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Tracey Truesdale

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Tracey Truesdale is a partner and co-chair of the Labor & Employment Law Practice Group at Franczek P.C. She has represented management in labor and employment for more than 25 years. She represents both national Fortune 50 corporations and smaller companies, with clients in the professional services, manufacturing, construction, and technology industries.

Tracey has significant experience advising and defending employers on OSHA matters, including post-accident advice and representation of employers in employee fatality and catastrophe investigations, representing employers in negotiations with federal OSHA over OSHA citations and penalties, litigating OSHA complaints before the Occupational Safety and Health Review Commission, and investigating, defending, and litigating employee claims of retaliation under the OSH Act.

Tracey’s employment law practice includes strategic advice to clients in force reduction and other business scenarios; preventive counseling on matters of employee discipline, discharge, and leave issues including FMLA, ADA, Chicago and Cook County paid sick leave as well as other state and local leave laws; and development of personnel policies and employment handbooks.  Tracey has served as lead counsel in single and multiple-plaintiff employment discrimination actions; in mediation and arbitration proceedings under FINRA and private ADR; in Sarbanes-Oxley, Dodd-Frank, OSHA 11(c) and other whistleblower actions before OSHA and the U.S. Department of Labor; and in labor arbitration cases involving discipline for fighting, harassment, theft, drug/alcohol use, falsification of records, absenteeism and fraudulent use of approved leave.

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The Department of Labor (“DOL”) released an opinion letter addressing whether certain overtime payments based on an expected number of hours may be credited towards the amount of overtime pay owed under the Fair Labor Standards Act (“FLSA”) and whether such overtime payments are excludable from the regular rate. The answer to both questions is yes.

The inquiry came from a business that provides in-home care services on a live-in basis or for shifts of 24 hours or more. The employer pays an hourly rate plus overtime based on anticipated overtime hours. The caregivers typically work five days a week for 120 or more hours. Given the nature of the caregivers’ work, the employer found it difficult to track which hours the caregivers were actually working. The employer therefore treats the employees as performing compensable work for the entire extended shift, minus 8 hours allotted for sleeping and meal breaks. If a caregiver has any work-related interruptions to meal or sleep periods, the caregiver is to track those hours and they are counted as compensable time. If a caregiver works more than anticipated, then the employer supplements the prepaid compensation at a rate of 1.5 times the caregiver’s hourly rate for each unanticipated hour of work over 40 hours.Continue Reading Pay Me Now, or Pay Me Later? Wages Paid for Anticipated Overtime are Excludable from Employees’ Regular Rate

In Field Assistance Bulletin No. 2020-4, issued June 26, 2020, the United States Department of Labor, Wage and Hour Division, recognized a number of ways an employee can establish eligibility for Family First Coronavirus Response Act (FFCRA) leave based on the closure of a summer camp or program that the employee claims would have been the place of care for the employee’s child over the summer. In addition to proof of actual enrollment or application to a camp or program, if an employee’s child attended a camp or program in the summer of 2018 or 2019 and the child remains eligible for the camp or program for Summer 2020, that may be sufficient.  Likewise, if an employee’s child is accepted to a waitlist pending the reopening of a camp or program or the reopening of the camp or program’s registration process, that, too, may be sufficient. Although the DOL states that mere interest in a summer camp or program is not enough, this broad interpretation opens the door to many new requests for FFCRA leave for employees. Employers should continue to obtain as much information as possible from an employee regarding the reasons the employee considers a summer camp or program to be the provider for the employee’s child. Consider consulting with legal counsel if you receive a request where there is a question as to whether the provider is in fact the child’s provider, including requests related to a summer camp for which no application, acceptance, attendance, or enrollment has occurred.
Continue Reading DOL Broadly Defines When a Summer Camp or Program is a Child’s Place of Care for FFCRA Leave

I believe most would agree, the Department of Labor’s (DOL) interpretative guidance typically provides useful insight to employers navigating often tricky wage and hour laws. This was not the case with the DOL’s decades-old guidance regarding whether an employer was a “retail or service establishment” and could claim an overtime exemption for certain employees paid on commission under Section 7(i) of the Fair Labor Standards Act (FLSA). In its interpretative guidance, the DOL created lists of industries that were either not recognized as retail establishments, or could possibly be recognized as retail establishments. In an action that should be mostly applauded by employers, the DOL recently issued a final rule withdrawing these particularly unhelpful “industry lists” and will instead evaluate every industry according to its regulations.
Continue Reading DOL Withdraws Industry Lists from its Retail or Service Establishment Exemption Interpretative Rule

The U.S. Department of Labor (DOL) has issued a final rule under the Fair Labor Standards Act (FLSA) expressly authorizing employers to offer bonuses, hazard pay, and other premiums to employees whose hours, and regular rate of pay, vary from week to week.

The final rule revises 29 CFR §778.114, which is the DOL regulation that specifies how overtime is to be computed for salaried, non-exempt employees who work a fluctuating workweek. The new rule clarifies that bonuses, premium payments, commissions, and hazard pay on top of fixed salaries are compatible with the fluctuating workweek method of compensation and that employers must include such variable compensation when calculating an employee’s regular rate for overtime purposes. The final rule includes example calculations to illustrate how to factor in such payments.Continue Reading DOL Green Lights Bonuses for Employees with Fluctuating Work Schedules

The anticipated spread of coronavirus in the U.S. has many employers revisiting their emergency response plans. Depending on guidance from public health officials, some employees may be directed to work from home, temporarily furloughed, or work a reduced schedule. Some managers and executives may be pressed into service to perform more manual or routine tasks.

To paraphrase a favorite sign in my office, this is not the Department of Labor’s first rodeo, and there is existing guidance under the Fair Labor Standards Act’s (FLSA) implementing regulations on how employees must be compensated in these situations. Let’s look at some of the wage/hour issues presented when a business must alter its operations due to a public health emergency.Continue Reading Coronavirus: How to Properly Pay Employees in the Event of a Pandemic