James Seaman

Thursday, 21 October 2004 07:44

Premium pay puzzle

Employers may be setting themselves up for trouble by focusing too closely on the new federal regulations defining "white collar" overtime pay exemptions and forgetting about state law.

The federal Fair Labor Standards Act and its accompanying regulations establish a minimum threshold for determining who is entitled to overtime pay. If a state establishes requirements that are more employee-friendly, employers must meet those requirements.

A statistical breakdown of how the states approach overtime pay gives a hint to the problems awaiting employers, particularly if they operate in more than one state. Fifteen states have no overtime statute; six have statutes that do not apply to employers subject to the FLSA; and four have statutes covering only state employees. Six states plus the District of Columbia rely on FLSA definitions of overtime exemptions. The remaining 19 states, including Pennsylvania, have overtime tests that are different from the new federal tests.

The overtime exemption for certain computer professionals in Pennsylvania highlights the problem. Despite the FLSA and its new regulations, Pennsylvania employers must still follow the state rule: Employers must pay otherwise exempt computer professionals on a "salary basis" before they can claim the professional exemption from overtime pay for those employees. Here's why.

Pennsylvania long ago adopted the federal "long test" for determining the exemption for professional employees, including computer professionals. As a result, Pennsylvania employers historically enjoyed the luxury of using essentially the same definition, regardless of whether the question of eligibility for exemption arose under the FLSA or Pennsylvania law.

One aspect of the long test was whether the employee was paid on a salary basis, which requires (with limited exceptions) that the employee receive a guaranteed salary for any work week in which he or she performs any work, regardless of the number of days or hours worked or the quality of the work performed.

In 1990, Congress eliminated this requirement for certain computer professionals, as long as they were paid at least $27.63 per hour. But Pennsylvania never amended its own law to bring it up to date with this change.

As a result, computer professionals in Pennsylvania who are paid by the hour, regardless how high the hourly rate, are still eligible for overtime.

Businesses should consult with specialists in state and federal overtime rules to make sure that they are complying with these overlapping -- and sometimes contradictory -- requirements.

James G. Seaman is an attorney with the law firm Eckert Seamans Cherin & Mellott. Reach him at www.escm.com.

Monday, 22 July 2002 10:07

Law Briefs

In this age of computerized information, a business’s classified files may be retrieved intentionally by hackers, or inadvertently by the innocent actions of its employees. Information uncovered in either way can be damaging if it ends up in the wrong hands.

The latter problem was highlighted in a case recently decided by the 8th U.S. Circuit Court of Appeals, Kempcke vs. Monsanto Co.

The facts of this case are fairly straightforward. While deleting old files from the hard drive of a computer issued to him by the company, the employee found documents discussing plans for a reduction in force and the need to find opportunities for “young promotables.” (The computer had been used previously by a high-ranking human resources officer.) The employee complained to his supervisor, suggesting that the documents proved age discrimination. When the supervisor responded with a demand that the employee return the documents, the employee replied that the company should deal with his attorney on that issue. The employee was subsequently fired for insubordination, based on his continued refusal to return the documents.

The court distinguished this case from others involving theft of confidential documents because the employee innocently discovered the documents on the computer assigned to him.

In addition, the court concluded that the employee’s actions in raising the existence of the documents with his employer and requesting an explanation constituted protected activity. According to the court, presentation of the documents to counsel, and referring to counsel the request that the documents be returned, was “at least arguably oppositional or litigation activity, because it placed documents that might evidence discrimination in the hands of a legal professional who would litigate the issue on (the employee’s) behalf if he could not resolve the matter informally with (the employer).”

The case was returned to the trial court where a jury will decide whether the employee’s conduct was protected activity and whether the decision to terminate the employee constitutes unlawful retaliation.

How can a business protect itself from confidential information getting into the wrong hands?

  • Evaluate the current computer- security system.

  • Ensure that employee access is restricted to only those files that pertain to the employee’s job.

  • Ensure that obsolete files are properly deleted from computer systems.

  • Create a policy regarding the inadvertent discovery of sensitive information and communicate it to all employees.

  • Implement and enforce a policy that specifically prohibits the consideration of any improper factor when making personnel decisions.

— James G. Seaman

Court stands by wrongful-discharge claims restrictions

The Pennsylvania Superior Court recently reinforced the Commonwealth’s restrictive approach to recognizing wrongful-discharge claims. In spite of the court’s decision in Hennessy vs. Santiago, however, businesses must continue to be wary when terminating employees.

The plaintiff in the Hennessy case was employed as a rehabilitation counselor. She was called to the local hospital,where she was informed that a resident of her employer’s clinic had been raped by another resident. In spite of the fact that the rape already had been reported to the police, the plaintiff conducted her own investigation, called the rape hotline, and then called the district attorney. Ultimately, she personally took the victim to the district attorney’s office, where all agreed that the victim should file charges. Then the perpetrator was arrested.

Shortly afterward, the plaintiff was fired from her job.

In her subsequent lawsuit claiming “wrongful discharge,” the plaintiff alleged that she was fired for assisting the victim. She argued that she had an affirmative duty to report the rape and, therefore, her claim fell within the “public policy” exception to the employment-at-will doctrine. The court, however, dismissed the plaintiff’s claim, finding nothing in the law to support her argument that she had a legal or ethical duty to report the rape.

The three recognized “public policy” exceptions are:

  • The employer requires the employee to commit a crime;

  • The employer prevents the employee from complying with a legal duty;

  • The employer discharges the employee under circumstances specifically prohibited by statute, (e.g. the Civil Rights Act or the Americans with Disabilities Act).

Recognizing the employment-at-will law and its exceptions will help businesses avoid costly and prolonged litigation. Business owners should have all employee handbooks and other policies and documents reviewed to ensure that they do not alter the at-will status of workers. In addition, when hiring and terminating employees, business owners should make it explicitly clear that staffers are employees-at-will.

Stress from co-workers—no ADA claim

May an employee seek a job transfer to another position within the company where he or she would not be subjected to prolonged and inordinate stress by co-workers as an accommodation under the Americans with Disabilities Act?

The 3rd Circuit Court of Appeals answered the question with a resounding “no” in the case of Gaul vs. Lucent Technologies Inc. In that case, the court found that this special consideration “would impose a wholly impractical obligation on...any employer,” and, therefore, was unreasonable as a matter of law.

James G. Seaman is an attorney with Eckert Seamans Cherin & Mellott, LLC, a national law firm based in Pittsburgh.