Sixth Circuit Deems Unlawful a Policy Requiring Employees to Repay Advanced “Draws” Upon Termination

The employer, hhgregg, Inc., has a compensation system where the sales employees (non-exempt) are paid commissions.  They are advanced a “draw” in any week in which they do not make enough sales to have the commission payments cover the minimum wage requirements.  The “draw” is then deducted from future commissions.  Upon termination, the employee – per policy – is required to immediately repay any outstanding draws.

A collective action was brought against hhgregg, and various wage and hour claims were asserted.  We are going to focus on one.

Interestingly, the employees did not focus on the policy which required them to repay any outstanding “draws” upon their termination.  In fact, the company represented it did not enforce that part of the policy.  But, the Court of Appeals found it quite interesting. Continue reading

Transgender Employees Continue to be at the Center of Debate

On October 4, Attorney General Jeff Sessions issued a Memorandum withdrawing the 2014 Memorandum of former Attorney General Eric Holder concerning whether Title VII’s prohibition on sex discrimination included a prohibition on discrimination because of a person’s transgender status.  Attorney General Holder concluded it did.  Attorney General Sessions concludes it does not.  Interestingly, it is a reminder of the purpose of the three branches of government.  Congress as the legislative branch drafts our laws.  The Attorney General as part of the executive branch is responsible for enforcing those laws.  The judicial branch is responsible for interpreting our laws.

Remembering the purpose of each branch is important.  At any time, Congress can clarify whether Title VII prohibits discrimination on the basis of a person’s gender identity, transgender status, sexual orientation, etc.  Until it does so, members of the executive branch, like the Attorney General, will make decisions as to whether to pursue cases based upon that branch’s interpretation of the law.  But, ultimately, the law’s actual interpretation falls to the judicial branch. Continue reading

White Collar Exemptions Continue to Be Awash with Questions

To recap, persons qualifying for what is commonly referred to as the “white collar” exemptions are exempt from the entitlement to overtime pay under the Fair Labor Standards Act (FLSA).  White collar exemptions are the executive, administrative, and professional exemptions.  With few exceptions (like teachers and attorneys) to qualify for a white collar exemption, the Department of Labor (DOL) has required, among other things, positions to be paid a minimum specified weekly salary.

In 2004, the DOL set that minimum weekly salary at $455 per week (which, if one worked 52 weeks in a year, would equal $23,660 annually).  That rate remained the same until 2016 when the Obama administration proposed to increase the rate to $913 per week (or $47,476 annualized), with an automatic accelerator built-in for successive years. The change was set to go into effect December 1, 2016.

As employers began preparing for this increase – be it reclassification of positions, increases in pay, changes in duties, or the like – lawsuits were filed contesting the proposed regulations.  On November 22, 2016, days before the regulation was to take effect, the United States District Court for the Eastern District of Texas entered an injunction, stopping the regulation from taking effect anywhere until such time as the litigation could be resolved.

Time passed.  A new administration took the helm.  The Trump administration was not as excited about the changes as the previous administration, which brings us to today.  Continue reading

Oklahoma Supreme Court Answers the Question of Where Do Worker’s Comp Retaliation Claims Get Resolved

There has been a battle between attorneys since the Oklahoma legislature adopted the Oklahoma Administrative Workers’ Compensation Act (AWCA) February 1, 2014.  Why?  Well for years prior to that date, Oklahoma had the Workers’ Compensation Act (WCA).  Under the WCA, a traditional worker’s comp claim (one in which an employee sought compensation for injuries) was determined by the Worker’s Compensation Court, and claims of retaliation under that law were resolved in state district court.

In 2014, the Oklahoma legislature repealed the WCA and passed the AWCA.

With the passage of the AWCA, the Worker’s Compensation Commission was born.  The Commission would hear traditional “comp claims”.  It was also given “exclusive jurisdiction” to hear claims of discrimination or retaliation based upon a person exercising rights under the AWCA.  If a person claims discrimination or retaliation for the exercise of rights under the AWCA, that person must file with the Commission (not a court) and the Commission, without a jury, is to determine the fate of the claim.

Suddenly, everyone was very concerned about whether the claim would fall under the WCA (a court proceeding with a jury) or the AWCA (heard before the Commission with no jury). Continue reading

“Hire American” Executive Order – Read the Fine Print

On April 18, 2017, President Trump signed his Executive Order on Buy American and Hire American. It is important you read the fine print on this, like so many things these days that are reduced for the purposes of a hashtag.

This is an executive order. It does not apply to private businesses.  It is not a law passed by Congress.  It applies to the executive branch of the government.  Moreover, despite its title, it does not reflect a preference for hiring “Americans” as such a preference would be illegal.

Title VII of the Civil Rights Act – a law passed by Congress in 1964 – prohibits discrimination in employment based upon, among other things, one’s national origin. Continue reading

Lying to the DOL is a Recipe for Disaster

By Kristen L. Brightmire

So what happened to cause Judge Dowdell to declare a jury’s verdict so unreasonable it had to be thrown out, a decision by the way which the Tenth Circuit Court of Appeals has just upheld? It’s an interesting story.

If you are from the Tulsa area, you are undoubtedly familiar with the El Tequila restaurants. In December 2010, an employee lodged a complaint with the Department of Labor’s Wage and Hour Division (DOL) which prompted an investigation into its Harvard location.  As is often the case, a time was set for the DOL investigator to report, review records, and interview certain employees.  As a result of this initial investigation, all seemed fine but for some recordkeeping violations.  The investigation was closed.

In the following months, more employees complained. The DOL opened a second investigation. This round, the DOL decided a surprise visit was warranted.  Lo and behold, the DOL discovered a different set of records revealing violations of the Fair Labor Standards Act.  Employees were not being paid minimum wage or overtime for the hours they were working.  The records the DOL had reviewed previously had been doctored.

The employee interviews were different as well. The employees not only said they worked hours for which they were not properly compensated, they told the DOL investigator they had been instructed by owner Aguirre to lie during the first investigation.

Continue reading

Your Employees are on Strike! – No, Not Union Employees and Not a Union Strike

By Kristen L. Brightmire

These are interesting times in which we are living to be sure. Political activism is seeing an uptick.  On Friday, February 17, we saw the General Strike which was designed to be a nationwide protest against President Trump.  Also touted as a Day without Immigrants, it was a call for persons to stop working and instead join a demonstration or participate in a service project.  Another similar strike is gearing up for Wednesday, March 8.

There were other stories about how employers and employees handled these issues, and we were called upon to advise clients as well. Without commenting on any specific situations for obvious reasons, it is important to talk about this issue.

You should expect it will come up again, perhaps as soon as March 8. Before then, you should think through some of these issues and how you will respond.

Continue reading

Why blog?

By Kristen L. Brightmire on February 1, 2017

I don’t make New Year’s resolutions, but this year I made a decision.  I needed to try something new professionally. For years, I have admired my friend Jon Hyman’s blog, http://www.ohioemployerlawblog.com/p/about-jon-hyman.html.  While I am not going to attempt to replicate his by any means, I liked the idea of having a way to communicate more quickly.  So without further ado, the blog is launched.