HoosierEmploymentLawyer.com

“When to fire?” is a question I am often asked.  Employers always ask if there is enough evidence or if it is time yet to fire.  Stretching facts or firing based on assumption is never a good idea.

For example, years ago two bank tellers were in an island kiosk where they handled drive-up customers when a significant amount of money came up missing. Both tellers adamantly denied the theft.  Both also recalled a money bag on the floor of the booth, which was a violation of policy.

Following my advice, the two were not fired for theft as there was no proof of that, but both did admit to the policy violation of money on the floor.  That was the reason for the bank to terminate both, and neither could deny the rationale.

Similarly, in the sexual harassment context, an employee might admit to telling dirty jokes but adamantly deny much worse alleged conduct.  Consider firing the employee for the admission of telling a subordinate several dirty jokes rather than the conduct which is hotly disputed.

Listen carefully to what the employee admits and use that as a basis of the termination.

Employers should take note of three important recent events that could affect their leave of absence policies. To learn more about these events and how they could affect your business, please click here.

Probably not.  Most transportation companies consider their dispatchers salaried employees and not eligible for overtime.  But now may be a good time for these companies to review the reasons that they consider their dispatchers “salaried,” because some dispatchers may be entitled to overtime.

In the recent case of Iaria v. Metro Fuel Oil Corp., a New York federal court, deciding an overtime claim under both the federal Fair Labor Standards Act (“FLSA”) and New York state law, recently held that a group of dispatchers could proceed to trial on the issue of whether they are subject to the “administrative” exemption under the FLSA.  Although the court noted that dispatchers generally qualify under the exemption, it was not satisfied that the plaintiff-dispatchers’ actual duties made them subject to the exemption.

Employees employed in a “bona fide administrative capacity” are not subject to, and exempt from, the FLSA’s overtime provisions, provided that they are paid a salary of at least $455 per week and their primary duties are “the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers” and they “exercise . . . discretion and independent judgment with respect to matters of significance.”  While the parties conceded that the plaintiffs were paid a sufficient salary, they disputed whether the dispatchers’ duties involved the level of discretion and judgment required by the FLSA.

To support its position that the plaintiff-dispatchers were not entitled to a trial, the defendant-employer provided evidence that its dispatchers “ensured that the defendant’s product (fuel) was delivered timely and efficiently.”  The court found that that this general job description was not in line with the type of administrative functions contemplated by the FLSA, such as those performed by accountants, personnel officers, and computer programmers.  The court also questioned whether the dispatchers exercised discretion and independent judgment on “matters of significance,” and whether they were required to use judgment that was “more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources.”

The court acknowledged that the Wage and Hour Division’s Field Operations Handbook provides that the Division’s investigators should consider dispatchers as acting in a bona fide administrative capacity when they are required to handle emergency situations or make choices between using company trucks or those of a contract carrier.  However, the court found that the plaintiff-dispatchers provided evidence that they had to seek the approval of their supervisor before taking most actions, which negated the discretion required by the “administrative” exemption.  Accordingly, the court held that a trial was needed to determine whether the dispatchers were entitled to overtime.

Although transportation companies typically assume that their dispatchers should be salaried employees, they should not rely on assumptions or what other companies do.  The standards for an FLSA exemption need to be satisfied for each employee.  This means that companies should examine, or re-examine whether the actual job duties of their salaried dispatchers satisfy the “administrative” or some other FLSA exemption.  As the Iaria case demonstrates, unless dispatchers use independent judgment and exercise discretion on matters of significance, a court may find that they are entitled to overtime, or at least a trial.

Joseph N. Gross, Partner, an OSBA Certified Specialist in Labor and Employment Law, and Patrick O. Peters, Associate, are members of Benesch’s Labor and Employment Practice Group and practice in the area of labor and employment law, including wage and hour compliance.  For more information concerning compliance with any aspect of the FLSA, please contact Joe at 216.363.4163 or jgross@beneschlaw.com, or Pat at 216.363.4434 or ppeters@beneschlaw.com.

If you work in HR or payroll in Indiana, you probably know that Indiana is very pro-employee when it comes to pay.  There are two separate statutes which require pay to be made in a timely manner (IC 22-2-5-1 and 22-2-9-1).  If you don’t pay timely, you can be sued for three times the amount plus attorney fees.

However, there are times when you might not pay an employee even when you know these laws exist.  For example, let’s say you know that a certain employee has stolen $7,500 from you through misuse of a company credit card.  You are certain of the thefts and you have a bullet-proof policy against this misappropriation.  Let’s also say you owe the employee $2,000 in a final paycheck. In this instance, I have advised clients to strongly consider telling the stealing employee, “Pound sand, we aren’t paying you. Feel free to sue for the wages and the treble damages because we intend to sue you for the thefts and treble damages under the Indiana crime victim’s act, which also provides for treble damages and attorney fees.”  So. the employee may sue for three X $2,000 but you will counterclaim for three X $7,500, both plus attorney fees.

Below is a note which consultant Michael Murphy and I recently received from a manager at an industrial company. He questions the link between job titles and overtime pay procedures. Please check out his note, and follow the link for my answer.

“Dear Mark: I am a mid-level manager in a large service industry company and have recently received several complaints from some subordinates that they are not being properly paid overtime. These subordinates all have the job title of “manager” and have never been allowed to receive overtime pay. Most do work, however, 45 – 50 hours per week processing claims and other similar work. What should I do?”

Please click here for our answer.

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