labor lawAdivision of labor law center

The Kentucky Supreme Court recently ruled that in some cases, an injury that occurs during the employee’s commute is covered by workers’ compensation, if the activity benefits the employer.

In the test case involving an AirTran Airways pilot, the employee was based in Atlanta but commuted as an air passenger to his home in Kentucky, making 8 to 10 round trips per month. Under an arrangement common for airlines, AirTran made free or low-cost fares on other airlines available to commuting employees.

The AirTran Airways pilot was a passenger who was killed when the Comair flight he was on crashed while taking off.

In Fortney v. AirTran Airways, even though the pilot was a passenger who was not working, on a different airline at the time of the crash, the Kentucky Supreme Court ruled that his loss of life was a valid workers’ comp claim against AirTran Airways. This was true despite the fact that the employee was not being paid and was not (more…)

The U.S. Department of Labor is interpreting the regulations regarding exempt salaried employees much more strictly, and taking action against employers who stray over the line. In particular, the exempt status of outside salespeople and administrators is coming under fire.

The situation is expected to get worse, not better. The U.S. Department of Labor has a backlog of opinion letters. As soon as a Wage and Hour administrator is confirmed, that backlog will be signed, and carry the force of law. Courts must defer (more…)

Effective July 1, 2010 even the smallest employers in South Carolina are covered by the state’s tough immigration law. Employers with 100 or more workers were covered beginning July 1, 2009 but compliance for smaller companies was delayed.

The South Carolina Illegal Immigration Reform Act prohibits a business from employing undocumented workers. Smaller employers must now follow additional steps to very the work status of new hires.

A free online training program for employers is available here.

Any employer who violates the law is subject to strict penalties including suspension of the business license. Repeated violations would result in the not being allowed to hire any workers in the future, essentially forcing the employer out of business.

South Carolina employers must verify the legal work status of all newly hired employees. An employer can use E-Verify to meet this requirement. E-Verify is a joint venture between the Department of Homeland Security, Social Security and Customs and Immigration, that verifies and confirms the authenticity of documents submitted at hiring. The program is free and (more…)

The U.S. Department of Labor recently ruled that employees must be paid to don and doff protective gear. In addition, the agency ruled that putting on special work clothing or protective gear may trigger the continuous workday, meaning employees would have to be paid for all time after that event.

The Wage and Hour Division has long determined that an employee need not be compensated merely for changing clothes. For example, a server in an expensive restaurant who arrives in street clothes and changes into his tuxedo before work, is not entitled to payment for the time spent changing. However, the issue of changing into protective clothing is more complex.

The Department of Labor has waffled on this issue in the past. The agency issued letters in 1997, 1998 and 2001 that suggested employees were entitled to payment for time spent putting on protective gear including plastic arm guards, polar sleeves, mesh gloves, rubber boots, wrist wraps, shin guards, and mesh aprons. The 1997 memo specifically addressed protective gear worn in poultry processing plants.

Two opinion letters issued during the George W. Bush administration overturned that directive. In those letters, dated 2002 and 2007, Wage and Hour used a convoluted argument based on a 1982 dictionary to “prove” that protective clothing including face masks and bullet-proof vests is “clothing” and time spent changing was not compensable.

The June 16, 2010 opinion letter issued by Deputy Administrator Nancy Leppink overturns that decision. Leppink argues that protective gear used in the meatpacking industry today, including impermeable gloves and face masks, is far more elaborate, and employees should be paid for changing time.

Leppink also notes that even when employees are not paid for changing into protective gear, doing so may trigger the beginning of a continuous workday – meaning the employees are entitled to payment for all time after that. An employee who changes into protective gear and then walks 10 minutes to a work station where he or she waits 15 minutes to begin the day, would be entitled to payment for the walk and waiting time under the FLSA or Fair Labor Standards Act.

Whether or not the courts will uphold Leppink’s opinion is yet to be determined. For the present, however, it is safer for an employer to pay employees for changing time, and to consider changing the beginning of a continuous workday.  

The Wisconsin smoking ban, which prohibits smoking in virtually every workplace, goes into effect on July 5, 2010. The 2009 Wisconsin Act 12 is more restrictive than many other state smoking bans. It requires business owners to enforce the non-smoking law, and provides greater penalties for business owners who fail to do so.

The Wisconsin non-smoking law prohibits smoking indoors in public places, including workplaces with two or more walls. This prohibits smoking in warehouses, auto shops, taverns, restaurants, sports arenas, theaters, private clubs and stores. Smoking is banned in all state and local government offices, all schools, and prisons. The law also bans smoking on public transportation and even in bus shelters.

Restaurants and bars may permit smoking in a designated outdoor area such as a patio or porch, as long as the space has only one wall. The state law permits smoking outdoors, even inches away from an open door or window.

Many states permit residents of nursing homes to smoke in certain designated areas. Wisconsin will not. All hospitals, clinics and nursing homes are included in the smoking ban.

The new law repeals an earlier statute that allowed a business owner to designate certain areas where smoking was permitted, such as private offices or an employee break room. Smoking is banned throughout the employer’s building, including cafeterias, break rooms, restrooms, vehicles, elevators and even (more…)