February 2020 Volume 2

OPERATIONS & MANAGEMENT

understand an employer’s obligations here. If I’m an employee just having an off-line conversation with a co-worker, I might resent my employer’s asking me about it. I may think that it’s none of your business, especially if the participating parties were OKwith it. But, as electronic communication can be copied and forwarded easily and immediately, employees need to understand that their private conversations and postings aren’t necessarily private. And once it comes to your attention, you can’t just ignore it. Supervisors and managers need specific training here (and on the related off-the-clock issue discussed below). In addition to the general awareness of how online communication can be shared (and brought to the company as a complaint), supervisors and managers need to understand that their online activities can create bias claims. Historically, we lawyers would use the example of the male “boss” who asked the men on his team to play golf with him but didn’t ask the women. Now, often, the women didn’t play golf (in this scenario) so the “boss” may have decided who to ask (or not ask) based on golf. But, regardless, the men had access to the “boss” while the women did not. This same scenario translates to online access as well. Supervisors and managers need to be consistent in who they “friend” or “follow” or provide any kind of access. This access is similar to the golf game and supervisors and managers need to be aware of how their online invitations are perceived. But, supervisors and managers don’t need to give up all privacy. I have seen public, all-access accounts, and private accounts (truly separate from professional life). It’s about being aware.

tracking issues. Many companies try to deal with this challenge by blocking remote access to non-exempt employees. In other words, a non-exempt employee is not permitted to check his work email after logging out for the day. But not all work communication happens on work devices. Everyone (or nearly everyone) has a smart phone. Texting has replaced, or at least supplemented email. Texting can be work, and depending on the volume, more than de minimus work. Additionally, if an employee feels like he has to be continually accessible, even in off-hours, this could lead to a type of on-call situation, with its related requirements. Again, I think it’s about being aware. If work needs to be done at a particular time, it should be. But, just because a supervisor is catching up on emails and daily tasks after her kids go to sleep, that doesn’t mean that she needs to bring in her team at that moment. There has been a new development related to some of the issues discussed above, specifically to who can (or can’t) be exempt under the wage and hour laws. As a reminder, employees who are not “exempt” under the law are eligible for overtime for working time (even, potentially, working time beyond the office). To be exempt (generally), an employee needs to be paid on a salary basis (meaning he receives a set amount per week regardless of the number of hours worked) and meet the “duties test” in terms of his work duties. For the latter, federal law provides for certain categories of exemptions, e.g., executive, professional, administrative. (State laws generally track federal law on this issue, but there can be distinctions.) And it’s the employer’s burden to prove the exemption applies. The Department of Labor issued a new rule regarding whether an employee can be properly classified as exempt, which took effect on January 1, 2020. The new regulation does not change the duties test. It does change the salary test. Previously, the minimum salary for an exempt employee was $23,660/year. Under the new regulation, an individual needs to be paid a salary of at least $35,568/year (so that’s $684/week or $1,368 if you pay bi-weekly or $1,482 if you pay semi-monthly). The year is a calendar year, unless you otherwise designate. (You can pro-rate if the employee doesn’t work for the entire year.) To meet this salary amount, an employer can include (up to 10%) commissions and non-discretionary bonuses, and this even can be done with a catch-up payment if you fall short. In sum, an employer needs to review anyone who earns an annual salary between $23,660 (the former threshold) and $35,568 (the new threshold), and is currently classified as exempt. ■

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com .

Supervisors and managers also need to understand that employees classified as non-exempt (whether paid hourly or a salary) need to be officially “on the clock” when working. Non-exempt employees need to record their working time, regardless of when and where that work takes place. I think everyone understands this concept in the factory floor environment. Employees need to clock in before they start working, and clock out after they finish for the shift. The lines can tend to get blurrier in the office environment. And remote access, or other outside work communication, adds further time

FIA MAGAZINE | FEBRUARY 2020 45