Latest / The FP 5: Five Things for Your 9-to-5 / Summer Workplace Pitfalls Every Employer Should Avoid
Transcript
- Becca Rainey: Welcome to the FP5, Five Things for your nine to five. We help employers make sense of the fast moving world of workplace law and compliance by breaking down topics into five parts. I'm Becker Raney from the Fisher Phillips content team. Longer days, lighter moods, and packed vacation calendars can make summer feel like the perfect time to loosen the reins. But for industries like hospitality, retail, and tourism, this season also brings peak demand and added operational complexity. And with that comes a spike in compliance challenges, from wage and hour issues to workplace safety risks. To help us unpack where employers can go wrong and how to get it right, We're joined today by Patrick Dalen. Patrick is a partner at FP in our Philadelphia office, where he co-chairs the compensation audit and counseling services team in our wage and hour practice group. Patrick, thanks for being on the show today. So you spent more than 12 years with the US Department of Labor before moving into private practice. Patrick Dalin: Thank you, Rebecca, for having me. Becca Rainey: What originally drew you to the labor and employment sector and how did your experience as a government attorney shape the way you advise employers today? Patrick Dalin: Yeah, so in law school, I participated in my school civil litigation clinic where we got to engage in actual civil litigation in some cases. And I actually got really lucky and I got to do a full trial. It was a divorce case, not an employment law case. But I came away from that experience knowing two things. One, I wanted to do civil litigation. And two, I didn't want to do it in family law. Good work for others, but not for me. And after law school, I got the opportunity to go work as a trial attorney for the US Department of Labor. The court part of that job with civil litigation, enforcement litigation for workplace safety cases. So OSHA and MSHA, the Mind, Safety and Health Act, ⁓ wage cases, including child labor, benefit cases, and some other things as well. So it gave me the chance to litigate cases right out of the gate. was litigating my own cases, which is what I wanted to do. And then this area of law, labor and employment. I've always been interested in workplace cases. ⁓ I've always been interested in learning things about different industries. I've had a million jobs in my life before becoming an attorney. So the opportunity just seemed perfect for me to learn lots of things about different workplaces and, you know, do civil litigation, which is what I wanted to do. Becca Rainey: So nowadays, you're helping companies proactively audit their pay practices and prepare for a potential government scrutiny. Having seen these issues from both the enforcement side and the defense side, what do you think most employers still misunderstand about the Department of Labor and how investigations actually unfold? Patrick Dalin: From my experience, think a lot of employers are surprised at how quickly an investigation can move at the outset. Right at the beginning, there's usually a request for large volumes of documents and data on a short timetable. In many cases, the employer has never had to pull this volume of information from its systems at this scale and may need help from vendors to do so. It could be very resource consuming right out of the gate. The days of say providing a sample of some hard copy records are dwindling if not completely gone. You know, the government understands that a lot of this type of stuff now is electronically stored. So knowing how to retrieve this information and to do it quickly, I think that's something that can catch a lot of employers off guard in these situations. On the flip side, I think the government also has sometimes a misconception here. Yes, this information is, tends now for most employers to be stored electronically. The records are there, they're stored, but retrieving them isn't necessarily, you know, you can't do it in a snap of your fingers, where sometimes I think that, you know, they may, they want the information faster than it could be obtained. So we're in this newer world of electronic storage. That's the world we're in now. I think both sides are still developing an understanding of what can be done there and how quickly it could be done. Another thing that I think catches a lot of employers off guard is that DOL investigators will oftentimes interview their employees or former employees. They'll oftentimes interview them without the employer knowing. They may interview them on the phone, at their home, meet them in a restaurant, again, without the employer's involvement. And a lot of times it can be disgruntled. Former employees or employees who speak with the investigators and they may make allegations or give an impression of the employer that's not supported by the facts. So, DOL may be coming in hot out of the gate with what might be a misunderstanding or a not complete understanding of the employer situation. With these two things in mind, both how quickly you need to provide information and other people telling the investigators things about the company, and you don't know who they are. The government won't oftentimes won't tell you who they are. They protect them behind the informants' privilege. They view this as very unfair, not being able to confront their accuser, so to speak, but that's the way it's typically done. So it's very important for employers to have a strategy how to respond to this within the bounds of how you can respond. And you want to respond proactively and try to correct the record as best you can as soon as you can. Becca Rainey: Right. And I think in those situations, it's very important to consult with legal counsel just because OSHA can come after you for potential retaliation against employees. ⁓ So just in these situations, I think it's mindful to ⁓ consult with counsel. ⁓ The other thing that I got from that takeaway too is to ⁓ ensure that your computer files are organized and that you know where they are. Patrick Dalin: Yes, ⁓ it oftentimes can be more complicated than I think some people assume. Becca Rainey: All right, so we're gonna dive into our five things. Our first thing. The first thing we see frequently employers get wrong is getting too casual with scheduling. Summer flexibility can boost morale, but it also creates real compliance risks under wage and hour laws. Patrick, how can employers balance flexibility with legal obligations when managing employee schedules for workers who are overtime eligible? Patrick Dalin: So, I think first it's important to keep in mind, you know, how things can go wrong. If you're spread too thin, if you're letting people ⁓ take off with short notice too often, you can end up having other employees working extra time, which puts them into overtime eligibility. You can have people working through their lunch breaks, perhaps with you not even knowing it, but that could end up with you having to pay them extra wages. So, I think you want to identify in advance as best you can. what would be your high volume times where you need a lot of coverage, schedule appropriately and communicate to the workers the importance that you're going to need them to be there during those times. If you're going to limit the use of PTO time, communicate that in advance as well. Becca Rainey: And what are the common hidden risks that happen during these long, very busy times? Like things like off-the-clock work, if that's even allowed, ⁓ or overtime miscalculations that employers frequently trip up on. Patrick Dalin: Yeah. So off the clock work for any non-exempt employees, you're required to keep track of their time. So ⁓ you want to avoid off the clock work. You want to make sure that employees are recording all of their work time, that you have a system in place to record all of your employees work time. ⁓ Increased overtime from people working extra hours that you may not be aware of. They could be doing it. without recording their time. Again, working through their lunch breaks. If you have minor employees, depending on their age and depending on what state you're in, you'll have different hours restrictions. They can't be working in violation of those hours restrictions. You could be hit with significant penalties. There are also in some jurisdictions predictive scheduling laws, where if employees end up working extra time that they weren't scheduled for in advance, you may owe them additional pay. And under some of these laws, there also could be exposure to additional penalties and fines in that event as well. Becca Rainey: Yeah, I think that's something that we stress on almost every episode of the FP5 is that be familiar with where you are and the jurisdiction you're in because in most cases there is probably a state law that may be more protected than federal law and as it goes you should always follow the stricter more protective law. ⁓ So, you know, how often organizations implement flexible perks like summer Fridays, you know, without triggering these compliance issues we just talked about. Patrick Dalin: Communication is key. You need to identify to your employees what your expectations are. ⁓ And when, again, identified advance your busy times and communicate how important it is for employees to be reliable in those situations. Becca Rainey: Our second thing, permitting coverage gaps. Everyone's looking forward to that summer trip, and while approving overlapping vacation requests might seem employee-friendly, it can also lead to understaffing and legal exposure. What should employers be thinking about when managing time off requests during peak summer periods? Patrick Dalin: Again, it's understanding what your business needs are, making sure your managers who are in charge of scheduling understand that, and continuing to have a conversation with your managers and supervisors who are doing the scheduling about what your busy times are, what your needs are going to be so that they understand it. They need to communicate, the employer needs to communicate, and often that's done through the managers, what times may be restricted as to. the ability to take time off or to take vacation. It's helpful to have a written policy or guidance on this as well, because you may want to put in place some priority as to if multiple people want to take vacation at once, who's going to get first priority and how is that determined? You know, maybe something like seniority. It's good to have rules like that in place so that employees don't get upset and think that things are unfair. Becca Rainey: Okay, so during the summertime, especially when you have a lot of your staff out ⁓ on vacations and, you know, there's a lot of time crunches due to higher demand. What are some things that employers forget about when it comes to meal and required rest breaks? Patrick Dalin: Again, this is a question where you have overlapping federal and state law and sometimes competing requirements here. Under federal law, there's no requirement to give a meal or rest period. However, if employees do take a meal period, you are allowed to not pay them for it. There's no bright line rule on the timing, but generally speaking, if it's at least a half an hour. and the employee is fully relieved from work duties during that time period, ⁓ you can deduct for pay. So one issue we see is employers might be automatically deducting say a half hour of meal or rest break time from an employee on a daily basis. It's very important for employers to make sure that the employees are actually taking that break and that break is not interrupted by work duties. And this overlaps with the coverage issue. if you're understaffed and your workers are spread thin, that invites people being asked to come back and contribute and chip in before they've had their full meal period. ⁓ You could be exposed in that instance of liability if you're not paying them for that meal period, but they're doing the work during it. At the state level, there are in certain states requirements that you provide certain meal and rest periods. those requirements ⁓ for minors can be ⁓ more strict as well. So you have to make sure that you provide where required those meal and rest periods. And again, there's requirements about ⁓ whether they need to be compensated or not, depending on what your state or local law is. Becca Rainey: Yeah, yeah, no, it can be very tricky, especially if you believe you're subject to federal rules, but there's also stricter state rules. ⁓ Again, as we've talked about, always go with the stricter rule, but consult legal counsel ⁓ to make sure that you know your proper obligations. But yeah, moving on to number three. The third mistake we see employers making is cutting corners on child labor. With many employers hiring teenagers for summer roles, there's a temptation to move quickly, but that can create serious legal pitfalls. What are the biggest compliance mistakes employers make when hiring and scheduling minors? Patrick Dalin: The biggest mistake we see is really not knowing the rules upfront. Hours restrictions, I think that's a generally known concept, but I think some employers get surprised by what some of the restrictions are. And again, this is an area where there's both federal law and state law. So you have to be aware of both. Some of the restrictions on teenagers in some states, the hours can be fairly limited. and the cap on what time they can work until on each day can be fairly limited. So you need to be aware of those. The US federal government, the US Department of Labor, couple of years ago got very serious about child labor violations. And it's been a very important initiative for them in past few years. And they've also increased the penalties here. So the penalties for child labor violations, ⁓ even the garden variety ones can go up to $16,000. We've seen even for just adverse violations, which don't seem that serious. Nobody got hurt, right? The violations are in the thousands of dollars, sometimes over $10,000 for each instance. So that's a thing where enforcement has increased substantially in the past few years. And I think that that is catching some employers by surprise. Other issues are... You know, with miners, there are certain jobs that they can't do, which are oftentimes called hazardous occupations. That can include certain industries that they can't work in, you know, miners can't work in mining, coal mining or metal mining, for instance. There's other tasks that they can't perform. They can't operate vehicles. They can't operate powered industrial trucks such as forklifts and cranes and other hoisting or lifting equipment. There's other equipment in say manufacturing setting that they're restricted from working with like powered woodworking machines and metalworking machines. Other specific equipment listed by US Department of Labor, it could get very specific. Dough mixing machines and meat slicers and things like that. Those are on the list. Miners over a certain age, say minors who are 17 to 18 can't operate certain equipment. minors who are younger can't. Employers can mix that up if you don't seek counsel or go take a look at the rules. Then again, the ever-present complication, ⁓ many states have their own laws on this. So they may add on top of the federal law additional restrictions for jobs or equipment or machinery that minors can work with. Becca Rainey: What are some systems or safeguards employers can use to avoid accidental violations? Patrick Dalin: Again, communication with your supervisors and managers. It's usually an on-site supervisor in a lot of places who are doing the scheduling or perhaps permitting or granting requests to work some extra time. You need to make sure that they understand the rules and you communicate to them who are the miners and what the expectations are. Again, written policies, written rules could go a long way here, but also explaining it to them and discussing it with them to make sure they they actually understand what you're trying to achieve and to understand that it's important that they comply. With regards to machinery that can't be used, equipment that can't be used, again, communication is key. And I've seen some employers do things like they'll make miners who can't use certain equipment, wear say like a certain color hat or a certain color shirt or button that designates them as a miner so that nobody else in the job site makes a mistake and asks them to do something that they can't do, perhaps not even knowing that that person's a minor. In the summer, you know, a lot of workplaces have more turnover than the rest of the year. So it is something that could happen is a new manager or a new employee could come in, perhaps not even knowing that someone else there is a minor under the age of 18, say, and they ask them to do something or help them out with a task that that person can't particularly do. So one clever thing that I've seen employers do that help avoid that issue is doing something with a color-coded piece of clothing or vest or something along those lines where it clearly designates the person as a minor who can't touch certain things. Becca Rainey: Yeah, I've also seen stickers and like I've noticed more as I've covered wage and hour issues more. I've noticed more of those signs that say, you know, stop. Are you under 18 or under this age? So I think things as simple as that can, you know, just make people think for a second before they accidentally grab onto a meat slicer or something they shouldn't be using. Patrick Dalin: Yep, warning stickers and warning signs are also very helpful. Becca Rainey: This is the FP5. I'm Becca Rainey. We're here with Patrick Daitlin. Patrick is a partner at Fisher Phillips in our Philadelphia office. Just a quick reminder, you can find a link to the summer employment insight we've been discussing in our podcast show notes. Fourth thing, misclassifying or misusing unpaid interns. There's a common misconception that interns can be unpaid if they're gaining experience, but the legal standard is much more nuanced than that. How does the Department of Labor determine whether an intern must be paid? Patrick Dalin: So the Department of Labor uses what's called the primary beneficiary test. It's a multi-factor test. At the heart of it, what they're looking to figure out with this test is the work that the intern is performing. Is it part and parcel of say that intern's learning or educational experience, or is it productive work that runs to the benefit of the employer? Again, it's a multi-factor test, one of the factors that is looked at is the work that the intern is performing. that displacing what would otherwise be a paid employee? So if you, as the employer, in the absence of this intern would say be hiring another staff member to do this work, that's a factor that's going to strongly point in the direction of this intern in fact being an employee who needs to be paid. Other factors that they look at is whether there has been clear communication between the employer and the intern as to whether the person is in fact an employee, as to whether there's any expectation of compensation. another important factor that they look at is, this internship coupled with or in cooperation with some other educational or learning experience for the intern. if it's, especially if it's connected to a school program, that's helpful. If it's timed in a certain way to coordinate with a, school academic schedule, that's helpful to point in the direction of intern as well. The takeaway here, there's no hard line rule, but under the primary beneficiary test, is it really the intern's there to kind of shadow and learn from your operation or is the person doing work that otherwise you would have a paid employee doing. That's really the key dichotomy there for the primary beneficiary test. Becca Rainey: Yeah, what risks do employers face if they misclassify interns, especially during these busy summer seasons? Patrick Dalin: Yeah. So if you misclassify someone as an intern, so to speak, and their determination is that they're actually doing productive work that would normally be done by an employee, in that case, under the law, they would be treated as an employee who was entitled to compensation for the work they performed. So an employer would face ⁓ having to pay back pay for that time that the intern performed work. In addition, there could be liquidated damages, which under federal law is up to double the amount of back pay. In some states, it could be even more than that. On top of that, there could be interest having to pay the interns' employees' fees and costs if they bring a lawsuit and potential civil penalties as well if it's ⁓ a government investigation. Becca Rainey: All right, well, the fifth and final thing we see employers getting wrong every summer is neglecting heat safety concerns. Rising temperatures create workplace safety risks that extend far beyond traditional outdoor industries. What legal obligations do employers have when it comes to protecting workers from heat-related hazards? Patrick Dalin: Sure, so the OSHA, the Occupational Safety and Health Administration, they're working on a heat stress standard. They haven't finalized one, but for the time being, they can still enforce their heat stress expectations and they've got it out there. They enforce it under the OSHA Act's general duties clause. They have been out there for years now writing citations under the general duty clause. In addition, some states have their own heat stress standard. So depending what state you're in there, there can be heat stress standard that you have to comply with as well. And those could also, again, you know, apply additional requirements above and beyond what OSHA requires. Becca Rainey: Yeah, and just some background for those who aren't super familiar with the OSHAC. The OSHAC states that employers have a general duty to provide a safe workplace that's free from known hazards. And we have seen OSHA in the past use heat as a known hazard in certain cases. So it's really important to review the guidance that's available from OSHA. There's a lot on their website that provides just simple steps. for employers to take to provide heat, shade, rest, what temperatures can potentially trigger heat illness, and that sort of thing. So that's a really excellent resource. So how can employers proactively reduce risk even without this specific federal rule on workplace heat hazards? Patrick Dalin: First things first, it's a good idea to have a heat illness prevention plan. And as part of that plan, do a hazard analysis. You may have some jobs where there's more risk than others. So you want to do an analysis and identify what jobs, what areas of your property or your facility may be at more risk than others. Identify those. Put in your plan precautions that you'll have in place and triggers for those precautions. You should have someone who's in charge of monitoring the heat index, which is computation of both the temperature and the humidity combined, and have triggers. So say a heat index of 80 degrees, certain precautions are triggered. Then when it rises to say 85 degrees or 90 degrees, your precautions step up accordingly. As far as those precautions go, what OSHA always says is water rest shade. I would say water rest shade and training. You want to these written down what the rules are, but those would be making sure your workers have ample access to water. How that plays out in your facility could differ, but I've seen facilities where someone's in charge of making sure there's coolers spread out throughout the facility and that they're filled with water. You want to designate the person or persons who's responsible for that. Giving people adequate rest breaks, very important, and also shade breaks if it's a type of job where people work in the sun a lot. And training, as always, is very critical here. It's great to have a written program in place. It's great to have done a hazard assessment. But you need to make sure that the people down the chain understand what the rules are and what the expectations are, and also how to recognize warning signs. I remember having a case with OSHA many years ago at the Department of Labor where an employee was actually working very, very hard. He was a new employee and people actually thought like, this guy's a really hard worker. He's really putting in the work here. He was actually in a heat stress delirium, which is why he's working so hard. that was an instance of the other people in the workplace were not trained to recognize the warning signs of heat stress. So it's very important that your supervisors be trained to recognize that, but training for the rest of your employees as well is. it can be helpful because oftentimes they're the people who are closest to their colleagues and are first in line to notice things. Becca Rainey: Right. Or if you're experiencing it yourself, you can raise your hand and be like, hey, I'm not feeling okay, you know, before it gets to a serious, a more serious instance. So. Patrick Dalin: And would say one last thing on that point is to have an acclimatization program for new employees or employees who are returning, who've maybe either been out of your workforce or maybe they've been working in a different department and they're coming back to somewhere where the risk is greater. You want to have, again, a standardized process in place to give them kind of a slow introduction to what might be an occupation where there's some heat stress hazards. There's science that shows that You know, people can get acclimated to heat over time. If you get thrown into it quickly, there's greater risk. So you want to have an acclimatization program in place to account for that. Becca Rainey: Are there any particular industries or roles that tend to underestimate these risks? And why does that tend to happen? Patrick Dalin: I don't know if I would say that there's any particular industries or roles that underestimate it. You we see lots of employers who take this stuff very seriously across all industries. You know, sometimes there are employers who don't. I would say the main factor there is probably they just haven't encountered this issue or maybe they haven't had someone yet who's run into a problem and they're not aware of the increasing enforcement in this area. ⁓ Newer employers, you know, would tend to be more susceptible to this because they just haven't had this experience yet or have gotten up to speed yet. But I think it's a mix. I don't think there's any particular industries that don't take this seriously as an industry. It's more an employer to employer question and really a level of education and experience with regards to each particular employer. Becca Rainey: do think that when we traditionally think about heat stress, it's people working, you know, maybe in agriculture or working outside or in construction. But, you know, there's also industries, you know, like transportation where people are getting in and out of delivery trucks, or there's even people working back of the house in a hot kitchen and it is also 95 degrees outside. So there's also, I think, some places where maybe we're not. fully aware or weren't thinking of those as places that could present these kinds of heat stress related risks. Patrick Dalin: warehouses and manufacturing, you know, it could be completely endorsed work, but they can get very hot. Becca Rainey: Yeah, absolutely. It can happen in any industry, I'd say. Patrick Dalin: you Becca Rainey: So this is always my favorite part of the episode. This is where we get to know our guests a little better in five questions. This time it is summer themed. Are you ready? All right, the first one's obvious. Do you have any summer plans? Patrick Dalin: Ready, let's do it. I'm somewhat of a last minute planner a lot of the time and I live in Philadelphia so I could easily just shoot down the Jersey Shore, head up into the Pennsylvania mountains on a lark. Yeah. So I mostly play by ear during the summer. I do have one trip planned. You know, I'll be taking a ⁓ bigger Jersey Shore trip with the kids the week before school goes back into session. So that's my one big plan for the summer, a nice big Jersey Shore trip. Becca Rainey: ⁓ yeah. Well that actually leads perfectly into the next question. You have to choose one. A mountain lake retreat, a water park, a boardwalk, or the beach? Patrick Dalin: That's a really tough one. I love all four, but in the summertime, I definitely love a good beach. You're giving me an inch and I'm going to take a mile here. I'll say a beach, also a beach combined with the boardwalk. ⁓ yeah. Also, if you can find one in a town that also has a water park, ⁓ that trifecta. Becca Rainey: Yeah, you know, that sounds like Ocean City, Maryland, which is actually like 30 minutes away from where I grew up and also where our producer, Evan Banks, grew up. I always love to plug the Eastern Shore of Maryland when I can. Patrick Dalin: I've been there. It's a great town. Becca Rainey: Yeah, what was your first or favorite summer job growing up? Patrick Dalin: So I had a ton of jobs. I was basically always working in high school. The first job I had where I had to go get my state working papers when I was 14 was working at a local supermarket. ⁓ Not a glamorous job, mopping floors, cleaning the bathroom, wrangling carts out in the parking lot in the summer heat. But I learned a lot. I had ⁓ hours restrictions. And also there was equipment that I couldn't touch, cardboard bale or the trash compactor. ⁓ So, it was a good learning experience for honestly, for what I do now. I also worked at Veterans Stadium in high school, which was a pretty notorious stadium. I was there at the tail end of it when the wheels were really coming off and they had the prison in the stadium. So, I worked in a stand making hot dogs and working the register and stuff. And again, you know, other rules, it was explained to me I wasn't old enough to pour the beers. So, I everything else, but I couldn't pour a beer. Becca Rainey: We're in a hot dog stand. That's legendary though. That's the best part of the ballpark in my opinion. ⁓ So what is the best way to beat the heat? Do you like the movie theater? Like ice cream going to like the pool? What's the best way for you? Patrick Dalin: Yeah, it wasn't good by diet. I would say anything involving water. So, you know, the beach, a pool. So here in Philly, they've replaced a lot of the old city pools with these like sprinkler pads, pads, playgrounds with them. So we spend a lot of time there in the summer. It's great for the kids. And honestly, I like just, it's, I don't really go in the water for the kids, but even just being by it. The mist. It's a great way to beat the heat. Becca Rainey: The mist feels good, yeah. They've got a lot of that over here in Maryland too. Like pretty much all of our public gyms, like YMCAs now have those splash parks. I'm like, I feel like someone's gonna slip. It looks like fun. All right, so what would your ideal summer weekend look like if you were completely off the clock? Patrick Dalin: They're great. Aloha. That's another tough one. There's so many fun things to do in the summer. I couldn't squeeze in everything I'd want to do, right? But probably some mix of, again, the beach, a pool, a fishing trip would be great, some type of hike or light walk with the kids, and ideally some reading that's not work-related. Probably can't squeeze that all into one weekend, but I would try as much as possible. Becca Rainey: Right, the hard part with just like doing a weekend trip is the travel piece of it takes up so much of the limited time you have that it feels kind of like rushed. Sometimes it's like overwhelming. It's like, you want to get all these things done and it's only 48 hours. Patrick Dalin: And everyone else is traveling at the same time. So. Right. It takes a long time. Becca Rainey: Well, Patrick, that's all the time we have for now. Thanks again for being on the show. Patrick Dalin: Thank you, Rebecca, for having me. Becca Rainey: Thanks for listening to the FB5. For other insights from Fisher Phillips, visit fisherphillips.com. And be sure to check out all of the insights on summer hiring that we've linked in this podcast episode's show notes. If you've enjoyed the show, make sure you're subscribed and rate us on your favorite podcast app. We'll see you next week. Listening to this podcast doesn't constitute legal advice and doesn't establish an attorney-client relationship. For more information, visit fisherphillips.com. slash legal dash notices.