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Working Families Flexibility Act… Is It Actually Flexible?

The House of Representatives recently passed the Working Families Flexibility Act of 2017. Should the bill also pass in the Senate, the White House has announced that President Trump’s advisers plan to recommend he sign it into law.

What is the Working Families Flexibility Act?

If this bill becomes law, it will amend the Fair Labor Standards Act and change current rules regarding overtime pay in the private sector. In lieu of monetary overtime pay, under the bill, an employee can opt to receive compensatory time off equivalent to no less than one and one-half hours for each hour the employee works overtime. This option to receive paid time off has been available in the public sector for several years as a means of cutting costs.

The bill further provides that employees cannot accrue more than 160 hours of compensatory time. In order to opt for compensatory time, the employee must have worked at least 1,000 hours during a minimum 12-month period of continuous employment with the employer.

Working Families Flexibility ActWould Working Families Truly Have “Flexibility” Under the Act?

According to proponents of the bill, families would have more flexibility and control over their work schedules. They could use their compensatory time any way they choose, and take time off to tend to personal and family matters. Advocates of the bill could argue it empowers working families who often find it difficult balancing work and home life.

But opponents of the bill question the “flexibility” the proposed law would supposedly give working families. The primary concern is that an employee’s boss has the final say as to when the employee can take time off. An employee might waive overtime pay, expecting to take compensation time later (such as for a child’s recital or scheduled family trip), but the reality is requests for specified time off could be declined. If time off (and when it can be taken) is ultimately in the hands of the boss, how much flexibility can really be provided to working families under the Act? There are times when employers may even require an employee work overtime. If overtime pay is waived, it goes back into the pockets of businesses. Yet, use of earned compensatory time, when the employee desires to take it, is subject to the boss’ approval.

Why is a Paid Time Off Option Feasible in the Public Sector, and Why is it Dangerous in the Private Sector?

The answer to this is simple: unions. Unions create a layer of protection that is not as readily available in the private sector. Under the bill, in order for an employee to select compensatory time in lieu of overtime pay, there must be a written agreement if the employee is not represented by a union. But what if the employee is not fully aware of the consequences of surrendering earned overtime pay? The purpose of a collective bargaining agreement set forth between unions and employers is to preserve employee rights, including overtime pay, and lay out well-established procedures for grievances. It is a formal, structured agreement designed to protect, not just one person, but a group of individuals from foreseeable employer misconduct. This systematic safeguard would not be available to an unrepresented employee in the private sector who enters into an agreement waiving overtime pay. At a minimum, the thought of this is alarming, and given the questionable benefit of “flexibility” proposed by the bill, this type of an agreement seems fraudulent. If this bill becomes law, hard-working—unrepresented—families across the country, struggling to make ends meet, would be surrendering their right to overtime pay.

There is a provision in the bill which prohibits an employer from coercing an employee into taking compensatory time, and the bill’s proponents might argue that allowing agreements between employers and employees provides a protective measure against such coercion. Regardless, the for-profit nature of the private sector would undoubtedly make coercion inevitable, and employees without proper representation would become vulnerable.

So as the bill sits in the Senate, it is worth pondering whether this proposed law truly helps working families, or hurts them by providing an option that, at the outset seems fair, but actually later strips them of hard earned money. Though flexibility via compensatory time seems like a nice option for employees, perhaps maintaining legally mandated overtime pay is the best option for protecting working families and minimizing their potential loss.

Religious Liberty Executive Order, Is It Something to Fear?

Recently, President Trump signed a new executive order titled “Presidential Order Promoting Free Speech and Religious Liberty.” While the order is not a surprise, what came out of the White House was very different from expected. Early drafts of the order, leaked by White House aides, included sections which permitted discrimination based on faith. These provisions would have almost been unconstitutional, and several organizations promised lawsuits if the order takes effect.

However, while Trump is no stranger to signing overreaching orders into effect which are later found unconstitutional, this most recent order is different. Instead, this order fits into another common theme for Trump executive orders: symbolic orders that basically do nothing on a legal level. After the order was published, the ACLU said that they didn’t think it was worth the time or resources of challenging the order. They described it as “an elaborate photo-op with no discernible policy outcome…[which] does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process.”

The order has three parts that could have some effect: 1) the government will enforce existing laws protecting religious freedom; 2) the agencies of the executive branch will temporarily not enforce a law preventing churches from participating in political campaigns–as much as is allowed by law; and 3) in the future the Secretary of Health and Human services will introduce regulations on already existing law regarding the contraceptive mandate of the Affordable Care Act (ACA). That may sound like an order that stands to substantially alter the face of the law. But a closer look will show that is not the case.

Vigorous Enforcement of What’s Already There

The first section of this new order promises that “the executive branch [will] vigorously enforce Federal law’s robust protections for religious freedom.” So basically, the executive branch promises to enforce the laws that are already in effect.

So what does this section accomplish or mean? Effectively nothing. It does not guarantee protection to federal employees who want accommodations over religious beliefs. It changes no laws or approaches. It promises no concrete changes. It does actually nothing. So, with that out of the way, let’s move on to sections that have marginally more impact on the state of the law.

Religious LibertyRelaxing the Johnson Amendment

The next section of the order promises that “all executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.” This by itself is so vague, it can’t be relevant. But, the section goes on to specifically target the Johnson Amendment.

The Johnson Amendment is an element of the code used by the Internal Revenue Service. It says that a 503(c) tax-exempt company–basically any non-profit whether secular or non-secular–may not “directly or indirectly [participate] in, or [intervene] in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

The law itself already saw very infrequent application. But, the order states that the Department of the Treasury will take adverse action under the Johnson Amendment against religious organization for talking about politics from a religious perspective as little as possibly permitted while still following the law. This could mean anything from a relaxed standard about prosecution to nothing as the Johnson Amendment itself is law. It is most likely meant to imply that the IRS will be less likely to penalize of revoke 503(c) status for religious organizations or persons who are openly involved in politics. Including speeches or monetary contributions.

No matter what the order says, it’s actual effect has limits. No executive order can overcome or repeal an act of congress such as the Johnson Amendment. Nor can it repeal any existing regulations. The most it can do is relax the approach to this law temporarily. But doing so provides no benefit to organizations normally covered by the Johnson Amendment. This is because any religious organization which takes advantage of the relaxed enforcement–despite the uncertain level of protection the order provides–will just find itself in hot water in a few years upon the inevitable repeal under a new president.

But what exactly does this section of the order do? Pretty much nothing. It doesn’t have an effect, relaxing the enforcement of the Johnson Amendment is an actual change in approach if the Department of the Treasury changes how it handles Johnson situations. However, no lawyer could recommend taking advantage of such tenuous promises without an actual repeal of the law.

Targeting Women’s Access to Contraceptives

The final relevant section of the new order states that “the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services will consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under” the ACA. So sometime in the future, agencies working under Trump could possibly add regulations dealing with the provisions of law that already exists. Like the ACA which needs employers with more than a certain number of employees to provide insurance plans offering no-cost birth control to their female employees.

To understand exactly what this part of the order does, it’s important to first understand the famous Hobby Lobby case of recent years and it’s history. In 1990, the Supreme Court ruled that you cannot break a law that applies the same to everybody as an expression of your religious beliefs. In response, Congress passed the Religious Freedom Restoration Act (RFRA). Under RFRA, practice is any exercise of religion whether compelled by, or central to, a system of religious belief or not. The RFRA is still in force and, although it is unconstitutional to apply it to state laws, it still applies to laws passed by the federal government.

This means that the ACA, in particular its provisions regarding contraception, were subject to the RFRA. This was the central argument in Hobby Lobby. The company was saying that providing contraceptives to its employees violated their RFRA rights as their religion didn’t support contraception. The Supreme Court decided that, in the case of closely held corporations (corporations owned by a small number of people with no public stock) RFRA meant that the ACA couldn’t require them to provide coverage with contraception. After this, the Obama administration added rules which allowed insurance companies to pay for contraceptives instead of the companies.

That’s the current state of the law already, the order is basically saying that it will try and make sure the law is properly enforced through new regulations. That being said, the Secretary of Health and Human Services has already announced quick follow up on this part of the order. It’ll be important to keep an eye on exactly what regulations spring forth from this section as they could easily make the jump from following the state of the law–no matter how unfortunate that state is–to improperly barring women from access to health services above and beyond what the law allows.

What it Does vs. What it Implies

In general, the right to free practice of religious or any other right is not supposed to limit others, but protect yourself. But this order does not offer protection to federal employees, even when they claim religious objection. Like the West Virginia County Clerk currently being sued for a practice of verbally assaulting homosexual applicants for marriage licenses. However, it has the potential to embolden such abusive actions. This order accomplishes as close to nothing for the cause it claims to champion that it can without being pure grandstanding. But at the same time has the potential to endanger the rights of women and the LGBT community through its implications. In the end, this is an order where everybody loses.

Disney to Pay Out $3.8M in Wage-an-Hour Lawsuit

A little over a week ago saw news of an immense payout as Disney agreed to pay $3.8M to employees of their many resorts and timeshares.  The agreement comes after the United States Labor Department began an investigation into Disney which concluded that they routinely failed to pay employees for around fifteen minutes of work performed before and after their shifts.  Disney was also accused of deducting the expenses of uniforms from employees pay in such a manner that it would occasionally make it so that an employee received less than the minimum wage.

This agreement covers an enormous number of employees, well over sixteen thousand workers.  Thus, this payout isn’t quite as immense as it initially appears–coming out to a bit over $200 per employee.  However, it’s a good example of one of the most common types of legal action in the U.S. –wage-an-hour conflicts.  With this in mind, we’re going to look at exactly what wage-an-hour is and how it works to help you protect your rights as an employee or protect your business from costly lawsuits.

How Wage-an-Hour Works

Wage-an-hour lawsuits generally fall into a couple of categories.  First, where an employee isn’t being paid minimum wage–an obvious violation.  An extension of these lawsuits is what happened in the case of Disney, not paying employees whatsoever for hours worked.  Clearly, zero dollars is below the minimum wage anywhere in the country .  Second, where a company fails to pay their employees overtime hours which they are owed.

DisneyThe Fair Labor Standards Act (FLSA) guarantees each employee will be paid the federal minimum wage throughout the country, currently $7.25 an hour.  However, almost every state has their own individual law which is quite similar to the FLSA.  Minimum wage obviously varies a fair bit from state to state, as does the approach each state takes to enforcing minimum wage.  However, while the legal procedures of pursuing a case may vary a bit state to state, all the cases come down to establishing that you were not paid minimum wage for time worked.  This includes salaried positions where your salary paid divided by your hours worked comes out to less than minimum wage.  There are a couple exceptions to this general rule under the FLSA and many state laws: where tips compensate for what would otherwise be pay below minimum wage, student learners, and employees in training.  Not all of these exceptions are mirrored on the state level, and many of them are quite controversial in effect as they essentially allow pay well below a living wage.  Where an employer fails to pay minimum wage, an employee may sue them–or in many states file an action with a government organization specifically designated to handle such actions–and receive the pay they are due within the time period of the statute of limitations along with potential additional damages through state statutes.  Disney’s agreement bypassed any legal action, instead simply agreeing to pay a fixed amount in reparation for their failure to pay for all the hours their employees worked.

The second common wage-an-hour action, failure to pay overtime, does not particularly apply in Disney’s case.  However, it is important to know as cases dealing with unpaid overtime are extremely common.   Overtime generally includes any hours in excess of 40 in a week, 8 hours in a day, or being required to work more than 6 consecutive workdays.  Where you work overtime, an employer must pay generally pay you time and a half–although some states have situations where an employer must pay an even higher multiplier of your base wage.  There are situations where an employee may be exempt from overtime–most commonly where they receive pay of over $455 per week and have duties -usually within specific statutory categories–which require a certain amount of independent decision making in performing work.  Each state has a different approach to exactly when a position is overtime exempt, and more recently it’s been an issue targeted at the federal level as well.

The Importance of Keeping Complete Records

Disney’s case focuses on failure to pay for time worked, and there was apparently a fair bit of evidence to this point.  However, Disney is rather well known as a particularly litigious company.  So you might be asking yourself, why didn’t Disney fight it out?  The answer may be in the record-keeping practices of the resorts the employees worked at.

The FLSA requires employers to keep accurate records of the hours their employees work as well as wages earned.  These recordkeeping requirements can become more involved from state to state, and even the FLSA has some more specific requirements.

This requirement to keep proper records has sunk many an employer’s chances in a wage-an-hour case.  This is because, where an employer fails to keep proper records, employees can rely on representative evidence to establish the hours they’ve worked. This evidence only needs to be sufficient for a reasonable inference that the employees’ evidence is an appropriate approximation of the hours they worked.  For this reason, it is incredibly important for an employer to keep legally compliant records.  If they don’t, their employees basic approximations of time worked in what format they can provide it–from testimony to crudely kept notebooks–will determine what hours the court will consider that they worked.

Apparently, Disney’s resorts failed to keep statutorily compliant records of the hours worked by many of the employees in the class action lawsuit brought against them.  This likely was the straw that broke the camel’s back when it came to deciding whether to fight the case against them.  Without properly maintained records their chances of success dropped precipitously, they likely simply decided that around $200 per employee wasn’t too much to pay in light of the expenses of litigation and their chances of success.  So as an employer, remember, if bad record keeping can sink Disney it definitely will do you no favors.  As an employee pursuing a wage-an-hour case, if it sank Disney it’s worth determining whether your employer has kept sufficient records if you believe you have been paid unfairly.

Dress Code: Trump’s Alleged Requirements for Female Staffers is Surprisingly Legal

Long before he became President of the United States, President Donald Trump was obsessed with his public image, despite his apparent inability to get a decent haircut, and the image projected by those surrounding him.  This obsession with how he and his staff look has not gone away since he took office, but it has come under increased scrutiny. Now, thanks to a few comments made by one of President Trump’s campaign assistants, people who have already derided President Trump’s misogynistic ways have a new reason to hate him because he prefers that his female staffers dress “like women.” This particular preference has reportedly led to women feeling pressured to eschew pants in favor of dresses when in President Trump’s political workplace.

It is legal for an employer to have a dress code and even grooming standards. For certain industries, these restrictions are necessary for safety, such as prohibiting hospital employees from wearing jewelry that might interfere with their ability to assist patients or requiring construction workers to wear steel-toed boots. In other industries, these restrictions are part of the image presented by the company, which is the case with Disney and its infamous grooming requirements for theme park employees.

If Women Must Dress Like Women, Then Men Must Dress Like Men

dress codeEven though dress codes and grooming standards are legal, they are subject to anti-discrimination laws on both the federal and state level. In terms of laws prohibiting gender discrimination, employees of one gender cannot be required to adhere to far more regulations than employees of another gender. For instance, a restaurant cannot require male wait staff to wear three-piece bespoke navy suits while allowing female wait staff to dress however they want, regardless of whether that clothing choice is a ball gown or dirty old sweatpants.

To that end, though, a company can require its employees to dress within certain perimeters, if those perimeters are comparable between genders. A company can require all of its employees to dress in jeans and t-shirts or in suits and dresses. The courts have already made it clear that the dress code can, to the average person, appear to be sexist, so long as it is equal. An example of a dress code that may appear to be sexist at first would be cocktail waitress outfits. These outfits are notoriously skimpy, and many people label them as sexist because they promote the objectification of women. However, so long as the male counterparts of the waitresses have a similarly demanding dress code, a dress code demanding skimpy outfits is perfectly legal.

Since the courts have determined that requiring women to dress a certain way is not discriminatory, so long as it is comparable to what the men must wear, it is not discriminatory for Donald Trump to request that women wear feminine attire, as long as he makes a similar request of men to dress in masculine attire. It does appear that men who work for Donald Trump are required to wear suits complete with ties. Requiring a man to wear a suit with a tie is comparable to making a woman wear a dress or other such feminine business attire. Thus, Donald Trump’s requirement for women to dress “like women” appears to be perfectly legal because he requires his male staffers to essentially dress like men, meaning that the burden for both genders is equal.

Dressing Like a Woman Does Not Mean Wearing an Ivanka Trump Dress

Now, if Donald Trump were to start requiring his female staff to wear Ivanka Trump-brand dresses, which he might start doing to increase the sales of his daughter’s clothing line, then he might wind up running afoul of the law. This is because making employees wear a specific item of clothing from a specific manufacturer or brand is tantamount to making them wear a uniform like those worn by McDonald’s employees. An employer can require the employees to wear uniforms if it is used to promote the brand or for any reasons why a dress code can be implemented. Additionally, under federal law, an employer can take the money required to cover the cost of the uniform out of the employee’s paycheck or require the employee to buy the uniform, the latter method being the one preferred by retail stores that have their employees dress in the store’s clothing. However, the amount used to cover the cost of the uniform cannot be so high that the employee is left with a wage that is below their state’s minimum wage. With the average Ivanka Trump-brand dress costing anywhere between $50 and $150, some lower-level staffers for the White House may end up facing clothing bills that would exceed their paychecks. Thus, if Donald Trump does end up requiring female White House staffers to wear dresses from his daughter’s clothing label, then he would likely be legally obligated to cover the cost of the dresses because they are very specific clothing items and their prices most likely make them cost-prohibitive to some employees.

Of course, requiring his female staffers to wear dresses from Ivanka Trump’s clothing line may lead to other problems for Donald Trump and his staff because of his position in the federal government, which are problems that President Trump may already be dealing with outside of the media’s scrutinizing eye due to his preference to see male staffers in Trump-brand ties. Employees of the executive branch are free to wear whatever clothing brands they want, but they cannot actively promote the brand that they are wearing. Doing so is seen as a “misuse of position,” and is prohibited by a regulation put forth by the Office of Government Ethics. Kellyanne Conway, a counselor to President Trump, was recently accused of violating this regulation when she talked about Ivanka Trump’s clothing line on a television program and encouraged people to buy clothes from the brand. Often, employers have their employees wear clothing from only one brand in order to promote that brand, especially where the employees are working for a clothing brand in a retail store setting. Even though the White House is not a clothing retailer, requiring all of its female employees wear the same brand of clothing may give the impression that it is promoting that particular brand and, thus, a misuse of the White House’s position in the federal government.

It is also a misuse of position if a holder of a public office uses their government position for their own private gain or the private gain of their friends or family. If President Trump were to put all of his female staffers into Ivanka Trump-brand dresses at their own expense, he would be using his position as President to provide financial gain to his daughter as a private business owner. Additionally, if President Trump were to use federal funds to pay for the dresses, much like a traditional private employer would use company funds to cover the cost of uniforms, then Ivanka and her clothing line would be receiving a direct financial gain from the federal government as a result of her dad being President.

Even if Donald Trump were to pay for the dresses out of his own pocket, the female staffers would only be wearing the dresses as a result of Donald being President, so Ivanka would be experiencing a personal financial benefit from the White House female staffers wearing her company’s dresses courtesy of her father’s position. Ergo, Donald Trump would be misusing his official role as President of the United States in two ways if he required his female staffers to wear Ivanka Trump’s dresses: by promoting his daughter’s company and by providing her with private financial gain.

Ultimately, It Is Allowed

While it may come off as sexist, Donald Trump can require his female staffers to dress “like women,” so long as he continues to hold his male staffers to the same general standard for grooming and dress codes. However, if the dress code becomes more restrictive by Donald Trump making his female staffers all wear dresses from one brand, especially if the dresses come from Ivanka Trump’s clothing line, then such a restrictive dress code may be illegal and in violation of federal government regulations. If you are facing a dress code at work that seems to be unfairly restrictive or heavily biased toward one gender, then you may want to talk to an employment lawyer about your rights as an employee in the workplace.

Uber is Under Fire, Again, for Sexual Harassment

Uber, the online transportation company whose app allows its users to hire private drivers, is making headlines again. About a month ago, angry customers began tweeting the #DeleteUber hashtag after Uber decided to suspend surge pricing during a taxi strike at JFK airport in protest of President Trump’s immigration ban. Customers accused Uber of strikebreaking and taking advantage of the immigration ban in order to promote itself.

The #DeleteUber hashtag has again appeared on social media following a claim of sexual harassment by a former employee.  Susan J. Fowler, a former Uber engineer, released an essay reflecting on her two year employment. She described it as “a strange, fascinating, and slightly horrifying story,” recounting a time when a manager propositioned her for sex.

Uber’s Response to Sexual Harassment Allegations

UberFowler claims that she complained to Human Resources about her manager’s request for a sexual relationship. In response, H.R. told Fowler that this was his first offense and that they were not going to reprimand him for his behavior. Instead, they made Fowler feel like she was in the wrong and encouraged her to transfer to a new team or risk getting a bad review from her manager. Feeling like she had no other choice, she ultimately transferred teams. Fowler later discovered the manager had propositioned several female Uber employees for sex and H.R. turned a blind eye to his behavior because he was a “top performer”.

In response to Fowler’s essay, Uber CEO Travis Kalanick has hired two attorneys to independently investigate the accusation.

What is Sexual Harassment?

Sexual harassment is a type of employment discrimination consisting of unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

There are two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when a supervisor or an authority figure requests sex, sexual favors or a sexual relationship in exchange for either not firing or punishing the employee or in exchange for favors, such as a promotion or raise.

Hostile work environment harassment occurs when there are frequent or pervasive unwanted sexual advances, comments or requests. It can also occur when there is other verbal or physical behavior, like sexual jokes, displaying inappropriate offensive material (such as watching porn on your computer screen in the workplace), or persistent unwanted interactions, such as asking for dates continually.

Other Allegations of Sexual Harassment

According to Fowler’s essay, there were several female employees who complained that the same manager propositioned them for sex and when these women reported the behavior to H.R., they were told it was the manager’s first offense, just like Fowler. Since Fowler’s essay surfaced, another female employee has come out and said her manager groped her breasts at a company retreat in Las Vegas. Other Uber female engineers have acknowledged that Uber has a systemic problem with sexism. There may be more stories of sexual harassment that have not been publicized due to fear of retaliation or non-disclosure clauses in their employment contracts.

Can Fowler Sue Uber for Sexual Harassment?

While Fowler certainly can sue Uber for sexual harassment, she is unlikely to prevail. Her essay recalls an instance where her superior requested she engage in a sexual relationship with him. The sexual conduct did not appear to be made a term or condition of her employment at Uber. Further, Fowler was neither promised a benefit if she acquiesced, nor threatened harm if she refused. For this reason, a claim of quid pro quo sexual harassment would not be found.

Neither would a court of law find Uber guilty of a hostile work environment. Fowler describes a single incident. One of the key elements of hostile work environment sexual harassment is that the conduct must be both severe and pervasive. In other words, the behavior must last over time, not just be a singular incident. It is important to note that the conduct must be pervasive with regard to a particular employee and continuous over time. Even though Fowler’s manager propositioned other women at Uber for sex, it is unclear whether he made sexual advances to any one employee more than once and over a long period of time. What we do know is Fowler was approached once. Without more evidence of continuous harassment, hostile work environment sexual harassment would not be found.