Many employers responded to rising harassment liability prudently by requiring supervisory employees to attend mandatory anti-harassment training. And the statistical evidence suggests that supervisor training and other preventive measures have made a positive impact. For instance, recently sexual harassment charges filed with the EEOC have steadily declined each fiscal year.
While sexual harassment lawsuits were the hot employment law topic a decade or two ago, the emerging area creating business liability is clearly wage and hour law. The number of wage and hour lawsuits filed under the Fair Labor Standards Act (FLSA) has significantly increased — and there are a number of reasons employers should fear the news is only going to get worse. The numerous reasons for this include:
- A strong governmental effort is being made to expand the federal overtime rights by changing the regulations defining overtime eligibility;
- The issue of wages is a high-profile political issue that will receive a great deal of public attention in the upcoming election;
- Wage and hour violations do not require proof of motive or intent;
- Violations of wage laws are easier for plaintiffs to prove, and harder for employers to defend against;
- Employers have the burden of proper recordkeeping and documentation;
- The FLSA has a very employee-friendly attorneys’ fees provision;
- The amounts due are often fairly easy to calculate or estimate, and wage and hour violations frequently affect entire classes of employees rather than just individuals; and
- Unfortunately, compliance with wage law is deceptively complicated, leading to frequent mistakes by even well-intentioned employers.
Now is a critical time for employers to address wage and hour compliance. Employers should strongly consider incorporating basic training on wage and hour compliance into their supervisor training programs. There are a number of important wage topics that should be included into supervisory wage training programs, such as:
- The basics of state and federal overtime law;
- The employer’s policies and practices relating to timekeeping and payroll;
- The supervisor’s role and responsibilities toward managing employee timekeeping and records;
- How to (legally) control overtime;
- How to spot and prevent potential “off the clock” claims, such as working during unpaid breaks or before or after their shift without appropriate compensation;
- How to handle employee questions and complaints regarding pay issues.
Based on current political and economic atmosphere, there is little doubt businesses will be subjected to increasing wage and hour liability over the next few years. Developing a strong supervisory training program is a critical component to any effective solution designed to address the upcoming changes in wage law and the rising legal and business risks.