november2021 - 16

THE LABOR LAW ADVISOR
The Pandemic
Unforeseen Events and Unforced Errors
EMPLOYERS HAVE RARELY, if ever, been confronted with challenges as difficult or unique
as those they have faced over the past 18 months. The Coronavirus pandemic has been
one of those once-in-a-lifetime events that no one, especially employers, ever wants to see
again. From its first impact employers across the board have had to adapt to the federal
government's constant revisions and updates to its guidance for maintaining a safe workplace.
As businesses began to resume
operations, the numerous operational
problems were exacerbated by a lack of
returning employees and inability to
hire new ones. Substantial increases in
starting pay to help attract applicants
were somewhat successful, but created
the unintended consequence of wage
compression, often upsetting existing
employees. This resulted in unhappy,
experienced employees leaving for open
positions that offered more money for
their experience in addition to quickly
departing new hires job hopping
through abundant available jobs. More
employees have been leaving their jobs
than at any time since 2000.
In addition, the expanding government
regulation into U.S. workplaces
has been expanded in the name
of COVID-19 prevention. Centers
for Disease Control and Prevention
(CDC) guidelines effectively became
requirements. Most recently, the Biden
administration has gone further by
attempting to mandate that employers
with 100 or more employees require
that they be vaccinated or show a
negative COVID-19 test on a weekly
basis. As of this writing, several states
and business groups have challenged
this OSHA Emergency Temporary
Standard. The vaccination mandate
for employees of federal contractors,
issued on September 9, 2021, may prove
more difficult to challenge, since the
federal government is largely free to
decide with whom it will do business.
These are merely a few of the
hurdles that employers have had to
overcome as the result of the pandemic.
That is why steering clear of
any self-inflicted harm, such as legal
missteps, is so critical. One example
that arises all too frequently is wage
and hour violations under the Fair Labor
Standards Act (FLSA) or similar state
laws. Chief among these violations
is misclassification of employees as
exempt from overtime. The overtime
exemption for " administrative " personnel
is most frequently misapplied. Some
employers mistakenly believe that an
employee working in an office environment
and performing work such as that
of a bookkeeper, accounts payable or
receivable clerk, or some similar clerical
position, qualifies under the " administrative "
exemption if the employee is
paid a salary. In most situations that
assumption is erroneous.
To qualify for the " administrative "
exemption, an employee must be paid
a salary of at least $684.00 per week
($35,568.00 annually) and perform
certain duties. These duties must be
" office or non-manual " work directly
related to the management or general
business operations of the employer
or the employer's customers. The
employee must also exercise discretion
and independent judgement with
respect to matters of significance,
which is most often at issue. Both the
type of work performed as well as the
importance of the work are relevant.
The exercise of discretion and
independent judgment " implies that
the employee has authority to make an
independent choice. " Exempt " administrative "
employees possess the authority
to commit the employer in matters of
16 NOVEMBER 2021 ■ www.CPAPracticeAdvisor.com
significant financial impact or with
authority to waive or deviate from
established policies and procedures
without prior approval. Using skill and
experience in applying established procedure
or standards generally will not
satisfy the " discretion and independent
judgement " requirement. Examples of
exempt administrative jobs would be
purchasing agents, human resources
personnel, buyers, inspectors, and
executive assistants, among others.
The harm that could result from
misclassification comes in the form of
a Department of Labor (DOL) claim or
private lawsuit. Either could result in
backpay for overtime wages for up to
three-years for each week that a misclassified
employee worked more than 40
hours. There is also the risk of liquidated
(double) damages and DOL fines for each
violation. If the matter is the subject of
a private lawsuit, the employer would
also be responsible for the complaining
employee's attorney's fees. If multiple
individuals have been misclassified,
the violations could be pursued as a
collective and/or class action.
Another common wage and hour
violation is off-the-clock work. These
claims have escalated in recent years
across nearly all workplaces. They often
arise after an employee has left the
employer. These claims can involve both
preliminary and postliminary activities
to the principal activities of the job. In
certain industries " donning and doffing "
of equipment can be compensable if
" unique items are involved. " Similarly,
preparing equipment and vehicles,
transporting tools and equipment,
RICHARD D. ALANIZ
Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com
security screenings, shift-change
activities, and attending meetings
and training programs are usually
compensable time. The routine review
and response to work-related e-mails
or texts after the end of the normal
workday has also served as the basis for
off-the-clock work claims. Since most
employees are plugged in 24/7, this has
become a common problem.
The measures necessary to help
avoid both misclassification of employees
and off-the-clock work claims are
relatively straightforward. In the case
of misclassification, employers should
carefully review both the job descriptions
and day-to-day activities of all
exempt employees. The job description
should accurately reflect the work performed
and comport with the claimed
exemption. Regarding off-the-clock
work, the best course of action is to post
a notice to employees that no overtime
work or work off-of-the-clock may be
performed without the employee's
supervisor's prior authorization, and
that violations will result in disciplinary
action. The notice should also inform
employees that repeated violations will
result in termination. While employers
are required to pay employees
for off-the-clock work, even though
unauthorized, employers can and
should discipline and even terminate
employees for repeated violations.
Though little can be done to help
ease lingering distress over events
during the pandemic, being aware of
and taking steps to avoid common wage
and hour violations should make the
future a little brighter. ■
http://www.CPAPracticeAdvisor.com

november2021

Table of Contents for the Digital Edition of november2021

From the Editor: CPE for Free at Ensuring Success
Quick Networking Tips Your Can Implement Today
Technology: A Critical Driver of M&A Synergy
How to Better Manage and Track Your CPE Credits
How to Find the Right Buyer for an Accounting Firm
Modernizing Outdated Areas of Your Accounting Firm
Marketing Your Firm: How to Create a Press Kit if Your Firm Acquires or Merges into Another
From the Trenches: Continuous Education to Meet Technology Changes
The ProAdvisor Spotlight: Productivity Innovations Announced at QuickBooks Connect 2021
The Leadership Advisor: Self-Care for Busy Accountants
The Labor Law Advisor: The Pandemic: Unforseen Events and Unforced Errors
The Millennial Advisor: Every Action Matters
The Staffing & HR Advisor: Staying Ahead of the Curve: What's New in Accounting for 2022?
Apps We Love: Lifestyle Apps
Trust & Empowerment: Two Keys to Emerging Unscathed from the Great Resignation
AICPA News: A round up of recent association news and events
Bridging the Gap: 5 Growth Trends for 2022
november2021 - 1
november2021 - 2
november2021 - 3
november2021 - From the Editor: CPE for Free at Ensuring Success
november2021 - Quick Networking Tips Your Can Implement Today
november2021 - Technology: A Critical Driver of M&A Synergy
november2021 - How to Better Manage and Track Your CPE Credits
november2021 - How to Find the Right Buyer for an Accounting Firm
november2021 - 9
november2021 - Modernizing Outdated Areas of Your Accounting Firm
november2021 - Marketing Your Firm: How to Create a Press Kit if Your Firm Acquires or Merges into Another
november2021 - From the Trenches: Continuous Education to Meet Technology Changes
november2021 - 13
november2021 - The ProAdvisor Spotlight: Productivity Innovations Announced at QuickBooks Connect 2021
november2021 - The Leadership Advisor: Self-Care for Busy Accountants
november2021 - The Labor Law Advisor: The Pandemic: Unforseen Events and Unforced Errors
november2021 - The Millennial Advisor: Every Action Matters
november2021 - The Staffing & HR Advisor: Staying Ahead of the Curve: What's New in Accounting for 2022?
november2021 - Apps We Love: Lifestyle Apps
november2021 - Trust & Empowerment: Two Keys to Emerging Unscathed from the Great Resignation
november2021 - 21
november2021 - AICPA News: A round up of recent association news and events
november2021 - Bridging the Gap: 5 Growth Trends for 2022
november2021 - 24
https://www.nxtbook.com/endeavor/cpapracticeadvisor/august2022
https://www.nxtbook.com/endeavor/cpapracticeadvisor/june2022
https://www.nxtbook.com/endeavor/cpapracticeadvisor/april2022
https://www.nxtbook.com/endeavor/cpapracticeadvisor/december2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/november2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/october2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/september2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/august2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/july2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/june2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/may2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/april2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/march2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/february2021
https://www.nxtbook.com/endeavor/cpapracticeadvisor/december2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/CPA_Practice_Advisor_November_2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/october2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/september2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/august2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/CPA_Practice_Advisor_July_2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/CPA_Practice_Advisor_June_2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/may2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/CPA_Practice_Advisor_April_2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/CPA_Practice_Advisor_March_2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/february2020
https://www.nxtbook.com/endeavor/cpapracticeadvisor/december2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/november2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/october2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/september2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/august2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/july2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/june2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/may2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/april2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/march2019
https://www.nxtbook.com/endeavor/cpapracticeadvisor/february2019
https://www.nxtbookmedia.com