Employment Law Issues - OverTime / Handbook

 May 10, 2013

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Here is sampling of some of the issues covered in our Employment and Labor Law email newsletter.  To sign up for the emails from Judge Ruth Kraft click here or go to https://www.kirschenbaumesq.com/page/employment

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Can you give time off to compensate for overtime?

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    Presently you can not avoid over time pay by off setting time off with pay.  In other words, you can't avoid the over time rate of time and half.  

    However, some relief may be in sight.  A bill is currently before the US House of Representatives.  It is titled the Working Families Flexibility Act (H.R. 1406).  The Act, proposed on April 9, 2013, seeks to amend the Fair Labor Standards Act to permit private sector employers to compensate employees for overtime work by providing compensatory time off, in lieu of cash overtime wages.  Ironically, while it is currently illegal for all of us in the private sector to do so, governmental employers are permitted to offer extra paid leave in lieu of overtime pay.  This, in and of itself, is inconsistent with the goals of the FLSA.  The supporters of the bill have highlighted that public budgets would be strained by cash overtime requirements. The same logic applies to private sector employers, particularly small or medium-sized businesses.  The effort to pursue a rule change is not new; however, prevailing economic conditions may induce Congress to give it more weight than in previous years. 

Judge Ruth Kraft

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Employment Handbook Question

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Dear Judge Ruth:

    I'm confused.  I have a small business ( 5 employees, including myself) and have never written an employee handbook. However, I have put a few policies in writing on issues like attendance and personal leave after some problems with the staff.  Is there a legal requirement that I have a policy manual?  Can I write policies as issues arise? 

JL

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Answer

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Dear JL: 

    Great question!  Many small companies are, truthfully, intimidated by the thought of creating an employee handbook for a variety of reasons. 

    First is expense and as much as we, as compliance and employment attorneys, can tell clients from

morning until night that compliance is a lot less expensive than defending a lawsuit, it doesn't become an urgent need---especially in a weak economy when many businesses are simply trying to hold on.  Some employers will try to buy a "pre-fab" handbook online without considering precisely what policies it contains and whether it is in sync with the way that they actually run their businesses.  

    There is no legal mandate that you have a police manual.  Typically, a collective bargaining agreement will incorporate the terms of the handbook by reference and, if your workers are unionized, then you will need to draft a manual, in accordance with

the union contract.  Alternatively, sometimes the union writes the manual itself and requires the employer to accept it.

    You can write policies on an ad hoc basis, on issues that are of great importance to you.  Sometimes, this can be an excellent way to start creating a manual.  However,     I do not recommend that you go it alone.  It is critical that your policies are consistent with one another and also in accordance with the law.  I have seen many policies on-line which are outdated or problematic.  If you don't "own" the policy and are not prepared to live by it, then it can create much more trouble than it is worth.  

    We have begun to create a series of stand-alone policies on issues which are at the forefront of debate and which can protect an employer's interests.  I would love to hear from my readership on the question of whether it would be beneficial for you to have bilingual, English-Spanish policies available.  Watch for a followup email to announce the availability and pricing of these documents.

     If you have a manual, then this is an excellent time to review and update the contents.  To add an anti-discrimination or internet usage policy, which might not be contained in your current documentation, you can opt to purchase a separate policy and obtain signature acknowledgment from your workers.  For issues of this importance, a signature on a stand-alone document, rather than an attestation that an employee has read 100 pages of policies, can be even more powerful protection in the event of litigation.

     For questions about employment law, personnel manuals, how to discharge a worker or other labor related matters, please contact former Judge Ruth Kraft at RKraft@Kirschenbaumesq.com or (516)747-6700 ext. 326.  Judge Kraft is also available for speaking engagements on a variety of employment law subjects.

Judge Ruth Kraft

RKraft@KirschenbaumEsq.com  

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