Guns in the Workplace (4/11)

We have several employees who are hunters, and they sometimes leave their rifles in their cars at work.  We are a little nervous about having guns in such close proximity to our offices, and we do ban guns inside our offices.  But, can we also prohibit our employees from having guns in the parking lot?

Most employers ban guns and other weapons from their offices, plants, and warehouses to help prevent incidents of workplace violence and potential accidents involving weapons.  However, a question often arises about guns kept in an employee’s parked car.  Employees will argue that they have legal permits to carry the guns and should be allowed to keep them in their cars for convenience and even safety, regardless of whether they are allowed to bring them inside their workplaces.  As a general rule, though, it is up to the employer’s policy unless you are in a state that specifically allows citizens to keep their guns in their cars.      Most states that permit citizens to carry guns do not regulate whether employers can restrict guns on their property.  Accordingly, in those states, employers can prohibit the possession of firearms or other dangerous weapons in the workplace as well as in parked cars in their parking lots.        In a few states, however, these rules may violate laws that allow employees to carry guns onto their employer’s property.  For example, in Kentucky, employers may not prohibit workers from keeping guns in their locked cars on company premises.  Similarly in Minnesota, while employers may ban guns as long as they prominently post conspicuous notices at every entrance, they may not prohibit the lawful possession of firearms in their parking areas.  In Arizona, employers may not establish or enforce a policy that prohibits a person from lawfully transporting or storing a firearm that is locked in a vehicle, and Florida prohibits employers from discriminating against an employee for, or prohibiting an employee from, having a firearm in a locked car in an employer’s parking lot.  Georgia, Louisiana, Oklahoma, and Utah have similar protections for gun owners.  In contrast, Ohio allows private employers to prohibit the presence of firearms on their property or in motor vehicles owned by them if they post a sign in a conspicuous place that prohibits persons from carrying concealed firearms on that property.        Because of the varying state laws and potential legal challenges to employer gun rules, you should consult local and state laws for any restrictions or compliance requirements.  If your state does not prohibit employers from restricting guns in employer-provided parking lots, you may implement a policy prohibiting guns in the parked cars.

Five Ways the dol Makes It Easier for Employees to Sue You (3/11)

Big Brother may not be watching you, but your employees (and their future attorneys) are.  Five recent initiatives that empower employees show the DOL's proactive stance and could be an indication that more employers will find themselves defending claims.

Recent actions by the Department of Labor (DOL) point to the same outcome:  more claims against employers.  Five recent initiatives by the DOL indicate that the agency is serious about rooting out employers that may be violating laws implemented by the DOL, such as the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).  In the last two years, the DOL has added more investigators, launched a Web site to educate employees about their rights, encouraged employees to keep separate time records, partnered with a lawyers’ group to help employees find attorneys, and provided an online enforcement database publicizing claims against employers.  Find out below what these five initiatives are, and the steps you can take to ensure you are complying with the complex wage and hour requirements and to prevent claims against your organization.  1.     DOL added 350 field investigators in the last two years.  In March 2009, the DOL was on the receiving end of a scathing report by the General Accountability Office (GAO), known as the “congressional watchdog” because it investigates how the federal government spends money.  The GAO found that the DOL responded inadequately to wage and hour complaints, “leaving low wage workers vulnerable to wage theft.”  The report specifically cited “sluggish response times,” a “poor complaint intake process,” and “failed conciliation attempts,” among other problems.  As a result, the Secretary of Labor promptly added 250 more field investigators and reaffirmed her commitment to protecting “working families.”  She then quietly added (i.e., without a press release) an additional 100 investigators sometime in 2010, bringing the total number of new investigators to 350.  The DOL has not yet issued complaint statistics for either Fiscal Year (FY) 2009 or 2010, but it is likely that the number of complaints and wages collected on behalf of employees have increased thanks to the extra field investigators. 2.     “We Can Help” Web site.  In April 2010, the DOL launched a new Web site, which according to an agency press release is a national campaign by the DOL to bring “justice to nation’s working poor.”  The campaign is placing a special focus on reaching employees in low-wage industries at risk for wage and hour violations such as construction, janitorial work, hotel/motel services, food services, and home health care.  The Web site contains information on workplace rights, but also is focused heavily on providing information on how to file a complaint with the DOL’s Wage and Hour Division.  (You can view the Web site online at http://www.dol.gov/wecanhelp/.) 3.     The Work Hours Calendar.  In October 2010, the DOL began encouraging employees to keep separate time records by providing the “Work Time Calendar” for employees (online at http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdf).  The calendar was launched with little explanation or fanfare, just a notice in the October 14, 2010 DOL newsletter indicating that the calendar was available for employees “to help workers make sure they are properly paid at the end of the work week.” More ominously, the newsletter brief also pointed out that “[t]his information would prove invaluable during an investigation where an employer has failed to maintain accurate employment records.”      The Work Hours Calendar counsels employees to record when they arrive at work, actually start working, stop working, leave work, take leave, and take meal breaks and other breaks.   It closes with what appears to be a call to action to employees to file complaints:  “You work hard, and you have the right to be paid fairly.  It is a serious problem when workers in this country are not being paid every cent they earn.  All services are free and confidential, whether you are documented or not.  Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD.”  Interestingly, the DOL did not publicize the new calendar to employers directly, but instead posted it on its “We Can Help” Workers’ Rights page (online at http://www.dol.gov/wecanhelp/workersrights.htm).      4.     DOL and American Bar Association “Bridge to Justice” program.   In what the DOL has correctly described as an “unprecedented collaboration,” the DOL and the American Bar Association (ABA) have partnered to provide employees who file wage and hour complaints with access to attorneys who may be willing to pursue claims on their behalf.  Specifically, if a wage and hour claim cannot be resolved by the DOL or if the DOL declines to pursue the claim, the employee will be referred to the ABA’s Approved Attorney Referral System.  Prior to this partnership, the DOL simply told workers that the Wage and Hour Division was declining to pursue their claims further and that they have a private right of action under the FLSA or the FMLA, without providing any support on how to file a private action.        Now, the DOL will provide employees with a toll-free number to call the ABA referral service, and they then will be advised on ABA-approved attorneys in their area who can assist them with their claims.  In addition, the DOL will provide the employee with a form to request relevant documents from his claim, including the employee’s statement about the claim, the Wage and Hour Division’s back wage computations for the employee, and copies of any documents the employee provided to the DOL investigator.  The DOL has provided more information on the referral system online at http://www.dol.gov/whd/resources/ABAReferralPolicy.htm. 5.     DOL’s Enforcement Data 1.4.  Like the Work Hours Calendar, this online database (available at http://ogesdw.dol.gov/) was launched with little publicity, but its potential to create havoc for employers is impressive.  The site provides enforcement data on wage and hour, safety, and federal contractor violations by companies and as recorded in the DOL database.  According to the opening page of the site, the database is intended “to make the enforcement data, collected by these agencies in the exercise of their mission, accessible and searchable, using common search criteria, by the public.  It intends, also, to engage the public in new and creative ways of using this data.” This last statement should be of most concern to employers.  The enforcement data can be accessed not just by employees, but also by attorneys looking for class action claims or unions trying to find out about workplace violations and conditions that they can exploit in an organizing campaign.  And, just in case there is not enough data to be mined on this site now, the DOL is planning on adding access to Environmental Protection Agency violations as well as other federal and state enforcement databases. Five Steps to Counter the Five Initiatives    Taken together, the above DOL initiatives paint a picture of a decidedly employee-friendly (and unfortunately, employer-unfriendly) enforcement agenda.  You can now expect more claims filed both by the DOL and private plaintiffs’ attorneys, thanks to the addition of 350 investigators, the introduction of the ABA attorney referral system to the DOL’s claims mechanism, and public access to the new enforcement database.  So, what can you do to help prevent becoming a target of the DOL’s latest enforcement efforts?  Here are five steps you can take immediately to limit wage and hour violations: 1.      Pay on time and completely.  Employees whose paychecks are late, or who are not properly paid for breaks and overtime, may have legitimate complaints under the FLSA.  Be very careful before delaying a paycheck or making an unusual deduction.  Nonexempt employees must be paid for all time “actually” worked, so be sure you understand which hours count as paid working time.  Pay special attention to trouble areas such as time spent waiting to be called to duty, meal breaks where work is performed, activities that are preliminary and postliminary to work, and other “off-the-clock” work. 2.     Get your exemptions in order.  The FLSA exemption classifications are largely defined by what a worker does, not by salary or title alone.  So make sure your exempt employee’s job duties meet the FLSA definitions.  The amount of time spent on specific duties usually is a meaningful guide in determining employees’ primary duties.  In addition, make sure exempt employees are not subject to wage deductions that jeopardize their exempt status. 3.     Keep accurate, complete records.  Incomplete or incorrect records can spell disaster if you are confronted with a compliance audit.  The FLSA generally requires that you keep most records related to employee wages for at least two or three years.  But, when in doubt, you are best advised to hang on to a document rather than tossing it out.  And, be accurate.  When your employee records are inaccurate or incomplete, the DOL and courts will rely on employee testimony to establish the proper number of hours worked.   4.     Do not retaliate.  The FLSA specifically protects employees who make a complaint or provide information during an investigation.  So, implement and enforce a strict “no retaliation” policy and make sure managers do not appear to be targeting any employee who has filed a claim or who participates in an investigation. 5.     Audit your pay practices regularly.  If you have not undergone a full-scale wage and hour audit in the last 12 months, you should make this a priority.  You should focus on independent contractor classifications, exemptions, proper payment for all working hours, and overtime calculations.  These issues cause the majority of claims filed with the DOL.  And, if your organization is in one of nine low-wage industries identified and tracked by the DOL in its complaint proceedings, you definitely should be auditing your practices even more regularly.  These industries include agriculture, daycare, restaurants, garment manufacturing, guard services, health care, hotels and motels, janitorial services, and temporary help. For more information on wage and hour issues, see Hours of Work Chapter 207.