OFF-THE-CLOCK WAGE CLAIMS ON THE RISE

A very recent decision in a federal district court case highlights the risk of off-the-clock wage claims. Andrews v. Weatherproofing Technologies, Inc., C.A. No. 15-11873-TSH (D. Mass Sept. 28, 2017) (Hillman, D.J.).  In that case, a Massachusetts roofing contractor employed roofing technicians who inspected and repaired roofing systems that the employer installed for its customers.  The technicians were typically in the field during the day and claimed that at night they would complete paperwork related to the day’s work.

The technicians sued the employer, claiming that they were owed overtime and straight wages for hours spent at home completing the paperwork.  The employer defended the claim asserting that it maintained a policy directing that all hours were compensable, including time spent generating paperwork.  The employer also claimed that human resources had never received any written complaints from employees that they had been required to perform off-the-clock work.

For employers, liability for off-the-clock wage claims will arise if the employer had actual or constructive notice that off-the-clock work occurs.  In this case, the court declined to dismiss the technicians’ claims, pointing out testimony from some of the technicians that they complained verbally about doing paperwork at home and not being paid for that work.  Based on this testimony, the court concluded the case would require a trial to resolve.

For employers, the lesson is that vigilance is required to make sure employees cannot plausibly claim that they were allowed or required to work off-the-clock.  Simply maintaining a policy—such as the policy in this case requiring employees to document all hours worked—is generally not sufficient to foreclose possible claims.  An employer should take steps to affirmatively educate employees that off-the-clock work is not allowed.  The risk of employers failing to do so is that these type of claims will continue to be problematic.
 

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WORKER’S REQUEST FOR MULTI-MONTH ADA LEAVE AFTER FMLA LEAVE LAWFULLY DENIED

A vexing problem for employers is the period of time it must allow for leave.  A very recent decision from the United States Court of Appeals for the Seventh Circuit demonstrates that courts and administrative agencies continue to disagree regarding an employer’s obligation to provide extended leave beyond that mandated by the Family Medical Leave Act (FMLA). Severson v. Heartland Woodcraft, No. 15-3754 (7th Cir. Sept. 20, 2017) (Sykes, J.). 

The plaintiff, a production employee, went out on FMLA leave because of back pain.  On the last day of his leave, he underwent back surgery and requested three more months of leave.  The employer denied the request and terminated employment.  The employee was invited to reapply when he was medically cleared to resume work.  When the employee recovered, he sued the employer under the American with Disabilities Act (“ADA”) claiming the employer had failed to reasonably accommodate his disability by granting him the extended leave to recover from back surgery.

The Seventh Circuit ruled that requiring that the employer provide multi-month leave beyond the period mandated by FMLA was not a reasonable accommodation and that the employer had no obligation to accommodate a request for such lengthy additional leave.  Accordingly, the employee’s ADA claim was dismissed, though the Equal Employment Opportunity Commission had urged the court to impose a requirement that the employer provide extended leave. 

For employers, dealing with requests for leave beyond FMLA leave should entail a careful consideration of the anticipated duration and the employer’s ability to extend the leave without undue hardship to its operations.  Although this particular case ended favorably for the employer who refused to grant three months of additional leave, a one-size fits all approach is not optimal when dealing with long-term leave issues.

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Employment Law Overview

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