Voting Leave for Election Day

Posted by Staci Ketay Rotman on October 24, 2012

election-day-347x284.jpgAs mentioned in a recent FR alert, “Time Off to Vote?,” written by my colleague Sally J. Scott, Illinois requires employers to allow employees who are eligible to vote up to two hours of paid time off while polls are open (from 6:00 a.m. to 7:00 p.m.) on Election Day. For wage and hour purposes, employers should consider the following when determining whether an employee is entitled to this type of paid leave:

  • Employees must request leave before Election Day, and employers can specify when employees are permitted to be absent.
  • If an employee’s work day begins less than 2 hours after polls open and ends less than 2 hours before polls close, the employee must be allowed a 2-hour paid absence during working hours.

    • For example, an employee who works from 7:30 a.m. to 5:30 p.m. would be entitled to up to two hours of paid time off to vote.
  • If an employee's work day begins at least 2 hours after polls open or ends at least 2 hours before polls close, the employee may be required to vote outside of working hours.

    • For example, an employee who begins work at 8:00 a.m. or ends work by 5:00 p.m. may be required to vote outside of work hours.

Employers should be sure to check the state laws in which they have employees in order to be prepared for Election Day on Tuesday, November 6.  Also, employers should check any relevant collective bargaining agreements or past practice to determine whether such leave would be considered hours worked for overtime purposes.

Louisiana Joins the DOL's Misclassification Initiative

Posted by Staci Ketay Rotman on February 29, 2012

signing.memo.XSmall.jpgLouisiana is the latest State to sign a Memorandum of Understanding and join forces with the U.S. Department of Labor to combat employee misclassification.  These Memorandums of Understanding with state government agencies arose as part of the U.S. Department of Labor's Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. Louisiana is now the thirteenth State to sign one of these Memorandums after California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington.  The Memorandums allow the DOL to share information and to coordinate efforts with participating states as part of its Misclassification Initiative.

As we have previously mentioned, the DOL is laser focused on employers who misclassify employees as independent contractors.  And as misclassification continues to grow, so does the DOL’s resolve.  In 2011, the Wage and Hour Division collected more than $5 million in back wages for minimum wage and overtime violations under the FLSA that resulted from employees being misclassified as independent contractors or otherwise not properly treated as employees.  With that kind of money being collected, this issue is not going away any time soon.

Insight for Employers

Whether a worker is an independent contractor or an employee is a very fact specific analysis.   Like other misclassification issues, when left unchecked, failure to properly classify a worker as an employee may lead to serious monetary damages down the road.  Even if you are familiar with these rules, if your business uses independent contractors, it may be worth a few minutes of your time to confirm with an experienced employment attorney that your workers are properly classified. 

Do California State Overtime Laws Apply to Visiting Workers?

Posted by Bill Pokorny on July 05, 2011

California FlagDo you have employees who visit California for business? If so, now may be a good time to brush up on California wage and hour law. On June 30, 2011, the California Supreme Court ruled that the California Labor Code's overtime provisions applied to three non-resident employees of Oracle Corporation who performed work within the state. Sullivan v. Oracle Corporation (.pdf).  

Summary of the Ruling

According to the decision, the three plaintiffs, Donald Sullivan, Deanna Evich and Richard Burkow, formerly worked for Oracle as Instructors and were responsible for training Oracle customers on the use of the company's software products. While Orcale is based in California, Sullivan and Evich reside in Colordado, while Burkow lives in Arizona. They worked mostly in their home states, but also traveled to California and multiple other states. During the time period at issue in the litigation (2001-2004), Sullivan worked 74 days in California, Evich worked 110 days, and Burkow worked 20 days. 

After extensive discussion of the relevant statute and California's rules for reconciling conflicts among different states' laws, the California court held that the California Labor Code applies to "overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week." The Court further held that the state's unfair competition law applied to the plaintiffs' claims as to overtime work performed inside of California, but not to overtime work performed outside the state. 

Insights for Employers

On its face, the court's ruling is limited to non-resident employees of California-based employers who perform work within the state. However, many of the arguments underlying the court's decision to apply California law to visiting employees would apply equally to employers "based" outside of California, particularly if those employers have a permanent presence within the state. Consequently, employers who regularly send workers to California on business should consider whether they may be subject to the state's overtime laws.