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Kevin E. Vance
Partner
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Each year around this time we employment lawyers anxiously await the EEOC’s release of it’s fiscal year statistics. We want to know whether our warnings to our clients that the EEOC is “increasingly active” and that the number of charges filed is “up” still ring true. Well, this week the EEOC released its 2013 fiscal year (Oct. 1 – September 30) numbers. And the numbers are a mixture of good and bad news for employers.

The good news (if you can call it that) is that there was a significant decrease in the number of charges filed. In FY 2013, 93,727 charges were filed, which is about 6,000 less than in both 2011 and 2012. This decline may be an indication that the economy is on the right track, because, in general, the worse the economy the more charges are filed. Employees who are out of work are obviously more likely to bring claims than those who remain employed.

The bad news is that the EEOC secured a record amount of settlement dollars from private sector employers – $372.1 million. This tells me that the EEOC is more agressively investigating charges and bringing lawsuits on behalf of employees. This is a trend that is likely to continue through the remainder of the Obama presidency.

About Kevin E. Vance
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Kevin E. Vance is board certified by the Florida Bar in labor and employment law. He focuses his practice on labor and employment litigation and other types of business litigation. Mr. Vance is AV® Preeminent™ Peer Review rated by Martindale-Hubbell.
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Natalie F. Hrubos
Associate
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You can learn a lot from social media pages. For instance, if your employees have used any of these hashtags, you may have a wage and hour law problem.

#allworkandnolunchmakesjackadullboy

If Jack’s using this hashtag, he probably worked through his lunch break. This isn’t necessarily a legal problem if he got paid for all the time he worked. However, if Jack’s employer automatically deducts 30 minutes of work time for lunch each day, there’s an increased risk that Jack isn’t properly paid when he skips his lunch for work.

If he did take his meal break, but ran his personal errands instead of eating lunch, that break time is probably not compensable. Generally, Jack doesn’t have to be compensated for his lunch break if it is a “bona fide meal period” under the FLSA. This means that the employee is “completely relieved from duty” for the purpose of eating (usually for 30 or more minutes).

However, if according to Jack, #anappleadayisallihavetimefor, his lunch break may be getting interrupted by work, making it generally compensable under the FLSA.

#bestpartofwakingupisfolgersnotemailsfrommyboss

If your non-exempt employee gets emails from her supervisor before she arrives to work, she may be working “off the clock” in violation of wage and hour laws. Working “off the clock” means the employee’s doing work, but not getting paid for that time because she hasn’t yet clocked in (or she’s already clocked out) for the day.

This is a legal problem even if she’s specifically told to wait until she gets into the office to check her emails, etc. The FLSA regulations state that work not requested but “suffered or permitted” is compensable work time. Thus, if an employer knows or has reason to believe that an employee is working, then the time the employee spends doing that work is compensable.

The “virtual workplace” presents a number of opportunities for employees to work off the clock including by using their smart phones to check emails over breakfast, logging on from their home computers at night to finish up a report, and taking calls while in transit.

Employers must develop a system for tracking and recording this time as compensable work time. If the #earlybirdgetsthewormbutnotpaid, the early bird’s employer risks “off the clock” wage and hour litigation and liability.

#thisjobissoeasyamonkeycoulddoit

If the employee using this hashtag is non-exempt, there’s no need to be alarmed. If, on the other hand, he’s classified as an exempt administrative employee, there is cause for concern.

To qualify for the administrative exemption, the employee’s primary duty must be office or non-manual work which is directly related to the management or general business operations of the employer or the employer’s customers. Additionally, the employee’s primary duty must include the exercise of discretion and independent judgment as to matters of significance.

The employee here may not be able to meet this “duties test” if the reason a monkey could do the job is because it requires no thought or because the employer provides the employee with a detailed instructional manual for use in performing his job tasks.

Keep in mind that if an exempt employee asks #doihavetodoeverythingaroundhere, his employer should consider whether his “primary duty” is comprised of exempt tasks or non-exempt tasks. If it’s the latter, despite being (mis)classified as exempt, the employee is probably entitled to overtime for every hour worked over 40 in a workweek.

Employees don’t have to use hashtags on social media to raise #FLSA issues. Managers should be trained to pay close attention to what employees are doing and saying about compensation issues. By being proactive, employers can effectively identify and address wage and hour concerns before they result in costly litigation.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

About Natalie F. Hrubos
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Natalie F. Hrubos represents and counsels management clients in all aspects of labor and employment law. Her litigation experience ranges from single plaintiff employment discrimination cases to multi-state wage and hour class and collective actions. Ms. Hrubos also counsels and trains management on a wide range of employment law matters, including wage and hour compliance, personnel policies and procedures, and diversity and inclusion initiatives.