By John Thompson – Link to Original Article

U.S. Wage and Hour Division Administrator David Weil reportedly has said that the Division is “looking very actively at” the question of whether workers should be legally entitled to “predictable scheduling.” In recounting Mr. Weil’s statements in a recent interview, Daily Labor Report characterized his remarks as having to do with whether an employee has an enforceable right to a predictable, stable work schedule or to some sort of advance notice of that schedule.

And The Source Of This “Right” Is . . .?
According to DLR, Mr. Weil sees it as being “an open question” whether such a supposed obligation falls within the purview of the current federal Fair Labor Standards Act. It would certainly be news to Division officials of the past to learn that there is any such purported question, particularly those who have expressly said that the FLSA neither regulates work schedules nor restricts an employer’s utilization of its adult workforce in any other way, so long as the law’s minimum-wage and overtime requirements are satisfied.

Perhaps this hints at the inclusion of some such requirement in connection with a coming revival of the apparently-moribund “Right to Know” initiative, the exact nature of which has always been vague and somewhat changeable since the concept (such as it is) first surfaced in 2010. In any event, it will not be possible to evaluate any claimed legal authority for such a proposed obligation until the U.S. Labor Department actually publishes something.

The Bottom Line
Of course, employers routinely choose for a host of good business reasons – including in the interests of sound employee relations – to maintain predictable schedules and to keep employees advised in advance of what their schedules are, at least where the nature of the work permits this. But to assert that an employer may be legally compelled to do so under the FLSA as it stands today is an entirely different and highly doubtful proposition.

We’ll stay on the alert for any such DOL proposal.

By Ted Boehm – Link to Original Article

Last month, Georgia became the latest state to pass legislation governing the payment of wages via “payroll cards.” Gov. Nathan Deal signed the new law on May 5, 2015. Prior to the passing of this bill, the payment of wages via payroll cards in Georgia was neither explicitly lawful nor unlawful. Any open questions about that issue have now been put to rest by the new legislation.

Many employers across the country have moved away from providing employees with physical checks on pay day, and have moved to a paperless alternative such as direct deposit. While direct deposit remains the most favored option for paperless wage payment, the payroll cards alternative continues to grow in popularity. Payroll cards work similarly to a gift card; the employer simply delivers an employee’s wages to a third party who in turn adds the wages to the payroll card which is then provided to the employee.

The new law requires Georgia employers to take certain steps before transitioning to this method of payment. First, employers must provide current employees with a “written explanation of any fees associated with the payroll card.” The most typical fees of this kind are “usage” or “withdrawal” fees, or fees to replace a lost payroll card.

Second, employers must simultaneously provide employees with a form that allows employees to opt out of the payroll card payment and request either a paper check or direct deposit. Both of these documents must be provided to current employees at least 30 days before an employer implements a payroll card system. For new employees, the documents must be provided at the time of hire.

Apart from requiring that employees be given notice of the fees associated with the payroll card, Georgia’s law has no additional requirements as it relates to fees. This distinguishes Georgia from the laws of certain other states that permit the use of payroll card but that also limit the amount or frequency of fees that may result to the employee during the use of such cards. For example, Nebraska’s wage payment law contains a provision regarding wage payment by payroll cards which notes that employers must allow “at least one means of fund access withdrawal per pay period…at no cost to the employee.”

Even though Georgia’s law does not address the impact of fees in this regard, Georgia employers must still be mindful of other laws governing employee pay. For example, the fees associated with the use of payroll cards might implicate the federal Fair Labor Standards Act, which governs the payment of minimum wage and overtime premium. Moreover, in 2014, the Federal Consumer Financial Protection Bureau issued a bulletin addressing whether an employer could require an employee to establish an account at a particular financial institution in the context of paying via payroll cards.

Employers nationwide should always check their state laws, and evaluate these and other considerations before implementing a payroll card system.

By Richard Meneghello – Link to Original Article

Here’s some advice you probably didn’t think you needed, employers: you should avoid, at all costs, giving or threatening to give your employees the biblical Mark of the Beast. And if they think you are doing so, you should accommodate them if possible. An employer in West Virginia ignored this advice and recently found itself on the wrong side of a $150,000 jury verdict. As with all employment-law matters, the case gets even more interesting when you learn more details, so if you want to be sure you know how to avoid this particular stumbling block, read on.

Scanning In
Consol Energy is a coal mining and natural gas company based out of Pittsburgh, with operations throughout the Appalachian region. Starting in 2012, the company sought to implement a more efficient way to track its employees’ comings and goings for payroll purposes, and announced that all workers would be subjected to “biometric scanning.”

It sounds scarier than it actually is: the scanning simply means that a small device would evaluate a person’s hand geometry and store the information to identify them in a unique way. Rather than punching in and punching out with a clock, or logging in and out of a computer system, employees simply would have to wave their hand over a scanner when entering or leaving a worksite for tracking and attendance purposes.

The problems arose when Consol announced this change at its Robinson Run Mine in West Virginia. Beverly Butcher Jr. had worked that mine for 35 years and by all accounts was a solid worker. He immediately objected when he learned about the new biometric scanning system, claiming that submitting to the scanning would be like submitting to the Mark of the Beast and therefore was objectionable to him on religious grounds.

For those of you who haven’t read the Bible’s Book of Revelation recently, one passage talks about the apocalypse and describes a powerful dragon emerging from the sea and enslaving the world. According to Revelation 13:16, the dragon “forced all people, great and small, rich and poor, free and slave, to receive a mark on the right hands or on their foreheads… which is the name of the beast or the number of its name….That number is 666.”

Butcher wrote a letter to management asking not to be subjected to the scanner, admitting that he knew that the hand scanner would not actually give him a number or a mark, but that “it is a device leading up to that time when it will come to fruition.”

Consol Energy assured him that the hand scanner was passive and wouldn’t imprint anything on him, but that did not convince him. The company next pointed out that the biblical passage described the mark being placed on the right hand and told him that he could use his left hand when scanning in and out of the mine, but he still refused. Finally, as a matter of last resort, the company produced a letter from Recognition Systems Inc., the manufacturer of the biometric system, assuring him that their product “does not, in fact, assign the Mark of the Beast.”

The letter did not convince him and he still refused. Instead, he offered to continue to write down his hours by hand as he always had, but the company would not allow it. As a result, Butcher retired in protest, about five years earlier than he had planned. And that might have been the end of the story, except.…

Why Are They Different?
Several months later, Butcher learned that several of his former coworkers were exempted from the biometric scanner because they had missing fingers and the machines wouldn’t work on them. Instead, they were allowed to enter their employee numbers on a keypad to track their comings and goings. This is exactly the kind of accommodation that Butcher had been seeking, and he was incensed to learn that it was being offered to people just because of physical reasons but not to him for spiritual reasons. He enlisted the assistance of the Equal Employment Opportunity Commission, and a religious discrimination lawsuit was filed on his behalf.

After several years of litigation, the case went to trial in early 2015. The company attempted to portray Butcher’s beliefs as irrational, going so far as to question him and his family about their inherent distrust of supermarket scanners. But the key question in the trial was not whether his religious beliefs were correct, but whether they were sincerely held. If so, and if they could be easily and reasonably accommodated, they should have been.

The focus of every religious accommodation case is whether the employer can provide a reasonable accommodation without incurring an undue hardship. And as you can imagine, the strongest argument for Butcher was that Consol Energy proved that they could easily accommodate their workers without undue hardship by establishing an alternative tracking method that did not require scanning. The jury was not asked to interpret the Bible, but instead whether the employer could have accommodated him. The jury ruled in his favor and awarded him $150,000, and a judge will soon decide whether to award him even more in economic damages. Consol has announced that it will appeal the verdict.

And In The End…
The lesson for employers – besides not attempting to enslave the world – is not to judge an employee’s religious beliefs but instead look at them from the accommodation perspective. If it is easy to offer a shift change, or a modification to the dress code, or a flexible schedule, or some other alteration to your standard practices and policies, you should allow the accommodation, without regard to whether you agree with their faith practices.