Photo: dbking via Flickr (CC by 2.0)
Photo: dbking via Flickr (CC by 2.0)

The US Supreme Court on June 1, 2015 decided the highly publicized case of EEOC v. Abercrombie & Fitch Stores, Inc. (“Abercrombie”).  The case involved a job applicant, Samantha Elauf, who went to an interview at the popular retail store wearing a hijab or traditional Muslim head scarf.  The interviewing manager gave her high marks and recommended she be hired.  The district manager vetoed the decision because the wearing of the hijab conflicted with company’s dress code or “Look Policy.”  He stated that all headwear, religious or otherwise, was against the policy.  The company claimed that the employee never told them she needed an accommodation.  The Court addressed the question whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance or practice” only if the employer has actual knowledge that a religious accommodation is required.

The EEOC filed suit on behalf of Elauf and prevailed in the District Court, and Abercrombie appealed.  The Tenth Circuit Court of Appeals reversed the decision and awarded summary judgment to Abercrombie on the ground that the requirement to accommodate an employee’s religious beliefs attaches only when the employee specifically tells the employer of the need for the accommodation.

The Supreme Court, in a resounding 8-1 decision which can be read here in its entirety, reversed the Tenth Circuit and remanded the case back to the lower court.  The Court held that an applicant need only show that the need for an accommodation was a motivating factor in the employer’s decision not to hire in order to be actionable. According to the opinion authored by Justice Scalia, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightfor­ward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Even a facially neutral policy barring all employees from wearing headscarves does not exempt a company from providing a religious accommodation allowing some employees to wear headscarves for religious purposes.

Employers should take note of this case along with the 2014 guidance on religious garb in the workplace issued by the EEOC.  The EEOC makes clear that Title VII prohibits a wide variety of actions, including: treating an applicant or employee differently on the basis of religion in recruitment, hiring, promotion, benefits, training, job duties, termination or any other aspect of employment; denying reasonable accommodation for sincerely held religious practices, unless the accommodation constitutes an undue hardship; segregating employees on the basis of religious belief; allowing workplace harassment on the basis of religious belief; or retaliating against an employee who requests a religious accommodation.  The EEOC defines religious practice or belief very broadly. The definition encompasses not only traditional, organized religions, but any theistic and non-theistic moral or ethical beliefs, even if they are new, uncommon, not part of any formal organization, or followed by very few people.  Further, it does not matter if the practice or belief varies among different members of the same religion, or if an individual employee’s adherence to the belief changes over time.

The EEOC warns companies of the following:

  • An employee does not need to say any “magic words” when he or she requests an accommodation.  If it is obvious that a particular practice is religiously-motivated and conflicts with a work policy, the employer is obligated to provide an accommodation.
  • Employers must take their employee’s word that a particular practice or belief is “sincerely held.”
  • An accommodation must be granted unless the accommodation would present an undue hardship to the employer.
  • A grant of religious accommodation does not mean that the employer must grant other employees the same accommodation for non-religious reasons.
  • Customer preference is not a defense to a claim of discrimination.
  • Segregating the employee or moving him or her to another position that is not customer facing is likely not appropriate.
Photo: Courtney Carmody via Flickr (CC by 2.0).
Photo: Courtney Carmody via Flickr (CC by 2.0).

With the July 1 effective date for the new Massachusetts earned sick time law looming, the anxiety level of employers is on the rise.  Proposed regulations for implementing the law are yet to be finalized, and payroll providers are still working through how they will track earned time.  But, thanks to a temporary Safe Harbor announced by Attorney General Maura Healey today, some employers are breathing a sigh of relief … for the time being.

Under the new Safe Harbor, employers with a paid time off policy in place by May 1, 2015 that provides at least thirty hours of paid time off during the 2015 calendar year are deemed to be in compliance with the earned sick time law.  In order to remain in compliance, employers must observe the earned sick time law’s non-retaliation and non-interference provisions with respect to any paid time off taken by employers between July 1 and December 31.

The reprieve is only temporary, however.  Any employers operating under this Safe Harbor must adjust their paid time off policies to comply with the provisions of the earned sick time law.

Up until now, Attorney General Healey has denied business leaders’ requests to postpone the effective date of the earned sick time law.  As recently as May 5, Attorney General Healy reiterated her opposition to any delay in the implementation of the law.  As reported by the Boston Globe, the Attorney General’s reversal “is a reasonable step that gives all workers access to earned sick time by July 1 while giving businesses that have already been doing the right thing more time as they move into compliance with the new law.”

During the 2015 Granite State Human Resource Conference on April 28, 2015 in Manchester, N.H., we asked attendees that stopped by our booth to complete one of the following sentences about the industry:

  • H.R. Professionals Need…
  • I Love H.R. Because…
  • H.R. Helps Businesses…

To see what they came up with, click here.

In March of 2014 President Obama issued a Presidential Memorandum directing the Secretary of the United States Department of Labor (“DOL”) to update the FLSA regulations governing exemptions from overtime, the so-called White Collar Exemptions.  The existing regulations were viewed as out of date and needing overhaul.  Of particular concerns were the $455 per week salary threshold applicable to most of the tests and the administrative and executive exemptions.

On May 5, 2015, the Secretary announced that the proposed rule has been completed and sent to the Office of Management and Budget for review.  The Department’s blog post making the announcement can be viewed here.  The next step in the rulemaking process is a release of the rule for public comment. Often the comment period is brief, and employers and stakeholders should be on the lookout for an announcement.  These revisions are expected to have a significant impact on the pay structure for a large number of employees in office and administrative jobs.

Photo: Boudewijn Berends via Flickr (CC by 2.0)
Photo: Boudewijn Berends via Flickr (CC by 2.0)

Has your company considered offering your employees unlimited Paid Time Off (“PTO”)?  Many businesses challenged with wanting to recruit and retain the best talent are experimenting with providing new and arguably better benefits to employees.  PTO combines an employee’s vacation time, sick days, and other leave into one discretionary plan.  Employers will typically not question the reason the employee is out of work as the employee has the flexibility to use the time granted for whatever purpose it is needed or wanted. Unlimited PTO takes it one step further. Employees can take as much time off as needed without repercussion as long as the work gets done. The motivation is clear: build employee loyalty and morale; recruit and retain great talent. The bottom line is sensible: treat the employees you hire like adults and hold them accountable for the outcomes they deliver rather than the time they spend in the office.

So, what issues should a company consider when implementing this benefit?

  • Some companies report having a hard time getting employees with unlimited PTO to actually go on vacation. People like to know what is expected of them so employers should offer some direction about what is acceptable.
  • Communication and coordination is critical to make sure that the company’s business needs are met.  For example, everyone can’t take time off at once, and appropriate notice should be expected for planned absences.
  • Some employers report that employees who are single and childless perceive inequity in use of the benefit.  Management needs to communicate that PTO should be used for whatever personal needs require people to be out of work: vacation, care of elderly parents, mental health days to recharge, personal doctors’ appointments, etc.
  • Companies need to be mindful of the interplay with state and federal laws which govern time off: state paid sick leave policies, FMLA, parental leave and FLSA.
  • The transition to unlimited PTO will require addressing what will happen to unused but accrued time off. Will it be paid out? Will employees need to use it within a period of time?
  • Management needs to determine whether the culture of a company will support such a benefit. Does the company currently do a good job of managing and evaluating employees based on outcomes? Are there clear goals set for workers? Will long term employees accept the fact that new employees will be on the same footing from day one?
  • It is critically important to have a clear written policy setting out the company’s expectations of both employees and those who supervise them so that people are treated fairly and act as part of a working team.
  • Performance issues and issues of abuse of this privilege should be addressed quickly and with transparency.  Company morale depends upon it.

Unlimited PTO does not mean  that there are no rules .  In exchange for this benefit, employees must take responsibility to meet the goals set for them.  If success in your business is measured by sales, profits, client encounters or even billable hours, that is the criteria by which performance will need to be evaluated, and employees should have clear notice of the expectations.

 

Ever since Massachusetts voters approved the new Earned Sick Time Law last November, employers have been asking questions about how the law will be implemented, and what effect it will have on existing paid time off policies.  Some of these questions are finally being answered.  Last Friday, Attorney General Maura Healey filed draft regulations with the Secretary of State spelling out her proposal for how the technical details of the law will work.

Continue Reading Attorney General’s Proposed Regulations Provide Answers To Many Questions About Massachusetts Earned Sick Time Law

While the weather may not feel like it yet, summer will be here before long and businesses may be looking to hire youths under 18 years old. Youth labor laws were adopted by the federal government (FLSA) and states to protect children and generally prohibit minors from working excessive hours, operating unsafe machinery, and working in dangerous conditions. Please note that if your business is covered by Federal wage and hour law, the FLSA applies along with more restrictive rules limiting the number of hours a youth is allowed to work: http://www.dol.gov/dol/topic/youthlabor/enforcement.htm.

Photo: uros velickovic via Flickr (CC by 2.0)
Photo: uros velickovic via Flickr (CC by 2.0)

I’ve listed the most important NH youth employment laws as a reminder of their specificity and also of the fact that violations of youth employment laws come with statutory monetary penalties that cannot be waived by the NH DOL: if you are in violation, then you must pay.

Youth Employment Certificate.  

If you are employing a youth between the ages of 12-15, then this certificate must be on file at the business within 3 days of the youth’s first day of employment. Youths under 12 years old may not work except for his or her parents, grandparents, or guardian, or at “casual” work (employment of no more than 3 calendar days for any one employer) or in door-to-door newspaper delivery.

To get a Youth Employment Certificate, the youth should ask the employer to complete an Employer’s Request for Child Labor and then give it back to the youth to bring to his or her local school or superintendent’s office. Employer Request for Child Labor.  The School or superintendent’s office will issue the Youth Employment Certificate after it has:

(1) confirmed the age of the youth (birth certificate, passport, baptismal certificate, immigration record or a religious or official record bearing the youth’s age),

(2) reviewed employer’s request to ensure that the minor’s employment is permitted by law, and

(3) reviewed the student’s school record to ensure the student’s academic performance level has been met. The school then provides the Youth Employment Certificate to the youth who brings the completed form to his or her employer.  The school also provides a copy of the documentation to the NH Department of Labor.

A Youth Certificate is not required if the youth works for his or her parents, grandparents or guardian, is performing “casual” work, or is working as farm labor. While the definition of “casual” work is vague, it may be interpreted to include performing yard work for neighbors, for example.

If the youth is between the ages of 16-17, then the business must have on file at the business, on the first day of the youth’s employment, written permission by the parent or guardian stating that the youth is allowed to work. Parental Permission Form.

Hours of Work Restrictions.

In calculating the number of hours of employment, the business cannot use its own work week, but must use the statutory work week – Sunday through Saturday.

For youths aged between 12-15, they cannot be employed: during school hours, before 7am or after 9pm, more than 3 hours per day on school days, more than 8 hours per day on non-school days, more than 23 hours per week during school weeks, or more than 48 hours per week during non-school weeks.

For youths aged between 16-17 who are enrolled in school (including home schooled), they cannot be employed: more than 6 consecutive days nor more than 30 hours per week during the school calendar week (Sunday through Saturday), more than 6 consecutive days nor more than 48 hours per week during school vacation weeks or summer vacation (June 1st through Labor Day), more than 10 hours per day in manufacturing, more than 10 ¼ hours per day in manual or mechanical labor, more than 8 hours per night (if working at night).

For youths aged between 16-17 who are not enrolled in school, they cannot be employed: more than 10 hours per day nor more than 48 hours per week at manual or mechanical labor in a manufacturing establishment, more than 10 ¼ hours per day nor more than 54 hours per week at manual or mechanical labor in any other employment that is not exempt by statute, and night work is restricted to no more than 8 hours per shift and 48 hours per week.

Prohibited Occupations.

Youths aged between 14-15 are prohibited from working in: any manufacturing occupation, any mining occupation, processing occupation (such as filleting of fish, dressing poultry, cracking nuts or laundering by commercial laundry and dry cleaning), public messenger service, occupations in connection with warehousing and storage, communications and public utilities and construction. Also, youths in this age group cannot work, for example, around boilers or engine rooms, cooking (except at soda fountains, lunch counters, snack bars, or cafeteria serving counters) and baking, in freezers and meat coolers, or loading and unloading goods.

No youth can be employed in a “hazardous occupation” as defined by the FLSA: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.1.31&idno=29. Those hazardous occupations include, but are not limited to: driving or acting as outside helper on a motor vehicle, logging and sawmilling, operation of power-driven woodworking machines, work in slaughtering, meat packing and rendering establishments, work in roofing operation, work in places were alcoholic beverages are manufactured, packaged or sold (except in drug stores or retail food stores), and any work over 30 feet above floor, ground, or water level.

Penalties.

The penalty for violation of federal child labor law is up to a $10,000 civil penalty for each violation. The penalty for violation of N.H. youth employment laws can include a misdemeanor offense and may include an assessment of a civil penalty not to exceed $2,500 for each violation. Before embarking on hiring a youth this summer, be sure that you are clear as to the occupational and hourly restrictions to ensure that your business is in compliance with youth employment laws.

I recently attended a 2-day training program in Boston conducted by the Massachusetts Commission Against Discrimination (MCAD) called Conducting Internal Discrimination Complaint Investigations. This was a high quality training program that incorporated carefully thought out modules with practical exercises conducted by Rebecca Shuster, Director of Training at MCAD, and Attorney Judy S. Kalisker, Principal, Compliance Plus. While I have conducted discrimination investigations many times, this type of high quality investigation training is so hard to come by that it is worth spreading the word about it. Here are a few of my take-aways from the training:

1. Understand when the duty to investigate kicks in

Businesses should have handbooks that contain anti-discrimination policies that provide for an investigative process when they receive concerns from employees of discriminatory treatment. However, supervisors sometimes believe erroneously that only more serious concerns require investigating and do not investigate when they perceive a concern to be trivial. In order to protect the interests of the business, supervisors are well advised to look into all concerns raised by employees. While every concern does not necessarily require a week-long investigation, the company must look into issues in order to understand whether the employee has been discriminated against or whether a company policy has been violated. Further, without looking into an employee’s concerns, the company will not know whether other employees are also impacted and could lose a defense to a future claim of discrimination. Once deciding that an investigation should be done, another important consideration is deciding who will conduct it.

2. Decide who will conduct the investigation

If an investigation is to have any value, it must be conducted by someone who has been trained in conducting investigations or has experience doing so. The credibility of the investigation findings and results may be discredited if the investigator is not qualified. Every investigator must be prepared that his or her investigation process and findings will be closely scrutinized. Also, if the person accused of the discriminatory, harassing or retaliatory conduct is a high level or senior manager, the company should strongly consider hiring an investigator outside of the organization in order to protect the integrity of the investigation. The outside investigator could be its employment counsel or a third party trained in conducting investigations. If a third party is hired, the company should consider utilizing its employment counsel as the liaison with the investigator to be able to keep conversations with the third party confidential. However, it is very unlikely that the company will want to keep the investigative report itself confidential in the context of litigation. These are consideration that must be discussed and analyzed prior to beginning the investigation. Once the investigator has been selected, it is worth taking the time to plan the investigation.

3. Take the time to plan the investigation

While there are sometimes circumstances when investigators want to begin the investigation immediately, most of the time the investigator can take 24 hours to thoughtfully plan his or her course of action. The investigator must confirm the scope of the investigation by determining the legal issues being looked into, the witnesses to be interviewed (and order of witness interviews) and the documents to be reviewed. While the scope of the investigation may change during the investigation, it should not broaden into encompassing every area of employment dissatisfaction that the employee has. The investigator must understand the scope of the investigation and tactfully manage its parameters. In order to successfully do that, the investigator must have experience and skills.

4. Conduct interviews – skill and practice required

One of the objectives in conducting an investigation is to find out what is going on in the workplace. To find out that type of sensitive information and assess its accuracy requires strong interpersonal skills. It requires the ability to listen and to adapt the interview questions as information is disclosed. Most importantly, it involves establishing trust with witnesses so that they are comfortable disclosing what is often very personal information. Not everyone in a supervisory position possesses the skills necessary to conduct a quality investigation. The company should take the time to identify management personnel who do possess those qualities and who will be responsible for conducting investigations.

5. Make findings of fact and recommendations – depending on the scope of the investigation

The investigator must understand from the outset whether he or she is just making findings of fact or is being asked to make recommendations based on the findings. Sometimes a company only wants an investigator to find facts and it will decide the appropriate action to be taken. Therefore, the investigator should understand exactly what he or she is being asked to do. Finally, the investigator’s findings are often captured in a report that is given to select company senior management for review and consideration.

The MCAD investigation training highlights the complexity involved in conducting investigations that requires thoughtful analysis. It is well worth taking the time to work through these issues since investigations do not just have, potentially, a legal impact on the company, but set the tone among the workforce as to how the company addresses concerns raised in the workplace.

This MCAD program is held in Boston and takes place once a year.  Read more about it here.

Employee Handbook - homemade by McLaneOn March 18, 2015, the General Counsel of the National Labor Relations Board (“NLRB”) issued a report setting out the NLRB’s view on employee handbook policy language.

Section 7 of the National Labor Relations Act, which is enforced by the NLRB, protects employees’ rights to engage in certain protected activities. As explained in the report, protected activities include:

  • Discussing wages, hours, and other terms and conditions of employment with fellow employees as well as with nonemployees such as union representatives.
  • Criticizing or protesting the employer’s labor policies or treatment of employees.
  • Arguing and debating among employees about unions, management, and terms and conditions of employment.
  • Communicating with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment.
  • Taking photographs and making recordings in furtherance of protected concerted activity.
  • Going on strike.
  • Engaging in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests.

The report clarifies what handbook language, in the NLRB’s view, violates employees’ Section 7 rights. Highlights of the report include the following:

Confidentiality Policy

A confidentiality policy violates the Act if it specifically prohibits employees from discussing the terms and conditions of their employment or reasonably would be read to prohibit such discussions. The scope of confidential information should be defined sufficiently to make clear that “confidential information” does not include information relating to the terms and conditions of employment.

Policies Regulating Employee Conduct Toward the Company and Supervisors

Rules that specifically ban or reasonably would be interpreted to ban employees from criticizing the employer or management are unlawful, absent sufficient clarification or context. An employer may lawfully require employees to be respectful and professional to individuals other than the employer or management. (e.g., coworkers, clients, competitors, and members of the public).

Policies Regulating Employee Conduct Towards Coworkers

Language that broadly prohibits discussions among employees of negative, inappropriate, controversial, or otherwise “inflammatory” subjects may be unlawfully overbroad absent clarification of the intent of the policy.

Policies Regulating Employee Communication with Third Parties

A handbook rule which prohibits or reasonably would be interpreted to prohibit employees from discussing terms and conditions of employment with third parties would be considered unlawful.

Policies Regulating Employee Use of Company Logos, Copyrights, and Trademarks

An employer may not prohibit employees’ use of the employer’s logos, copyrights, or trademarks for non-commercial purposes. While acknowledging that an employer’s intellectual property rights are protected by law, the NLRB takes the position that “[e]mployer proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.”

Policies Restricting Photography and Recording

A total ban on employees’ right to take photographs or make recordings, including the use or possession of personal cameras or recording devices, is unlawful. Language should appropriately limit the scope of the prohibition so that it would not be read to prohibit taking photographs or making recordings in furtherance of protected concerted activities.

Policies Restricting Employees from Leaving Work

A rule restricting employees from leaving work is unlawful if it contains language that prohibits or would be read to prohibit protected strike actions and walkouts.

Conflict-of-Interest Policies

A conflict-of-interest rule is unlawful when it prohibits or reasonably would be read to prohibit employees from engaging in concerted activity to improve their terms and conditions of employment. This right is protected even if the activity is in conflict with the employer’s interests, such as protesting in front of the employer’s building, organizing a boycott, and soliciting support for a union while on non-work time.

The key to making sure your employee handbook will pass muster if reviewed by the NLRB is to avoid using overly broad language and to provide sufficient clarification and explanation. The NLRB will examine lawfulness of a handbook policy based on what it says as well as how it would reasonably be read by employees. Employers are encouraged to review the General Counsel’s report. It offers examples of language that the NLRB has found lawful and unlawful. It is also recommended to have legal counsel review the handbook to ensure compliance with the Act.

Every year the New Hampshire Department of Labor issues a list of the top ten violations found by its inspection division in the previous year.  Remarkably, the list does not change much from year to year.  The culprits move up and down and switch places, but the same mistakes seem to be made in perpetuity.

Photo: Sam Churchill via Flickr (CC by 2.0)
Photo: Sam Churchill via Flickr (CC by 2.0)

It is hard to know why.  Seminars, webinars, articles and blog posts like this by employment lawyers and human resources organizations are available on almost a daily basis.  The Department of Labor itself holds frequent informational sessions at convenient locations throughout the state.  Most of the laws and regulations have been in place for years, and even the oldest are frequently violated.

Why are employers having difficulty getting it right and which employers are they?  I don’t pretend to have the answers which is why I pose this as more of a rhetorical question.  Are the violators primarily those without professional human resources staff?  Not necessarily.  Are the companies with the most violations those who have in house employment counsel and HR in out of state locations, individuals who  might not have familiarity with NH laws?  Maybe some, but not all.  Are those responsible for compliance simply overwhelmed with their daily responsibilities such that technical compliance suffers?  Perhaps, but the risk of non-compliance is high.

Regardless, for those who need a refresher, here is 2014’s top ten list:

10.  Failure to Pay Minimum Wage for All Hours Worked.  This is unlikely to be the result of employers not knowing the minimum wage or intentionally paying less.  This violation is most likely to arise with employees who are paid a salary and treated as exempt when they should be paid by the hour, non-exempt inside sales employees paid by commission who don’t earn sufficient commissions in each week or even individuals improperly characterized as interns and paid little or nothing.

9.  Illegal Deductions from Wages.  There are very specific rules in RSA 275:48 and at Lab 803.02 regarding what can be deducted from wages.  Failure to comply is serious.  Deducting for the cost of damaged, lost or unreturned company equipment, for example, is prohibited.

8.  Illegal Employment of Workers Under 18 (not having proper paperwork, hours violations, hazardous work).  Youth employment violations are among the most serious in the eyes of the DOL.  Employers should be fully familiar with the requirements for appropriate documentation in advance of work commencing and the significant restrictions on what young workers can do and when.

7.  Failure to Pay 2 Hours Minimum Pay at the Regular Rate of Pay on a Given Day That an Employee Reports to Work at the Request of the Employer.   In this past winter of snow days, power outages and early closings, this is likely to have  been a huge issue.  Employees scheduled to work who are sent home by the employer must be paid for two hours.

6.  Failure to provide WRITTEN notice to Employees of Their Wage Rate, Pay Period, Pay Day and a Description of Fringe Benefits, Including any Changes.  Written notice is required; the notice must be signed by the employee whether using an offer letter or the form conveniently located on the DOL website.  A new written notice is required with every change.

5.  Failure to Secure and Maintain Worker’s Compensation Coverage and Misclassification of Employees.  This violation arises most commonly not from the occasional lapse of coverage due to error, but from failing to cover the proper people.  Businesses should take great care to make certain that they properly characterize individuals as employees rather than independent contractors or “consultants” unless they truly meet the established criteria.

4.  Employment of Undocumented Workers Prohibited.  During wage and hour inspections the DOL will review all documentation related to an employee’s authorization to work in the US.  Lack of properly completed documentation on file will result in civil penalties.

3.  Failure to Have a Written Safety Plan, Joint Loss Management Committee and Safety Summary Form.  Pursuant to RSA 281-A:64 companies which employ at least 15 workers are required to comply with these safety requirements.

2.  Failure to Keep an Accurate Record of all Hours Worked.  It is the responsibility of the employer to make certain that an accurate record of the time worked by every non-exempt employee is kept.  The DOL does not accept a compilation of hours; rather each employee must on each day record the time their day starts, when they clock out and back in from a meal break, and when they leave for the day. If employees fail to punch in and out, the employer must address the issue.

AND the Number One Labor Law Violation for 2014….

Failure to Pay all Wages Due for Hours Worked ….

A violation of RSA 275:43 can be found for any number of reasons:  docking an employee for a break of less than 20 minutes, failing to pay an employee who takes a lunch break but remains on call or continues to answer the phone, not paying hourly employees who answer emails and phone calls at night from home, not having permission to pay employees less often than weekly.   The list goes on, and the minefields are everywhere.

From time to time every employer should consider a self-audit of its payroll practices…before the DOL decides to pay a visit.