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SHRM Newsletter- FLSA Turns 75 But Not Looking to Retire
Posted on Jun. 4, 2013

This is Utah SHRM Legal-mail no. 2013-10 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 






- FLEX ACT BILL IN FLUX                                                                                       


FLSA TURNS 75 BUT NOT LOOKING TO RETIRE: This year we observe the 75th anniversary of passage of the Fair Labor Standards Act (FLSA). FLSA requires overtime and minimum wage pay to certain employees and regulates employment of minors. It was enacted in 1938 and designed as a tool to get the country out of the Great Depression. The idea was that if employers were penalized (i.e. by overtime pay requirements) for working employees too long, they would be encouraged to hire more people to avoid the penalty. Yet, FLSA still has vitality today and is a “must know” law for those involved with employment law compliance. Most FLSA disputes today involve misclassified (i.e. listed as exempt when they should be nonexempt) employees seeking overtime pay and hourly workers claiming they were not paid for all hours worked or restaurant workers claiming they were not properly paid under tip credit rules. The law is explained and interpreted (there are lots of written regulations explaining it) by the United States Department of Labor (DOL) and enforced by DOL and private party lawsuits. Perhaps you can celebrate this occasion by reviewing your own job descriptions and ensuring that your employees are correctly classified as exempt or nonexempt? Here is link to a nice DOL summary of the most common exemptions:

EEOC ISSUES NEW ADA GUIDANCES: The Equal Employment Opportunity Commission (EEOC) has issued some new informal guidance documents highlighting various types of reasonable accommodations employers should consider providing to persons with cancer, diabetes, epilepsy and intellectual disabilities. You can find the new guidances here: Regarding cancer, the EEOC noted that some employees may need one or more of the following accommodations: leave for doctors' appointments and/or to seek or recuperate from treatment; periodic breaks or a private area to rest or to take medication; modified work schedule or shift change; permission to work at home; modification of office temperature; permission to use work telephone to call doctors where the employer's usual practice is to prohibit personal calls; and/or reallocation or redistribution of marginal tasks to another employee. Listed typical accommodations for diabetes include: a private area to test blood sugar levels or to administer insulin injections; a place to rest until blood sugar levels become normal; breaks to eat or drink, take medication, or test blood sugar levels; leave for treatment, recuperation, or training on managing diabetes; and/or modified work schedule or shift change. Employees with epilepsy may need one or more of the following accommodations: breaks to take medication; leave to seek or recuperate from treatment or adjust to medication; a private area to rest after having a seizure; a rubber mat or carpet to cushion a fall; adjustments to a work schedule; a consistent start time or a schedule change (for example, from the night shift to the day shift); a checklist to assist in remembering tasks; permission to bring a service animal to work; someone to drive to meetings and other work-related events; permission to work at home; and/or reassignment to a vacant position if the employee is no longer able to perform the current job. Finally, the EEOC’s suggested accommodations for persons with intellectual disabilities include: providing someone to read or interpret application materials for a person who has limited ability to read or to understand complex information; demonstrating, rather than describing, to the applicant what the job requires; modifying application tests, training materials, and/or policy manuals; replacing a written application test with an "expanded" interview; reallocation of marginal tasks to another employee; training or detailed instructions to do the job, including: having the trainer or supervisor give instructions at a slower pace, allowing additional time to finish training, breaking job tasks into sequential steps required to perform the tasks and/or using charts, pictures, or colors; extra training; detailed daily schedules; job coaching; modified equipment or schedules and/or reassignment. Under the ADA, reasonable accommodations are required unless they would create an undue hardship. Each situation must be analyzed in a case-by-case manner.

LACTATION BIAS = SEX DISCRIMINATION: A federal appeals court in Texas has ruled that firing a woman because she is lactating/expressing milk is unlawful sex discrimination under federal law, including the Pregnancy Discrimination Act of 1978 (PDA). The PDA protects working women against discrimination on the basis of pregnancy, childbirth or a related medical condition. This particular case involved a plaintiff who claimed that she was fired after giving birth once she inquired as to whether she would be able to pump breast milk when she returned to her job. The appeals court noted the biological fact that lactation is a condition distinct to women who have undergone a pregnancy. Accordingly, under federal law, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, because men as a matter of biology could not be fired for such a reason.

RECENT VERDICTS AND SETTLEMENTS: A Utah construction company has settled race discrimination claims by agreeing to pay $230,000 in damages, revise/update its policies, conduct training and hire an external ombudsman to investigate discrimination claims. The plaintiffs in the case claimed they were subjected to racial slurs and inappropriate jokes. A national bank has agreed to pay $400,000 to 14 former employees who claimed they were the victims of disability discrimination. The bank employees were fired automatically at the end of leave when they could not return to work. The EEOC contended that instead of automatic discharge, each employee’s circumstances should have been considered to determine if any reasonable accommodations (e.g. additional leave without undue hardship or reassignment) were possible for the employees.

FLEX ACT BILL IN FLUX: The United States House of Representatives recently passed HR 1406, called the Working Families Flexibility Act, and the bill is now before the United States Senate for consideration. This bill (copy available at: ) allows private employers to offer comp time to employees in lieu of overtime cash payments and allows employees to cash in comp time owed to them. Currently, private employers can only give comp time in lieu of overtime if all is done during the same work week. Public employers have the ability to allow comp time outside the workweek in some circumstances. The bill faces strong opposition from the Democratic-controlled Senate and President Obama. Nevertheless, please consider contacting your Senator and expressing your viewpoint on the bill. If you are a national SHRM members, you can do so here:

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012