From the Editor
Labor Law and Unions 2007 survey results
While the results to HR Hero Line's 2007 Labor Law and Unions survey are similar to those from our March 2005 Unions survey, there are some subtle differences. Here are the highlights of the results from the 2007 survey.
- 64% of respondents said that HR is the person or department responsible for staying current on union issues.
- 59% of respondents say their company isn't unionized, compared to 55% in 2005.
- 62% say that their company's stance on being unionized is to avoid it at all costs, compared to 65% in 2005.
The top 3 methods for preventing union organization have changed somewhat.
- Treating all employees fairly and addressing complaints quickly was No. 1 on this year's survey at an overwhelming 82%. In 2005, treating all employees fairly was the No. 1 choice (61%) and addressing employee complaints quickly was No. 4 at 43%.
- In 2005, giving employees a voice/involving them in decisionmaking and training supervisors to be effective liaisons between employees and management tied for second place. This year, giving employees a voice/involving them in decisionmaking was No. 3 (57%), while training supervisors was No. 4 (42%).
- And the method for avoiding unionization that has taken the biggest leap forward since 2005 is offering competitive pay and benefits. In 2005, only 43% of respondents named that as one of the top 3 methods of avoiding unionization. This year it was selected by 60% of respondents.
Go to www.hrhero.com/survey/survey.cgi?laborlaw2007 to see the survey results.
Wendi Watts
HR Hero Line Editor
WebEditor@HRhero.com
Feature
Traders, geeks, and managers: Who gets overtime?
Excerpted from Louisiana Employment Law Letter written by attorneys at the law firm Jones Walker
by Jane H. Heidingsfelder and Jennifer L. Anderson
If you've never reviewed the U.S. Department of Labor's (DOL) website, www.dol.gov, you should. The agency posts information on its website about employers' obligations under the labor and employment laws within its jurisdiction, including one that frequently causes consternation for employers — the Fair Labor Standards Act (FLSA).
The information provided on the website includes not only the statute and the regulations promulgated by the DOL but also the agency's interpretive guidance and opinion letters explaining its views about FLSA issues, such as whether certain types of employees are exempt or nonexempt.
That information can serve as a valuable resource for you to become familiar with the Act and as a first check on many of the basic FLSA issues that arise in your business.
You should keep in mind, however, that FLSA issues can be complex, and you may need assistance from a labor attorney to properly interpret and apply the Act in a particular situation.
Additionally, as with any governmental agency, the DOL's interpretive guidance and opinion letters aren't binding on courts and, in fact, may differ from decisions rendered by courts.
So it's important to make sure you consult a labor attorney when attempting to interpret or apply the FLSA, particularly in the context of any decision to classify employees or to establish or change pay policies and procedures.
The DOL recently issued a few opinion letters that help clarify its view about whether certain types of employees are exempt or nonexempt, which employers will find useful if they have financial services, information technology, or supervisory employees.
Figuring out exactly what a trader does
In the wake of several multimillion-dollar settlements between investment firms and financial services employees (i.e., traders and brokers) over the issue of whether they're exempt from overtime, the DOL recently weighed in on the topic.
It said that so long as an employee's main duty isn't simply selling investments to the company's clients without any independent analysis, judgment, or advice, "registered representatives" in the securities industry may be exempt from overtime and minimum wage requirements under the FLSA.
Whether an employee fits within the exemption depends on his specific job duties, salary, and method of compensation, however.
Brokers who provide advice to clients after analyzing and interpreting their investment objectives may be exempt if they earn at least $455 per week on a salary basis.
That amount may not be subject to reduction based on the number of hours worked, however, and can be subject only to the permissible deductions for other salaried employees. If the employee's main job merely is to sell stocks to clients without analyzing a client's individual circumstances, he wouldn't be exempt.
That decision is good news for investment firms that are faced with the potential of paying substantial overtime to highly compensated employees previously classified as exempt. It's important, however, to keep in mind that brokers and other financial services employees don't qualify automatically for the exemption based on their job titles alone.
You need to analyze the actual job duties and responsibilities of each employee before determining exempt status, and any questions should be reviewed by a labor attorney to ensure compliance with the FLSA. Wage & Hour Opinion Letter, November 27, 2006.
Not all computer geeks get overtime
Don't be lulled into a false sense of security that all technology personnel are exempt from receiving minimum wage and overtime simply because there's a specific exemption for computer employees.
The DOL recently concluded that certain IT support specialists (or "help desk" employees) aren't exempt from the FLSA's requirements and must be paid minimum wage and overtime.
Help desk employees, in most companies, are the people you call when you're having problems with your computer at work. They mainly are responsible for diagnosing computer problems as requested by other employees.
Their responsibilities are to conduct problem analysis and research, troubleshoot, and resolve computer or network problems in person or by using remote-control software. Help desk employees usually don't need any special degree or education to perform their jobs.
The DOL reasoned that help desk employees who mainly deal with problem-solving and not with more complex matters such as designing and developing software aren't exempt. That opinion again shows that the title of an employee's position alone doesn't determine exempt or nonexempt status.
Of course, the responsibilities of any help desk job may vary from one company to the next, so it's important to review the specific facts of each case when determining an employee's classification.
You need to pay close attention to the employee's specific job responsibilities, particularly those that he actually performs as opposed to those that may be in a written job description or other manual and that he never performs. Wage & Hour Opinion Letter, 2006 DOL-WH LEXIS 56, October 26, 2006.
Out of sight doesn't mean out of mind, or nonexempt, for managers
Does a manager have to be physically present and supervising employees in person to fit within the executive exemption under the FLSA? Not according to the DOL in a recent opinion letter. A manager qualifies for the executive exemption if:
- she's paid at least $455 per week on a salary basis;
- her main duty is management of the expertise in which she's employed;
- she customarily directs the work of two or more employees; and
- she has the authority to hire and fire employees (or her suggestions about such actions are given great weight).
If the manager satisfies that test but doesn't work in the same store or location as the employees she directs, she still can fit within the exemption.
She could be exempt if she's responsible for ensuring that company policies are carried out by employees. That can be done by interviewing, selecting, and training employees; setting and adjusting rates of pay and hours worked; directing the employees' work, even when done remotely; maintaining records; and disciplining employees.
If your manager meets all the other requirements of the executive exemption and doesn't work regularly with the employees she supervises, she still can be exempt from the FLSA's minimum wage and overtime requirements. Wage & Hour Opinion Letter, 2006 DOL-WH LEXIS 46, September 21, 2006.
Copyright 2007 M. Lee Smith Publishers LLC. LOUISIANA EMPLOYMENT LAW LETTER. LOUISIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Louisiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. The State Bar of Louisiana does not designate attorneys as board certified in labor law.
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Available to Employment Law Letter subscribers
- Should your IT employees receive overtime? DOL provides guidance
- DOL opinion letter: Registered representatives exempt from overtime
Other Resources
- State-specific workshops - FSLA
- A session on exempt and nonexempt employees will be presented at the Ohio Employment Law Summit
- HR Executive Special Reports: FLSA 2004 white-collar exemptions
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Tool: HR Sample Policies and Procedures
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theHRedge., Inc. to design a top-notch Policy and Procedure Manual for our Employment Law Letter subscribers.
We created this manual to be more than just a template of policies. It contains commentary on what you should consider including in your policies as well as practical advice and suggestions. Each policy is available in RTF format so you can save and edit the policy on your computer.
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