Monthly Archives: November 2015

November 30, 2015

Unlimited Vacation Policy: Is It Right For Your Company?

By Mark Wiletsky and Emily Hobbs-Wright

Paid vacation time is a perk that can attract and retain the best and brightest employees. It can also impact your balance sheet, as earned but unused vacation days remain a liability until used or paid out. A small, but growing number of companies are trying a new approach, offering unlimited vacation to certain segments of their workforce. Netflix, Best Buy, Virgin America, LinkedIn, General Electric, and others have adopted unlimited vacation policies, or “discretionary time off (DTO),” as it is sometimes called.

Colorado employers, along with organizations in other states, may be wondering whether to scrap existing paid time off or vacation policies and replace them with unlimited vacation. That is especially true given the recent—and sometimes conflicting—information from the Colorado Department of Labor and Employment concerning “use-it-or-lose-it” policies. To help you decide whether unlimited vacation policies are right for your organization, we’ll highlight the pros and cons. But first, some background.

Legal Implications For Vacation Pay

Generally, employers are not required by law to provide paid vacation time to employees. If you choose to provide paid time off for vacation purposes, you get to decide what your vacation policy will be. This includes specifying how much paid vacation you’ll provide, any eligibility requirements, which categories of employees are entitled to it, when it accrues or is “earned,” in what increments it may be taken, the request and approval procedures, whether it carries over from year to year, and other vacation procedures.

That said, state laws will factor into the implementation of your vacation policy. For example, many states classify accrued vacation as compensation or wages and will specify that earned vacation pay may not be forfeited. Such provisions mean that unused, earned vacation must be paid out upon separation of employment. These state laws also can prohibit “use-it-or-lose-it” vacation policies where an employee who fails to use his or her accrued vacation time within a specified time frame loses the accrual of paid time.

By way of example, Colorado wage law states that vacation pay earned in accordance with the terms of any agreement is considered “wages” or “compensation.” Colorado employers who provide paid vacation to employees must pay all vacation “earned and determinable” upon separation of employment. Although the Colorado Department of Labor and Employment recently indicated that a “use-it-or-lose-it” vacation policy is permissible, the Department also noted that such a policy may not operate to deprive an employee of earned vacation time. The Department will look to the terms of the agreement between the employer and employee to determine when vacation pay is “earned.”

Pros – Why Unlimited Vacation May Make Sense

Some organizations have implemented a single paid time off (PTO) policy, allowing employees to accrue a set amount of paid time off to be used for virtually any purpose, such as vacation, sick time, attending kid’s school events, going to appointments, etc. Getting away from traditional (and separate) vacation and sick time policies is believed to offer employees more flexibility while cutting down on administrative headaches for employers. Unlimited vacation, or DTO, goes even further. Here are the potential benefits of an unlimited vacation policy:

More Flexible Work Schedules – employees can take advantage of more flexibility to manage their work and personal time; often a great recruiting and retention tool
Avoid Keeping Accrued Vacation On Your Books – in many states, because vacation time is no longer “earned,” you arguably will no longer need to pay out any unused vacation time upon separation of employment, effectively eliminating the liability of carrying accrued vacation time on your balance sheet
No Cost/Little Cost Perk – if employees take about the same amount of time off under an unlimited vacation policy as under a traditional accrued vacation and sick time policy, employers do not experience any additional cost for the program; as long as the perk is not abused, there may be little financial cost to the company
Increased Productivity – reports suggest that employees become more efficient and productive while at work in order to ensure that they suffer no ramifications when utilizing their time off under the unlimited vacation policy
Morale Booster – trusting that employees can properly manage their time on and off the job can build morale and loyalty; it can shift the focus from putting in hours to getting results
Streamlining of Record Keeping Practices – by eliminating the need to track vacation accruals and usage, you may cut down on the administrative headaches associating with a traditional vacation policy

Cons – Why Unlimited Vacation May Not Work

An unlimited vacation policy may not be appropriate for all organizations. Depending on the nature of your business and the make-up of your workforce, you may determine that the following risks negate any good that could come from an unlimited vacation policy:

Perception That Unlimited Vacation Means No Vacation – some employees may feel that taking away a specific accrual for vacation means that they’ve lost an important perk, especially if they believe that the company or their supervisor will not truly allow them time off when they want it
Additional Cost If Abused – if overall time off exceeds previous accrual amounts, and that additional time off is not offset by increased productivity, the perk may cost you more and be less predictable than an accrual-based vacation policy
Less Black and White – whether an employee is “abusing” unlimited vacation can be rather subjective; one employee may produce excellent work product while taking six weeks off per year while another employee fails to meet expected output taking only three weeks of vacation; as a result, supervisors may struggle with how to handle discipline and performance issues and create a perception of unfair or, even worse, discriminatory treatment
Not Tested, So Liabilities Unknown – it is unclear how state agencies and courts will handle potential wage claims based on an unlimited vacation policy
Scheduling Uncertainties – it can be difficult to cover shifts, schedule projects and meet production deadlines when employees have greater flexibility to use unlimited time off
Pay Issues For Non-Exempt Workers – an unlimited vacation policy would be difficult to apply to non-exempt hourly employees (e., employees who are eligible for overtime pay) as you need to track all hours worked and ensure that you pay minimum wage and an overtime premium according to applicable state and federal law

Bottom Line: Use Caution

If your workforce utilizes exempt employees (i.e., employees who are not eligible for overtime) who have a great deal of autonomy, such as in technology and creative fields, an unlimited vacation policy may attract and incentivize your employees. If you employ mostly non-exempt hourly workers, have a lot of turnover, or need more predictability in covering shifts and positions, an unlimited vacation policy may not work for you. Your best bet is to compare the pros and cons with the nature of your business to evaluate whether this new type of employee perk is appropriate for your organization. If in doubt, it’s always a good idea to consult with your employment counsel.

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November 16, 2015

Overtime Pay Changes May Be Delayed Until Mid-to-Late 2016

By Mark Wiletsky

The Department of Labor (DOL) does not expect to issue its final rule changing the overtime exemptions until mid-to-late 2016, according to a recent report in the Wall Street Journal. The report states that Solicitor of Labor, Patricia Smith, provided the new timeline at an American Bar Association Labor and Employment Law conference in Philadelphia last week. The final rule is expected to greatly expand the number of employees who are eligible for minimum wage and overtime pay. If the final rule is delayed until mid-to-late next year, the changes probably won’t go into effect until sometime in 2017.

Why The Delay?

In March 2014, President Obama directed the DOL to update its regulations defining which white collar employees are exempt from the minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA). It took over a year – until July 6, 2015 – for the DOL to issue its proposed changes. The proposed rules raise the salary threshold for white collar exemptions to the 40th percentile of weekly earnings for full-time salaried workers nationwide, or an estimated $970 per week/$50,440 per year. The salary threshold for highly compensated exempt employees would go up from $100,000 to about $122,148 per year. The proposed rules include a mechanism for automatic annual increases to the salary thresholds. See an earlier blog post for a more detailed explanation of the proposed changes.

After the proposed rules came out in July, businesses and organizations flooded the DOL with an estimated 290,000 comments. Solicitor Smith reportedly told the ABA conference attendees that the large volume of comments and the complex nature of the changes were the cause of the delay in issuing the final rules. Another explanation could be politics and the desire to wait to issue the new rules until after next year’s presidential election.

Next Steps

Employers may have more time to prepare for the expected overtime pay changes, but the timing remains uncertain despite the Solicitor’s comments. Plan to review the employees you currently consider to be exempt and note those positions and persons that are being paid close to the salary threshold. Those will be the ones who may no longer be exempt after the salary thresholds go up. Although no changes to the duties requirements were part of July’s proposed rule, the DOL asked for comments on the duty rules. Accordingly, the FLSA white collar exemption duty requirements could change after the final rules come out. We will keep you posted on any new developments.

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November 12, 2015

Are Your Background Check Disclosure Forms FCRA-Compliant?

By Mark Wiletsky

A rash of class action lawsuits is forcing employers to defend their background check disclosure and authorization forms. The current focus is on disclosure forms that include extraneous information. Here’s what you need to know to lessen your risk of a similar class action lawsuit.

FCRA Disclosure Requirement

If you obtain background check reports from a third party, such as a consumer reporting agency that provides employment-related screening services, you need to comply with the Fair Credit Reporting Act (FCRA). The FCRA, among other things, requires that employers disclose to applicants/employees that a consumer report may be obtained for employment purposes before requesting the report. Specifically, an employer or prospective employer must provide “a clear and conspicuous disclosure” in writing to the individual on whom the report is to be conducted and that disclosure must be “in a document that consists solely of the disclosure.”

It is this stand-alone disclosure requirement that is now the subject of many class action lawsuits. Applicants (and their class-action counsel) scrutinize the background check disclosure forms used by employers and if there is any extraneous information included on the form, they file a lawsuit alleging that the employer violated the FCRA by failing to provide a stand-alone disclosure. The applicants can allege a statutory FCRA violation without suffering any actual damages, seeking recovery of between $100 and $1,000 for each member of the class of applicants who were provided the same form. They also seek punitive damages for willful violations of the FCRA.

Extraneous Information on FCRA Forms

The text of the FCRA does not define what it means to be a “document that consists solely of the [required] disclosure.” It does, however, state that the required written authorization from the applicant/employee may be included with the disclosure. Consequently, employers may combine the FCRA disclosure with the authorization/consent requirement, but any other information on the form may jeopardize compliance.

As these cases proceed through the courts, judges have found certain types of additional information on the FCRA disclosure form to be problematic, including:

Imbedding the FCRA disclosure within a job application
Release of liability, e.g., “I hereby release [employer] and any of its authorized agents from liability”
Acknowledgement of no discrimination, e.g., “I fully understand that all employment decisions are based on legitimate non-discriminatory reasons”
Ramifications of falsified information, e.g., “I understand that submission of false information on this or any employment forms may result in non-selection or termination if hired”
State-specific notices, e.g., notices specific to California or New York applicants, etc.
Statements about how background information will be gathered and from which sources
Procedures for how to dispute information on the reports, including time frames for challenging the accuracy of any report
Name, address and contact information of the consumer reporting agency

In most cases, the courts have refused to dismiss these lawsuits at an early stage, allowing the class representatives to proceed with their allegations of FCRA violations based on these types of extraneous information in disclosure forms. It is unclear whether a judge or jury will ultimately conclude that an FCRA violation exists in these cases, but the affected employers face significant risk of liability as well as the time, expense and public notoriety related to defending these actions in court.

Don’t Rely On Your Screener

If you think you are out of danger because you rely on FCRA forms provided by your background screening company, think again. Consider the recent class action filed against Big Lots in Philadelphia. The national chain of retail stores used a “Consent to Request Consumer Report & Investigative Consumer Report Information” form provided by its background check provider, Sterling Infosystems, that did not contain the required disclosure language. Instead, the form included allegedly extraneous information, including an implied liability waiver, a full page of state-specific notices, and information about how background information will be gathered and how disputed information may be challenged.

The class action seeks to hold Big Lots liable for its alleged violation of its FCRA disclosure obligations, and it will be up to Big Lots to try to hold Sterling Infosystems liable for providing non-compliant forms. However, because many background screening providers limit their liability in their service contracts, sometimes to only two or three months’ worth of screening costs, you may be left without much recourse.

Review Your FCRA Forms

Take the time to review your background check disclosure and authorization forms now. Make sure your FCRA disclosure and authorization is not imbedded or buried in your employment application. If your disclosure forms include extraneous statements, such as liability waivers, state-specific disclosures, or other background check procedures, your forms may not meet the FCRA requirement to be a stand-alone disclosure. Consider removing the extra wording from the FCRA disclosure forms and move them to a different, non-FCRA-related document. These sorts of class actions can be easy pickings, so taking action now will go a long way toward avoiding being hauled into court.

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November 4, 2015

2016 Colorado Minimum Wage Going Up To $8.31 Per Hour

By Emily Hobbs-Wright

Minimum wage workers in Colorado will see a one percent increase in their hourly wage in 2016. The Colorado Division of Labor has proposed to increase the minimum wage from the current $8.23 per hour to $8.31 per hour beginning January 1, 2016. The minimum wage for tipped employees will increase from $5.21 to $5.29 per hour.

The Colorado Constitution mandates that the state minimum wage rates be automatically adjusted for inflation each year. The new wage rates for 2016 reflect that the consumer price index (CPI) for the Denver-Boulder-Greeley urban area for the first half of 2015 went up overall by one percent from the first half of 2014. The Bureau of Labor Statistics noted that higher costs for housing, up 5.5%, were largely responsible for the overall increase. Food prices rose 1.5 percent and other items were up 3.2%. Despite a 21.7% decrease in energy costs, the overall CPI for urban consumers was up one percent.

Proposed Minimum Wage Order Number 32 will be up for comment at a public hearing on November 9, 2015, after which the Division of Labor will issue its final rule. Information about the hearing and submitting written comments is available on the Division’s website.

As a reminder, Colorado’s state minimum wage rates apply if either of the following two situations applies to an employee:

1. The employee is covered by the minimum wage provisions of Colorado Minimum Wage Order Number 32; or

2. The employee is covered by the minimum wage provisions of the Fair Labor Standards Act.

If in doubt about the application of Colorado’s wage laws, be sure to consult with your employment counsel.

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