Rice Law Office Blog

Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked. See Regulation 29 CFR 785.11.

Example 1:

A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.

Example #2:

An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even thought she worked at home and the time was unscheduled. See Regulations 29 CFR 785.12.

Some employers track employee hours worked in 15-minute increments, and the FLSA allows an employer to round employee time to the nearest quarter hour. However, an employer may violate the FLSA minimum wage and overtime pay requirements if the employer always rounds down. Employee time from 1 to 7 minutes may be rounded down, and thus not counted as hours worked, but employee time from 8 to 14 minutes must be rounded up and counted as a quarter hour of work time. See Regulations 29 CFR 785.48(b).

Example #1:

An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than seven minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before their shift or if the employee works from 8 to 14 minutes beyond the scheduled end of their shift.

Example #2:

An employee’s schedule is 7 a.m. to 3:30 p.m. with a thirty minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40. 

The Supreme Court’s decision to legalize gay marriage nation wide will have sweeping impacts, both immediately and in years to come. One of the immediate effects of the 5-4 ruling in favor of universal marriage rights will come in the realm of employment law. The legalization of gay marriage has necessitated policy changes for employers around the country. 

The new ruling will have immediate effects on benefits for spouses. Companies that extend spousal benefits, either because of state laws or company policy, will be immediately required to provide equal coverage for same-sex marriage spouses. Employers will need to review health insurance, tax status, and spousal leave options for same-sex married couples in the context of the new ruling. 

One specific effect is that companies must extend Family Medical Leave Act (FMLA) benefits to same-sex married couples. FMLA mandates that employers provide up to 12 weeks of leave annually for an employee who is either dealing with a serious medical condition themselves, or caring for an immediate family member (including spouse) with such a condition. Without exception, same-sex couples must now be provided equal benefits.

The ruling clears up what could have been a complicated legal situation for employees and employers alike. Some states had previously legalized same-sex marriage, while others had not—this meant that it was possible for a same-sex couple to be legally married in one state, but receive no spousal benefits if they worked in a state that did not recognize gay marriage.

With the new Supreme Court ruling, there is no lack of clarity—employers must provide same-sex married couples the same rights and access to benefits that heterosexual married couples receive.

Every employer in the country is required to display Family Medical Leave Act (FMLA) forms in a prominent position in the work place, but some employers have been using expired forms since the U. S. Department of Labor (DOL) issued forms expired on February 28, 2015. On May 27^th, the DOL issued a new set of FMLA forms with an expiration date of May 31, 2018 to address the lapse. 

The new FMLA forms are the same as the previous set in every way, except that disclosure language has been added for the Genetic Information Nondiscrimination Act (GINA) indicating that medical providers should not share information regarding an employee’s genetic testing or genetic family history.

The new language has been added to several of the FMLA forms, including WH-380-E, WH-380-F, WH-385, and WH-385-V. The issue of genetic testing is a new one for employers, and will likely become a topic of interest in the years to come. The new disclosure language is meant to provide protection for employers who accidentally receive genetic testing or genetic family history information.

The new forms can all be found on the U.S. DOL’s website, www.dol.gov but are also listed here for your convenience:

• Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)
• Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
• Notice of Eligibility and Rights and Responsibilities (WH-381)
• Designation Notice (WH-382)
• Certification of Qualifying Exigency for Military Family Leave (WH-384)
• Certification for Serious Injury or Illness of a Current Servicemember—for Military Family Leave (WH-385)
• Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

A recent ruling from the Eleventh Circuit Court of Appeals has expanded protections to allow for extended recovery for veterans suffering from Post-Traumatic Stress Disorder (PTSD).

The decision from the Eleventh Circuit Court means that protections for injury or illness must now include PTSD. Employers are required to accommodate veterans who need extended recovery time for PTSD, reflecting the growing appreciation and recognition for this serious challenge.

The U.S. Department of Veteran’s Affairs estimates that between 11% and 20% of all U.S. veterans returning from Iraq and Afghanistan suffer from PTSD. Department of Defense data indicates that 2.5 million men and women were deployed to Iraq and Afghanistan between 2001 and 2013, meaning there are 275,000-500,000 veterans who have struggled with PTSD as a result of the two conflicts. 

Military veterans enjoy certain protections and privileges when it comes to reemployment following a period of military service. The Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA) all enshrine this status in statutory law. 

Under USERRA, an employee returning from a period of uniformed service lasting longer than 180 days has 90 days to apply for reemployment following the completion of their service, at which point the employer must allow the returning employee to resume work.