by: janice b. rockwell, esquire 121-a n. court st. frederick, md 21701...

By:

Janice B. Rockwell, Esquire121-A N. Court St. Frederick, MD [email protected]

February 4, 2014

Bar Assn. of Frederick County, MD

Lawyers as Employers

2

How not to manage a law office

www.youtube.com/watch?v=34ag4nkSh7Q

Copyright 2014, Janice B. Rockwell, LLCFeb. 4, 2014

http://www.youtube.com/watch?v=34ag4nkSh7Q

http://www.youtube.com/watch?v=34ag4nkSh7Q

Copyright 2014, Janice B. Rockwell, LLC

3

Ignorance of the Law

Unlike Sergeant Schultz, what you don’t know WILL hurt you.

Feb. 4, 2014


4

Overview

I. Wage & Hour LawsII. Pregnancy and Other LeaveIII. Wrongful TerminationIV. RetaliationV. Jury Duty

Feb. 4, 2014


5

I. Wage & Hour Laws

Feb. 4, 2014


6

Overtime Exemptionsand Exclusions

Feb. 4, 2014


7

Exempt v. Non-exempt employee

Exempt from what? Does salary mean exempt?

Executive, Administrative and Professional

employees are exempt

Feb. 4, 2014


8

Tests for Exemption

Salary basis test Salary level - $455 per week Job Duties test

Feb. 4, 2014


9

Salary Basis Test

To be considered “salaried,” employees must receive their full salary for any work week in which they perform any work without regard to the number of days or hours worked.

Feb. 4, 2014


10

Personal and Sick (Full) Day Exception

Personal Days – Er may deduct ee pay for full day absences for personal reasons without destroying employee “salary” status

Sick Days – Er may deduct pay due to one or more full days missed due to sickness if deduction is made per bona fide sick leave plan compensating ee. Can deduct after ee’s sick leave is exhausted for full days.

Feb. 4, 2014


11

Salary Level

$455 per week – but there is no salary requirement for lawyers

Highly compensated employees – ee who earns $100,000 or more, which includes at least $455 per week paid on salary basis ($23,660 per year)

Feb. 4, 2014


12

Job Duties Test

Executive Ee – Primary duty is managing the enterprise; customarily directs the work of 2 or more ees; AND has authority to hire or fire ees or at least ee’s suggestions re same must be given particular weight

If ee is a “highly compensated” worker, ee need only meet one of the above duties

Feb. 4, 2014


13

Job Duties Test – Cont’d

Administrative Ee – Primary duty is performance of office or non-manual work directly related to the management or general business operations of er or er’s customers, and

Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance

Feb. 4, 2014


14


Professional Ee Learned Professional – Primary duty

must be performance of work requiring advanced knowledge – predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment; must be in a field of science or learning; and must be customarily acquired by a prolonged course of specialized intellectual instruction

Feb. 4, 2014


15


Professional Ee Creative Professional – Primary duty

must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor

Feb. 4, 2014


16

What Does All This Mean?

Salary

Does Not Necessarily

Equal Exempt Employee

Feb. 4, 2014


17

Calculation of Overtime Pay forNon-Exempt Salaried Employee

Hypothetical Non-exempt employee is paid salary

of $500 per week for all hours worked.

Assume employee works 55 hours one week.

Total pay due for the week is $568.25

Feb. 4, 2014


18

Calculation of Overtime Pay forNon-Exempt Salaried Employee

(Cont’d)Here’s how: Regular rate varies based on # hours

worked. Regular rate is $9.09 per hour ($500

divided by 55 hours) Half-time rate is $4.55 (1/2 X $9.09) 15 hours OT x $4.55 per hour =

$68.25 $500 + $68.25 = $568.25Feb. 4, 2014


19

Compensatory Time

My secretary, Dutiful Delilah is a great asset to our firm. She works late without advance notice whenever I need her. She’ll work through lunch without being asked. She even does my holiday shopping for me. To recognize her above and beyond efforts, I told her to take time off – on the firm dime when she had to deal with some family health problems.

Feb. 4, 2014


20

InternsTo pay or not to pay?

6 Criteria to satisfy for “not to pay” Similar to training in educational

environment For the benefit of the intern Intern doesn’t displace ees Er derives no immediate advantage

from intern; its operations may actually be impeded

Intern isn’t necessarily entitled to job at end

Er and intern understand intern is not entitled to wages for internship

Feb. 4, 2014


21

Summer EmployeesIndependent Contractor or Employee?

They’re seasonal, temporary or casual employees. They can be 1099’ed,

right?

Feb. 4, 2014


22


WRONG

Feb. 4, 2014


23


So, you have to add them as employees. Does this mean you have to give them benefits, such as vacation, insurance, or PTO time?

Feb. 4, 2014


24

Payroll Deductions

You, Lavish Law, LLC provided young attorney, Entrepreneurial Ernie, with a firm cell phone and iPad. The firm paid the phone bill. He could use them for anything he wanted, including personal uses, but he knew they were firm property. Ernie up and left one day, taking with him clients, cell phone and iPad. Ernie refuses to return them. P.O.’ed Partners want Ernie’s neck but they’ll settle for deducting cost of phone and iPad from Ernie’s last paycheck. May they?Feb. 4, 2014


25

Payroll Deductions

It Depends.Does Lavish Law have written agreement

from Entrepreneurial Ernie authorizing the deduction of the cost of the phone and iPad from Ernie’s paycheck?

What if they don’t?What if it is a general authorization?

Feb. 4, 2014

http://bestclipartblog.com/clipart-pics/coins-clip-art-4.jpg


26

II. Pregnancy and Other Leave

No pregnancy leave mandate* FMLA leave – up to 12 weeks unpaid

leave for several family related events, including birth or adoption of a child

Same leave benefits as for other short term disabilities – paid or unpaid

Can’t discriminate or harass b/ of pregnancyFeb. 4, 2014


27

Pregnancy

Maryland Reasonable Accommodations for Disabilities Due to Pregnancy Act – effective Oct. 1, 2013

15 or more ees Accommodations to pregnant ees

with disability caused or contributed to by pregnancy

Poster requirement and handbook info, www.mccr.maryland.govFeb. 4, 2014


28

Nursing Mothers 2010 amend. to FLSA (part of PPACA)

to require ers to provide all non-exempt ees reasonable break time for an ee to express breast milk for nursing child

Must also provide a private place, other than bathroom, free from intrusion of co-workers

Can be uncompensated break time – but caution – breaks of 20 mins or less paid

Feb. 4, 2014


29

Other Leave / Break Time

1. FMLA – 50 or more ees – birth, adoption, foster placement, care of self for serious health condition or that of child, spouse or parent, qualifying exigency due to child, spouse or parent on active duty

2. MD Flexible Leave Act, 10-1-08 – 15 or more ees – ers who provide paid leave benefits must permit ee to use time to care for immediate family member illness

Feb. 4, 2014


30

Vacation

No mandate Paid or unpaid upon termination of

employment? Paid as wages at termination

Feb. 4, 2014


31

Lunch and Break time

No law requires breaks* Breaks over 20 mins – unpaid as long

as ee is free to leave worksite What about ee who eats lunch at

desk? Are they free to go? Are they working? What if you don’t ask them to work

through lunch?

Feb. 4, 2014


32

III. Wrongful Termination

What is it? Unfair termination? Molesworth v. Brandon, 341 Md. 621

(1996) Er’s motivation for discharge contravenes

clear mandate of MD public policy. e.g. employee’s exercise of legal rights for i) filing worker’s comp claim ii) reporting violations of co. wrongdoing, iii) refusal to commit an unlawful act such as giving false testimony at a hearing, etc.

Feb. 4, 2014


33

IV. Retaliation

Feb. 4, 2014


Retaliation Claims are the Most Popular Claim

EEOC Charge Statistics 1992 15.3% 1997 22.6% 2010 36.3% 2011 37.4% 37,334 retaliation claims in 2011*

*31.4% are Title VII retaliation claims

34Feb. 4, 2014

Far Reaching Tentacles of Retaliation

The Broad Tentacles of Retaliation

35

Title VII, ADA, ADEA,GINA, USERRA

Title IX

FLSA, FMLA, EPA, ERISA (pay and leave)

NLRA, LMRA (concerted activity)

OSHA, Workers’ Comp, HIPPA

Sarbanes Oxley, Dodd Frank Act (whistle blowing)

False Claims Act

MD Anti-discrimination statute, & state, local ordinances

Title VII Definition

Title VII makes it an unlawful employment practice to discriminate against an employee or applicant “because he has opposed any practice

made an unlawful employment practice by this subchapter” (the “opposition” clause) OR

“because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (the “participation” clause)

Copyright 2014, Janice B. Rockwell, LLC 36Feb. 4, 2014

Retaliation – Key Terms

Copyright 2014, Janice B. Rockwell, LLC 37

Protected Activity

Adverse Employment Action

Causal Connec

tion

Feb. 4, 2014

How can you Oppose?

Complaining to anyone about discrimination against you?

Complaining to anyone about discrimination against others?

Threatening to file a charge of discrimination?

Picketing to oppose discrim? Refusing to obey an order

thought to be discriminatory?

YesNo

_____ _____

_____ _____

_____ __________ _____

_____ _____Copyright 2014, Janice B. Rockwell,

LLC 38Feb. 4, 2014

What’s an Employer to do?

Review training and compliance programs to make sure you’re preventing problems before they occur.

Copyright 2014, Janice B. Rockwell, LLC 39

No Problem

No Complaint

No Retaliation

Feb. 4, 2014

What’s an Employer to do?

Culture is key.

Create an environment where employees feel safe to blow the

whistle.

Copyright 2014, Janice B. Rockwell, LLC 40Feb. 4, 2014


41

V. Jury Duty

Md law – can’t fire ee for serving jury duty

If ee is exempt, er can’t deduct pay for partial week’s absence for jury duty

Hours of work – As of 10-1-12, if the jury service takes 4 hrs or more, er can’t require ee to work shift beginning 5:00 pm or later following jury duty or before 3:00 am the day after jury duty

Feb. 4, 2014


42

Questions

Legal Disclaimer: This presentation is not intended to be legal advice or a substitute for legal advice. You

should consult your attorney for guidance on a particular situation.

Janice B. Rockwell, Esq.Janice B. Rockwell, LLC

121-A N. Court St.Frederick, MD 21701

[email protected]

The End

Feb. 4, 2014

by: janice b. rockwell, esquire 121-a n. court st. frederick, md 21701...

Documents