Un-“PAID” Is a Better Option

Last week the U.S. Department of Labor’s Wage and Hour Division (WHD) unveiled its new Payroll Audit Independent Determination (PAID) program to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standard Act (FLSA). Below you will find the highlights of the program and our advice and recommendations on compliance.

WHD will implement this “self-audit pilot program nationwide for approximately six months” to begin in April. At the end of the six month pilot period, WHD will determine whether to make the program permanent. In the meantime, as your team contemplates this opportunity, we recommend you keep WHD’s stated goal in mind: “To ensure that more employees receive the back wages they are owed – faster.”

All FLSA-covered employers are eligible to participate in the program on a voluntary basis. The program covers potential violations of the FLSA’s overtime and minimum wage requirements including, for example, violations based on alleged “off-the-clock” work; failures to pay overtime at one-and-one-half times the regular rate of pay;  misclassification of employees as exempt from the FLSA’s minimum wage; and overtime requirements.

There are some attractive elements to the program. It enables employers to expeditiously resolve inadvertent minimum wage and overtime violations without litigation (perhaps—see below), without the payment of liquidated damages, and without civil monetary penalties. That certainly sounds attractive but there is a catch or two or three… .

For many employers, the downside of this program will outweigh the upside. For example:

• This program does not require employees to surrender any rights.
• If an employee chooses not to accept back payment, the employee will not release any private right of action.
• If the employee chooses to accept the back payment, the employee will not grant a broad release of potential claims under the FLSA.
• By allowing employers to participate in the program, WHD does not waive its right to conduct any future investigations of the employer.
• The participating employer must pay 100% of the calculated back wages immediately, no exceptions.
• An employer’s DOL-supervised settlement under this program does not necessarily prevent state law wage claims.

All FLSA-covered employers nationwide confront the same critical question: Does the PAID program reduce risk or increase exposure for your company? Our experience tells us that many employers will be better off conducting their own Audit outside the PAID program and under the attorney/client protection. Certainly, it would be prudent for all employers to conduct an Audit of pay practices to assess compliance under the FLSA and state wage and hour laws. Our employment law crystal ball identified these issues a few years back and led us to develop our very popular FLSA Wage and Hour and Timekeeping Audit Service and our Exempt or Non-Exempt Positions Classification Service. You can achieve compliance without the PAID program pitfalls. Please let us know how we can help. www.foleylawpractice.com or call 508.548.4888

 

In some jurisdictions this blog post is regarded as Attorney advertisement.

Happy Memorial Day

Happy Memorial Day! For many, this is a day to honor fallen soldiers and also a time to get ready for summer.

Have you done the following?

• Sunscreen?
• Summer reading list?
• Pay Equity Audit?
• Midyear handbook and diagnostic workplace audit?

If you answered “No” to any one of these questions, we can help!  Read on.

SUNSCREEN

It is outside our wheelhouse but we do like to be helpful.  See the latest list from Consumer Reports. http://www.consumerreports.org/sun-protection/get-the-best-sun-protection/

PAY EQUITY

In 2016 alone, California, New York, Nebraska, Maryland and Massachusetts passed aggressive equal pay legislation. If you are not in this group, the EEOC’s proposed expansion to the EEO-1 reports means more pay data will be required from federal contractors and employers with more than 100 employees.

Do I Need to Buy More Software?

Absolutely not.  By now you may have seen software solicitations touting the importance of statistical analysis to comply with pay equity. Beware.  Sizes matters: unless an employer has a significant number of employees performing the same role and a statistically significant amount are women, a statistical analysis will not produce reliable results. Most of our clients should perform a cohort analysis, which better compares the factors affecting pay.

Why Should I Use Your Pay Equity Audit?  

By partnering with an attorney, the process is protected by the attorney-client privilege. Any pay equity found will be kept strictly confidential.  Moreover, in Massachusetts you create a rolling affirmative defense by conducting an evaluation of pay practices if it is completed within three years prior to the commencement of a wage discrimination claim. We have developed an effective and painless Pay Equity Audit to achieve compliance and create an affirmative defense.

Why Now? 

The effective date of the MA Pay Equity Law is July 1, 2018.  Many of you are planning for 2018 in your budgets and hiring. Include Pay Equity in that list to be compliant and create the rolling affirmative defense against any future claims.

SUMMER READING

Software slamming aside, Bill Gates is a pretty smart guy.  His summer reading list looks terrific.  Check it out!  https://www.gatesnotes.com/About-Bill-Gates/Summer-Books-2017?WT.mc_id=05_22_2017_10_SummerBooks2017_BG-media_&WT.tsrc=BGmedia

 

MIDYEAR HANDBOOK AND DIAGNOSTIC AUDIT

Probably not high on your reading list but terribly important is your employee handbook.  When is the last time you read it? We recommend that you review and update your handbook on an annual basis. Now is a particularly good time given the many local and state law updates.  Marijuana, equal pay, paid family leave, sick leave—many changes have taken place that are probably not properly addressed in your handbook.

Why Worry about the Handbook?

A well-crafted handbook serves many valuable purposes:

• Define the culture of your business
• Set expectations
• Inform employees of compensation, benefits and rules
• Provide a clear avenue for dispute resolution, a critical road map for staff

Your Handbook are a valuable tool for you and an important resource for employees.

 

What is the Diagnostic Audit?

The Risk Management Diagnostic Audit is a tool we have developed to allow you to identify and respond to the compliance risks at your workplace. This audit targets your organization’s unique vulnerability and provides action items to put you on the path to compliance.  Please check out our website or call 508-548-4888 for the steps and timelines for this popular service. http://www.foleylawpractice.com/diagnostic-compliance-audit.html

Enjoy the long weekend!

Contact us at 508-548-4888 or info@foleylawpractice.com

 

 

 

Pay Equity in Massachusetts – What Employers Need to Know Before the New Law Takes Effect July 1, 2018

 

Here’s What We Know:

• It is no secret that there is still a workplace wage gap between the genders.

• Prior to the passage of certain laws a little over five decades ago, female employees working full-time were earning on average only about sixty percent (60%) of the amount earned by their male counterparts.

• Progress has been made in closing the pay gap.

• According to the Economic Policy Institute, women are taking home 83 cents for every dollar earned by men.

• According to the Federal Department of Labor, pay equity for younger workers is near parity.

• Today, in Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:
  • The Federal Equal Pay Act (“FEPA”);
  • Title VII of the Civil Right Act of 1964 (“Title VII”);
  • The Massachusetts Equal Pay Act (“MEPA”); and
  • Chapter 151B of the General Laws of Massachusetts (“151B”).

• The National Labor Relations Act governs most private sector employers in the Commonwealth and throughout the country. That law makes it abundantly clear that employees have the right to engage in protected concerted activity. That means that no employer is allowed to retaliate against, discipline or terminate an employee who discusses how much money they make or how much money someone else makes.

• Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.

 

What Will Change When The New Law Goes Into Effect On 7/1/18:

• The current Massachusetts Equal Pay Act (“MEPA”) requires employers to provide “equal pay” for “equal work.” The new law prohibits differences in pay for “comparable work,” which is defined as solely meaning “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”
•  Unfortunately, we will have another vague term that creates an ambiguous standard that will expand employers’ obligations to insure equal pay within it workplace.
• The current practice of assessing pay equity within job titles and job descriptions must now expand across different jobs to meet the “comparable work” standard.
•  Wage Disclosure Restriction – The law will prohibit employers from requiring an applicant’s compensation history prior to making a job offer that includes pay/compensation. However, applicants can voluntarily disclose wage history and job applications should note that providing pay history information is voluntary. Make no mistake – the new law does not govern or in any way restrict conversations within the recruitment process related to portable business. Such as: how many clients do you currently work with? How many of those clients are likely to follow you? How much revenue do you expect those clients to generate if they follow you and you land here? Tell us about how you create and maintain your contact network, including the number and types of contacts you have within our industry?
• We also know that conversations in the workplace about pay are protected.

 

How Can Employers Avoid Liability:

• Wage differentials between employees of opposite genders must be based upon one of the following factors:
  • Seniority – Provided that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave should not reduce seniority.
  • Merit system;
  • Quality or Quantity of Production – A system which measures earnings by quantity or quality of production, sales, or revenue;
  • Geographic location in which a job is performed;
  • Education, training or experience to the extent such factors are reasonably related to the particular job in question; and
  • Travel, if travel is a regular and necessary condition of the particular job.

 

• Create a rolling affirmative defense by conducting a self-evaluation of pay practices that is “reasonable in detail and scope in light of the size of the employer” and make “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. This evaluation creates an affirmative defense if it is completed within the three years prior to the commencement of a wage discrimination claim.

 

• Our Pay Equity Audit will create a rolling affirmative defense for your company.

 

Take Full Advantage Of The Next 23 Months To Achieve Compliance:

• Benjamin Franklin was right: an ounce of prevention is really worth a pound of cure and nevermore than in wage issues.
• Take advantage of our Pay Equity Audit to achieve compliance and create a rolling affirmative defense.
• Revise pertinent policies, your company’s employment application, training and hiring practices to reduce exposure.

 

We can help!