Ways to Avoid Wage and Hour Claims Against Employer
A Few Practical Pointers on How to Avoid Wage-and-Hour Lawsuits
Wage and hour lawsuits are probably some of the scariest for employers, and collective or class action claims are the worst. Here are a few practical pointers to help you try to stay out of the courtroom and avoid such claims.
1. Keep good records of employees' wages, when they started work, hours they worked, and break time. Consider having a policy that requires employees to notify their supervisors or other members of management when time cards don't accurately reflect whatever records they're keeping. Also, when employees are working off the clock, be aware that federal and state laws may differ when it come to meal or rest breaks and stay up to date on regulations (especially if you have operations in California).
2. Consider having a complaint or grievance procedure for workers who feel they are not being paid appropriately. Maybe you can head off a lawsuit or investigation at the front end this way.
3. Have policies clearly stating that a non-exempt employee’s work-sponsored iPhone or BlackBerry should be left in the office. Also instruct hourly employees that they should not check their email at home and should carefully track the time worked when they are out of the office.
4. Educate managers about how to keep good time records and make sure employees are not being required by supervisors to work off the clock, despite a policy against such work. You won’t be protected if you tell your employees you don't want them to perform work after hours, but a manager or supervisor sends workers emails late at night and expects a response. What you say needs to comport with what you're doing and vice versa.
5. Examine independent workers' contracts to determine if they establish an employee relationship. Again, this is an area ripe for claims, and for which employers are regularly getting hit with audits by DOL, the TWC, or in lawsuits and slapped with wage and hour claims. Don’t fall for the temptation of trying to call someone an independent contractor when they won’t meet the legal tests.
6. Consider whether to have arbitration agreements with employees, and if so, include specific language that collective or class-action wage-and-hour claims are covered by the agreement. A recent U. S. Supreme Court decision upheld such a class-action waiver provision in an arbitration agreement as a ban on collective-action wage and hour claims.
Adair Buckner is an Amarillo attorney with Buckner & Cross, L.L.P. She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-322-7777 or firstname.lastname@example.org. This material is not intended to be legal advice. The contents are intended for general information purposes only.
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