By: Barry Guryan and Jeff Ruzal
In a highly publicized March 23, 2010 decision, Awuah v. Coverall N. Am., Inc., 707 F.Supp.2d 80 (D. Mass. 2010), U.S. District Judge William Young for the District of Massachusetts rocked the Massachusetts business community by ruling that a group of janitorial franchisees were improperly classified as independent
By Michael Kun
Several years ago, employees in California began filing class action lawsuits against their employers alleging violations of the “suitable seating” provision buried in the state’s Wage Orders. The unique provision requires some employers to provide “suitable seating” to some employees when the “nature of their work” would “reasonably permit it.”
The use
By Kara Maciel
Our national hospitality practice frequently advises restaurant owners and operators on whether it is legal for employers to pass credit card swipe fees onto employees or even to guests, and the short answer is, yes, in most states. But whether an employer wants to actually pass along this charge and risk
By: Kara Maciel, Adam Solander and Lindsay Smith
As the Employer Mandate compliance deadline looms for employers under the Affordable Care Act (“ACA”) and employers are closely monitoring employee hours, it is critical that employers take appropriate and lawful steps to record all hours worked by an employee. If employers try to play games and manipulate how time records are maintained, they could find themselves in hot water under both the ACA and the Fair Labor Standards Act (“FLSA”).
In what appears to be one of the first lawsuits challenging how hours are recorded under the ACA, an employee filed a putative collective action against Sun Holdings, LLC, a fast food franchisee. The employee, a busboy at a Golden Corral restaurant, alleged that his managers required him to work under his real name and an alter ego to avoid paying him for all hours worked. This set-up allegedly was designed to avoid having to pay overtime compensation under the FLSA and to count him as a full-time employee eligible to receive health benefits under the ACA.
Accurate calculation and recording of the total number of hours worked by an employee is essential to compliance with the provisions of both the FLSA and the ACA. Under the FLSA, an employer must pay an employee at least the minimum wage for all hours worked. An employer must also provide overtime compensation at one and a half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week, unless that employee is classified as exempt. Therefore, if an employer attributes some amount of time worked by one employee to an alter ego through which the employee cannot claim his time, the employee may be deprived of the overtime compensation he has earned.
Additionally, the ACA only provides benefits to employees who reach a certain amount of hours and binds employers with a certain amount of employees meeting that hour threshold. The ACA applies to employers with 50 or more employees working 30 or more hours per week. Only those employees working 30 hours or more per week are entitled to the health care coverage required by the ACA. Therefore, an employee may lose the benefits to which he would otherwise be entitled if a portion of his hours worked is attributed to someone else, causing him to fall below the 30-hour minimum. Furthermore, an employer may avoid the obligations of the ACA if it records 30 hours or more of work time for less than 50 of its employees. Although the Employer Mandate, which puts the employer-provided coverage into effect, does not kick in for large employers until January 1, 2015, applicability of the ACA depends upon the size of the affected workforce during the prior calendar year.
A claim of this kind could be very costly for an employer because, as is the case here, such claims are often brought as collective actions. In this case, the employee filed his claim on behalf of himself and all others similarly situated. Although the amount of unpaid wages and liquidated damages he seeks only amounts to approximately $15,000.00, the franchisee owns roughly 400 restaurants in Texas and Florida. Thus, a court award, or even a settlement, could be quite significant.
These allegations demonstrate the importance of correctly tracking employee hours and ensuring that an employee receives compensation and benefits in accordance with the total amount of hours worked. Often times, this may mean training your managers as to the correct protocol for recording and compensating hours worked and monitoring to ensure managers are following that protocol.
Importantly, this case forecasts what could be an emerging and growing area of litigation under the ACA, so employers must be ever vigilant about putting into practice protocols that ensure they are complying with the ACA and not manipulating hours to avoid the Employer Mandate’s requirements. Considering that an analysis under the Employer Mandate’s look-back methodologies should be done this year, any changes to employees’ hours should be closely reviewed with legal counsel. Although overtime compensation and benefits coverage can create increased financial burdens on employers, the cost of not complying can be even greater.
Continue Reading Playing with Employees’ Hours Could Get You in Hot Water under the ACA and FLSA
By: Jordan Schwartz
As the calendar moves into spring, it is once again time for recreational golfers to start dusting off their clubs and begin to prepare for the golfing season. Unlike recreational golfers, however, owners and operators of golf courses have hopefully spent the off-season ensuring that their golf courses are compliant with the
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As widely reported, employers of all sizes are challenged in complying with the myriad of complex regulatory and compliance obligations under the Affordable Care Act (“ACA”). As our blog readers are well aware, certain large employers, as defined in the ACA, must provide “essential health benefits” that meet the law’s standards
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February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline. Specifically, by February 1st every year, certain employers are required by OSHA’s Recordkeeping regulations to:
1.Review their OSHA 300 Log;
2.Verify that the entries are complete and accurate;
3.Correct any deficiencies on the 300 Log;
4.Use the injury data from the 300 Log to