s failure to provide access to their private accounts.

However, the bill would allow employers to: permit  social networking with the office on a voluntary basis; set policies for employer-operated computer systems; and hold workers accountable for stealing data from their employers.

Companies that violate the PPA could be subject to financial penalties.

To view the full text of the proposed legislation, click.

We’ll keep you posted on the outcome of the bill.

Was there really ever a time when people felt loyal to their employers? And is loyalty actually what you’re looking for?

Everybody’s heard the talk about how loyalty has vanished from the employment relationship — on both sides. Back in the day, the narrative goes, employers treated workers like family, and there was a bond between management and workers that went beyond day-to-day productivity.

In a recent post on Knowledge@Wharton, the blog of the Wharton School of Business at the University of Pennsylvania, several professors commented on the state of employee attitudes today.

Management professor Adam Cobb says it’s all about the power:

“When you are talking about loyalty in the workplace, you have to think about it as a reciprocal exchange,” he says. “My loyalty to the firm is contingent on my firm’s loyalty to me.

“But there is one party in that exchange which has tremendously more power, and that is the firm.”

Cobb sees the 1980s as the beginning of the end for worker loyalty: “You started to see healthy firms laying off workers, mainly for shareholder value.” Health insurance costs started to be shifted to employees; pension funds shuttered in favor of 401(k) plans.

“The trend was toward having the risks be borne by workers instead of firms,” Cobb said. “If I’m an employee, that’s a signal to me that I’m not going to let firms control my career.”

Where does their loyalty really lie?

Management professor Matthew Bidwill notes that “there is less a sense that your organization is going to look after you in the way that it used to — which would lead you to expect a reduction in loyalty as well.”

But here’s where he veers off the traditional view: Bidwill’s not sure employees were ever all that loyal to their organizations, no matter what the economic climate.

“Employees are often more loyal to those around them — their manager, their colleagues, maybe their clients. These employees have a sense of professionalism — and loyalty — that relates to the work they do more than to the company.”

Bingo: There’s the opportunity for employers to strengthen their relationship with workers.

Loyalty vs. engagement

It’s pretty clear: In today’s workplace, loyalty and engagement are two different things.

Study after study has shown what makes people stay with their current employer. A checklist:

• interesting, challenging work
• opportunities for advancement and learning
• collegial workforce
• fair compensation
• a respected manager
• recognition for accomplishment
• feeling a valued member of a team
• a substantial benefits package
• the feeling their work “makes a difference,” and
• overall pride in the company’s mission and its products.

Loyalty doesn’t seem to play a very big role on that wish list.

What your managers can do

There’s certainly no dearth of opinions about how managers motivate, nurture and reward employees — and make them want to stick around.

But many of these theories stress the nuts and bolts of manager behavior – as in, “you need to praise at least three employees in your department every day.”

That approach tends to overlook the key issue: What do employees want from their job on an emotional level?

Here’s a rundown of the things the experts say resonate most with employees — and make them want to stick around:

• Clear expectations. Pretty simple: Workers want to know exactly what they’re responsible for, and what they’ll be judged on.
• A sense of control. Employees aren’t robots. They need to feel they have the power to decide how their jobs can be completed — and the freedom to suggest how tasks can be simplified or streamlined.
• Feeling they’re “in the loop.” Employees not only wish to know – and have input on – what’s going on in their department, but what’s happening in the business as a whole.
  And they want to be secure in their understanding of how what they do on a day-to-day basis fits into the overall operation — now and in the future.
• Room to grow. These include potential promotions, extra training, learning new skills and the possibility of using those new skills in a different area of the company.
• Recognition. Everyone wants to believe their extra effort won’t go unnoticed — or unrewarded.
• Leadership. Employees want to be led by people they trust. And the people they trust are those who value workers’ contributions, recognize and accept differences in people and act with employees’ best interests in mind.

Click here to read the free whitepaper!   

A jury in Missouri has awarded a Muslim woman $5 million after she filed suit against her company, claiming religious bias.

Susann Bashir worked as a fiber optics network builder for AT&T for 10 years, and was commended for her good work in the company’s newsletter.

But after she converted to Islam, she said she endured years of daily harassment:

• Colleagues called her “towelhead” and a terrorist
• Workers referred to her hijab as “that thing on her head”
• Bible verses were left on her desk, and
• Employees asked if she was going to blow up the building.

Bashir said she called an employee help line and requested sensitivity training for her co-workers, but nothing was done.

So Bashir complained to the Equal Employment Opportunity Commission (EEOC), which began investigating her complaint.

That’s when the harassment hit a breaking point, culminating in her manager snatching her scarf off and exposing her head and hair — considered a “private part” for Muslim women — during a routine meeting.

Bashir asked that she be transferred or that her manager be removed, but neither happened. She said she was so stressed that she couldn’t return to work, and was subsequently fired.

The EEOC sued on her behalf, and a jury ruled in her favor, awarding her $5 million – the largest jury verdict for a workplace religious discrimination case in Missouri history. (The award will likely be less — Missouri caps such awards at five times the actual damage, plus attorney fees.)

In addition, the jury awarded her $120,000 in lost wages and other damages.

Previously, the largest jury verdict for a religious bias case came in 2009, when an Arab-American won $811,949 in a case against the Missouri Department of natural Resources.