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Wage and Hour Archives

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.

The Department of Labor Begins its Pro Business Agenda with its Requests for Information on the Overtime Rule

The DOL has started to implement its pro-business policies, which should create a better environment for businesses. Although it took the DOL some time to hit its stride, we are now seeing some key policies being implemented.

Tipping the Scales: How the 10th Circuit Just Created a Show Down Over Tips

Many companies use tips from customers to meet the company's obligations of paying minimum wage under the Fair Labor Standards Act ("FLSA"). But is there a way that an employer could keep those tips? Or distribute those tips differently?

Fair Labor Standards Act Rounding Principles

Under the Fair Labor Standards Act, companies may use "rounding principles," for employees' hours worked. The FLSA allows companies to round the employees' hours to the nearest quarter hour. But the problem becomes that companies don't implement the principles correctly. Companies violate the rounding principle by only rounding down, which will result in a wage and hour violation.

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:

Illinois Trucking Companies Need To Beware: Owner Operators Challenging Their Employment Status And Deductions From Their Settlements Under The IWPCA!

A recent wave of litigation under the Illinois Wage Payment and Collection Act ("IWPCA") is threatening the entire trucking industry in the State of Illinois, by challenging owner operators' employment status, and then, the deductions from their settlements. This is forcing trucking companies to scrutinize their owner operator agreements to assure they are protected from any liability.

The Current Status of Wage and Hour Issues

Wage and hour lawsuits have continued to rise over the last ten (10) years and continue to be one of the highest risks in litigation for businesses. Throughout 2017, Wessels Sherman's wage and hour group will highlight some of the difficult issues facing businesses and how businesses can best handle those issues.

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