Cases filed under the Fair Labor Standards Act have been increasing over the past five years, according to recent research from law firm Seyfarth Shaw.
The law firm found that there has been a “steady increase” in the number of wage and hour type cases filed since 2008, with over 7,000 cases in the 12-month period between March 2011 and March 2012. In contrast, cases filed in the ‘90s through the early 2000s averaged about 2,000 a year, meaning the current level of lawsuits is approaching four times the number filed just a few years ago.
In an article originally published in the Blog of Legal Times, Seyfarth partner Richard Alfred speculated the recent rise in claims could be due to the difficult economic conditions and the rising unemployment rates, with those who lost their jobs exploring their legal options.
Alfred said that plaintiff’s lawyers sometimes target wage and hour law because it can be complex and difficult for employers to interpret—meaning unintentional errors may become extremely costly for the employer. Beginning in 2003, Alfred noted, a few large settlements were won in the age and hour arena, highlighting this area of law as one to target because of the relative ease of bringing class lawsuits against employers.
It doesn’t seem as if there will be a decrease in claims any time soon, so what should employers do to protect themselves?
- Stay updated with changes in legislation.
- Document, document, document. Accurate records are essential for your defense.
- Consult a specialized attorney if you have questions regarding FLSA compliance.
- Investigate and thoroughly assess employees’ complaints to ensure your practices are sound.
- Conduct regular audits.
You still may not be able to avoid claims, but by doing everything possible to safeguard against them, you can at the very least reduce liability from 3 years—for a willful violation—to 2 years.
In Symczyk v. Genesis Healthcare Corp. (2011) the Supreme Court will decide whether plaintiffs can invite others to join a suit, even once the employer has made an offer of judgment.
In the case, Symczyk, a nurse, claimed her employer made staff members work through lunch without compensation, violating the FLSA. Symczyk sued, and asked the trial court to invite other, similarly situated employees to join the case.
The employer tried to put a stop to the “invitation” aspect of the case by making a formal offer of judgment to end the lawsuit. The employer offered to pay all the alleged unpaid wages—approximately $7,500—and attorney fees and costs as determined by the court. While Symczyk didn’t dispute the offer was adequate, she did not accept it.
The employer argued that Symczyk should not be allowed to continue to prosecute the action on behalf of other employees, since the offer of judgment meant she no longer had a stake in the litigation.
Symczyk objected to the arguments and what she viewed as the employer’s strategic maneuver to “pick her off” before the court could notice other potential plaintiffs in the case.
The trial court, however, agreed with the employer and dismissed the lawsuit. Symczyk appealed, and the 3rd U.S. Circuit Court of Appeals agreed with her, stating that the employer had used the offer of judgment as “a tool for the strategic curtailment of representative actions.”
Whether the Supreme Court will agree that such tactics are impermissible will be decided later this year. Stay tuned for updates to the case.
Drug and alcohol abuse costs U.S. employers $120 billion a year, according to the National Institute of Health. And the American Council for Drug Education reports that substance abusers don’t just cost the employer a significant amount in lost productivity—they also contribute to increased health care costs and claims against the employer.
According to the Council, substance abusers are:
- Ten times more likely to miss work;
- 3.6 times more likely to be involved in on-the-job accidents;
- Five times more likely to file a worker’s compensation claim;
- 33% less productive; and
- Responsible for health care costs that are three times as high.
And substance abusers aren’t just a danger to themselves—they are responsible for a full 40 percent of all industrial fatalities.
If you thought it wouldn’t happen in your workplace, think again. Seventy percent of all abusers hold jobs. One worker in four between the ages of 18-35 has used drugs in the past year, and one in every three workers knows about drug sales in the workplace itself.
But supervisors are sometimes reluctant to take action against employees who abuse alcohol and drugs, worrying how the loss of a job will affect the individual. But looking the other way when you suspect substance abuse on the job is actually a form of enabling. And strict detection and enforcement policies serve to decrease abusing from those employees who already have a problem, as well as deterring others from drug and alcohol abuse on the job.
A recent 2012 study from the University of Buffalo’s Research Institute on Addictions, published in the Journal of Studies on Alcohol and Drugs, found that supervisor enforcement led to decreased use of alcohol and drugs in the workplace—and actually even decreased drug use outside the workplace.
“It’s only when employees think their supervisor knows how to detect substance use — and is willing to do something about it — that employees’ drinking and drug use on the job decreases,” said Michael Frone, one of the research scientists involved in the project. Frone noted that strong supervisor enforcement can also “reduce stress and improve morale among the majority of employees who do not engage in such behavior.”
To detect substance abuse in your organzation, here are the seven signs supervisors should watch for:
- Frequent, prolonged, and often unexplained absences
- Involvement in accidents both on and off the job
- Erratic work patterns and reduced productivity
- Indifference to personal hygiene
- Overreaction to real or imagined criticism
- Exhaustion or hyperactivity
- Dilated pupils, slurred speech, or an unsteady walk
Source: American Council for Drug Education “Facts for Employers”
Once identified, supervisors should make use of available workplace resources to assist and deal with employees who are abusing drugs and alcohol. These resources—which have a place in every organization—include a substance abuse policy, testing procedures, an employee assistance program and provision of leave for rehabilitation and treatment.
Previous longitudinal studies from Duke University and John Hopkins University have suggested that the higher the worker’s obesity category, the higher the rates of injury for the employee. A Gallup study found that obese workers are more likely to have two or three simultaneous chronic conditions than workers of normal weight, and a new HBO documentary, The Weight of the Nation, estimates the total cost to U.S. employers is about $12 billion a year.
The new study from NCCI expands on those findings, indicating that once injured, obese claimants’ workers compensation benefits are more than five times that of non-obese workers with comparable injuries and claims.
The recent findings highlight why it’s so important for employers to focus on wellness programs and supporting weight loss initiatives. Obesity affects about a third of the U.S. workforce, so efforts to reduce those rates among employees can have a significant return on investment, both in productivity and direct costs.
One Duke University Medical Center study found that obese workers had 13 times the amount of sick leave as other workers—but by implementing wellness initiatives, employers may be able to reduce these figures.
However, employers must caution against implementing programs that inadvertently discriminate against an individual or their disability. In fact, discrimination against applicants just for being overweight is common in the workforce, according to a 2012 study published in the International Journal of Obesity. In the study, hiring managers were shown resumes with an attached photo. The resumes were identical, but the photos were of the same six women, before and after weight loss surgery.
The research found that the pre-surgery pictures, showing an obese applicant were more likely to receive a negative rating on factors such as leadership potential, predicted success, likelihood to select, salary and total employment rating. In addition, the obese applicant was typically ranked lower than the same person after weight loss surgery.
Depending on your state, discrimination based on obesity alone is not necessarily prohibited. But obesity can be intertwined with a protected disability, meaning the kind of stereotyping found in the study may potentially violate the ADA. In addition, the researchers point out that by discriminating, employers lose a pool of talented, skilled workers. A better approach is to encourage workers to take care of their own health through targeted wellness and weight loss initiatives.
For more information, please visit us at www.laborlawcenter.com or call (800) 745-9970
On June 20, 2012, the Equal Employment Opportunity Commission announced a new development that will make it much easier for employers and attorneys to determine past precedent and prior case logic. The Commission stated it has now placed all appellate and amicus briefs for more than a decade on its website.
The briefs—which date back to the year 2000—will be searchable by key word or catchphrase, to allow employers to find information on specific topics related to issues they are dealing with. In a press release dated June 20, 2012, the EEOC noted employers could search phrases such as “reasonable accommodation diabetes” to identify related cases.
But you don’t have to stop there. Employers or attorneys interested in cases filed locally, for example, can search the database by a specific court. Other options to narrow the search include sorting by case name, type of brief or the specific statutes involved.
The database will remain a relevant and current resource—EEOC confirmed that new briefs will be entered within weeks of being filed in court.
The database is housed on the EEOC’s external website. To search cases, employers can access the direct link here.