labor lawAdivision of labor law center

Employees on light duty or with physical restrictions must be permitted to work overtime on the same basis as other employees. In a recent settlement between United Airlines and the EEOC, the agency questioned an employer limiting overtime for employees who are on medical restrictions or limited to light duty.

Many employers would think that when a worker is under physical limitations, or has a disability, it would be obvious that the employee should not work overtime. However, the EEOC disagrees.

Under the ADA, or Americans with Disabilities Act, employees on light duty are entitled to work overtime if they are physically able to do so, the EEOC ruled.

In the case against United Airlines, employees on light duty were not permitted to work overtime, even when there was plenty of overtime work and it was being offered to employees who were not on light duty. The court ruled that this was a form of discrimination based on the employee’s physical disability under ADA.

United Airlines, based in Chicago, is one of the largest U.S. air carriers with nearly 3,000 flights per day to more than 200 domestic and international destinations from hubs in Los Angeles, San Francisco, Denver, Chicago and Washington, D.C.

The United Airlines case involved Samuel Chetcuti, a “storekeeper” working for the airline in San Francisco. The EEOC argued that the airline’s policy of not offering overtime to workers who were on light duty had a disparate effect on the income of disabled workers, because they were more likely to be on light duty.

For example, Chetcuti had epilepsy, which prevented him from operating heavy machinery and working at heights. However, it did not restrict the number of hours that he could work. But because Chetcuti was on light duty for his regular work schedule, he was barred from working lucrative overtime offered to others in the same job. The EEOC ruled that this was illegal employment discrimination based on disability.  

EEOC San Francisco Regional Attorney William R. Tamayo said, (more…)

The U.S. Department of Labor or DOL announced on January 15, 2009 that Sandia Corp. has agreed to pay more than $2 million in back wages for unpaid overtime.

In an interesting wrinkle, the Albuquerque employer apparently tried to avoid overtime payments for non-exempt employees by setting no fixed payroll week.

Under the federal FLSA or Fair Labor Standards Act, employers must pay an employee overtime when the employee works more than 40 hours in the payroll week.

Information on the FLSA requirements for overtime are included on the federal minimum wage poster that every employer must prominently display in the workplace.

By not having a fixed payroll week, Sandia averaged the employees’ hours over two or more weeks. Under the FLSA, an employer can establish any fixed payroll week that the employer likes. The payroll week can run from Sunday to Saturday, or from Monday to Sunday, or from Thursday to Wednesday. Under some circumstances, an employer can change the payroll week, as long as employees are given advance notice.

However, the employee’s workweek must be a fixed and regularly recurring period of 168 hours, (more…)

One new 2009 FMLA regulation clarifies the issue of overtime under FMLA. Under the new regulation, when overtime is mandatory, an employee can use their FMLA leave to work only 40 hours per week, provided the FMLA has been approved and all the required paperwork is in place.

However, when overtime is voluntary, if the employee declines, the time does not count as FMLA leave under the 2009 U.S. Department of Labor regulations.

Suppose Susan works in a retail clothing store. She is pregnant, and has been approved for intermittent FMLA leave. During most of the year, overtime is voluntary in the store. In October, Susan’s boss requests that she work 7 hours of overtime during the week. Susan declines. Since the overtime is voluntary, the 7 hours are  not counted towards Susan’s total 12 weeks of FMLA leave.

However, in November and December, overtime is mandatory at the store where Susan works, due to the busy holiday shopping season. All employees are expected to (more…)

An important provision of the new FMLA regulations permits employees to substitute paid leave for unpaid FMLA. This is a major departure from the previous regulations, which permitted an employer to prohibit the use of paid vacation by employees on FMLA.

According to the U.S. Department of Labor, an employee can substitute paid leave benefits for unpaid FMLA, as long as the employee follows the employer’s terms and conditions regarding those benefits. (However, the terms and conditions should be previous established, preferably in writing, and must be non-discriminatory.) The employer has a responsibility to inform employees of the terms and conditions of the paid leave policy or policies.

For example, a company may have a policy that paid vacation must be requested in writing at least 4 weeks in advance. When Jennifer goes into labor on January 15, she can immediately take FMLA. However, she will need to comply with the (more…)

A significant change to the FMLA regulations affects how employers must track FMLA leave. This is the fourth in a continuing series of articles on the new FMLA regulations issued by the U.S. Department of Labor, which go into effect  on January 16, 2009.

Under the old regulations, an employer had to track FMLA leave using the shortest period of time that their payroll system could track. If the payroll system rounded to the quarter-hour, the employer was required to permit the employee to use 45 minutes of FMLA leave, or 2.25 hours of FMLA leave, on a particular day.

The new FMLA regulations in their entirety can be found in the 201 pages of the November Federal Register.

Under the 2009 regulations, employers may track FMLA leave using the shortest increment that the employer uses to track other forms of leave, such as (more…)