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Wage and Hour Archives

DOL Issues Six New Opinion Letters

On August 28, 2018, the Department of Labor, Wage and Hour Division, issued six new opinion letters on issues under the Fair Labor Standards Act and Family Medical Leave Act. They are summarized below:

Recent Court Ruling On Equal Pay Suggests That Salary History Questions May Be Off Limits In Job Interviews

Asking job applicants how much they make with their current employer, or what they've been paid in prior positions, are common questions in job interviews for many hiring employers. While questions on salary history generally are not per se unlawful - yet - they can land an employer in hot water. The legal theory against salary questions in onboarding is based on the Equal Pay Act of 1963 and its state law counterparts. These laws make it unlawful for an employer to pay women less than men for doing the same work. However, despite more than 50 years since the Equal Pay Act became law, there are growing concerns that women continue to be paid less than men. If true, basing job offers on a woman's salary history could serve to perpetuate gender-based disparities in pay. This was the rationale in a recent decision issued by the U.S. Court of Appeals for the Ninth Circuit, in California, which held that setting initial pay of new hires based on their salary history cannot serve as a defense to an Equal Pay claim. This decision conflicts with a 1995 opinion of the U.S. Court of Appeals of the Seventh Circuit, in Chicago, which held that salary history is a "factor other than sex" that may provide a defense to claims challenging pay differences based on gender. A showdown before the U.S. Supreme Court now seems likely. Additionally, emerging laws and administrative requirements aimed at "closing the pay gap" and/or "breaking the glass ceiling" are ushering in significant change. Employers who fail to stay ahead of this trend risk trouble down the road.

DOL Rolls Out Voluntary Self-Audit Program (PAID)

On April 3, 2018 the Department of Labor implemented a new pilot program, in effect for the next six months, under which employers may correct inadvertent minimum wage and overtime violations without the imposition of penalties or liquidated damages (employers must still pay 100% of any back wages owed). Under the new program - Payroll Audit Independent Determination (PAID), employers are encouraged to conduct self-audits, and if they discover any violations, to report them to the Wage and Hour Division, which will work with the employer and affected employees to correct them.

Employers Beware of Using "Comp Time" In Lieu of Paying Overtime!

There is a popular (and incorrect!) belief that all employers can provide employees compensatory time off in lieu of paying overtime ("comp time"). While public employers can use compensatory time in lieu of paying overtime (with certain limitations), private employers who provide their employees with compensatory time off will mostly find themselves caught in a real legal snafu.

Electronic Timekeeping - A Hidden Source of Liability

Your company utilizes electronic timekeeping software, whether purchased for internal use or provided by a third party payroll service. The system is operating, so it must be doing so legally, right? Not necessarily. On several recent occasions I discovered, much to the dismay of my clients, that the timekeeping system they have been utilizing for years was setup in a manner that violates state and federal wage and hours laws - often discovered, unfortunately and expensively, in connection with a Department of Labor audit or other legal action.

Applebee's Learns an Expensive Lesson About Earned Vacation

Former Illinois employees of the popular restaurant chain Applebee's will receive restitution for earned but unused vacation time as part of a $650,000 settlement agreement announced in March. The settlement agreement will cover approximately 5,200 workers who left Applebee's between 2003 and 2013 and were not paid for earned vacation time as part of their final pay. Naturally, this settlement provides a valuable lesson to Illinois employers at Applebee's expense. With that in mind, here are a few key takeaways for employers:

Wal-Mart Loss: Employee Drivers Must Be Paid For All Time Working

In the United States under both state and federal laws, trucking companies generally cannot pay their employee drivers for only "bill of lading hours." Companies/employers must pay their employee drivers from the time the drivers report for duty until they are released from duty for the day-not just for "bill of lading hours."

Village of Barrington "Opts Out" of Cook County Sick Leave

As I am sure most, if not all, readers of this Illinois Client Update are aware, over the last few years both the City of Chicago and Cook County have been very active in creating legislation increasing the obligations of Employers with regard to Hourly Wage Rates and Sick Leave. Both the City of Chicago and Cook County have seen fit to pass legislation increasing the Minimum Wage and creating a Paid Sick Leave concept for Employers within their geographic boundaries:

DOL Remains in the Spotlight, Settling Wage and Hour Claims Brought by Its Own Employees and Fighting Opposition to its Controversial New Overtime Rule

September 2016

Employee Wage Deductions

In a rare and somewhat unexpected action, the Illinois Department of Labor, which is not perceived as an "employer-friendly agency," recently amended the requirements that are imposed on employers when making deductions from employee wages.

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