Q&A: Are We in Compliance with Labor Laws?

20-Dec-2015

Question Corner

Are We in Compliance with Labor Laws?

By Jason R. Mau

Q: One of our departments is falling behind in the amount of work that needs to be completed. We are requiring these employees to work extra hours in an effort to catch up. We have also told them they can’t use vacation days during this time. However, we have a “use it or lose it” vacation policy. Are we in compliance with labor laws by restricting vacation time while workloads are so vast?

A: Neither the Fair Labor Standards Act (FLSA), nor Idaho law requires vacation time be provided to employees.  Vacation policy is a matter of agreement between employer and employee.  Further, an employer is allowed to change the work hours an employee is required to work.  As long as your department’s arrangement does not violate your leave policy, an employment contract, or a collective bargaining agreement in place, you are in compliance with labor laws.

Q: We are a seasonal construction company and will have several employees on temporary layoff during the cold weather. We are trying to implement an annual safety meeting all of our employees must attend. If we have this meeting during the layoff, would laid-off employees have to be taken off layoff and returned to work, or are there other options for compensating them while they attend the safety meetings?

A: Under the FLSA, mandatory meetings are working time and the employee, who is “suffered or permitted” to work here, must be compensated as a regular employee. 

Q: Is there any problem with putting a policy in our employee manual stating that employees who are on work restrictions are not permitted to work overtime?

A: Unless it violates a specific collective bargaining provision in place, the FLSA does not prohibit this policy.  There is no right to work overtime, and the FLSA does not limit or place a minimum on the number of hours an employee is required to work.

Q: Counsel for a new client within our Employment Law Service group sought advice this month from the group members, asking whether it was legal for the employer to require employees to provide a signed Social Security card at the time of hire, even if the employees have other identification to validate their ability to work in the United States.

A: No, this practice would be classified as discrimination under the Immigration Reform and Control Act as the employee is allowed to choose which documents he or she would like to provide for the I-9.  However, as Elaine Young, attorney from Salt Lake City, shared with our group, “for tax withholding purposes the employer is subject to penalties if they fail to accurately record an employee’s name and social security number as it is written on the card, and often employers ask for the SS card for that purpose (completing the W-4, etc.).  . . .  If your employer is making the request for tax withholding or wage reporting purposes, so they can be sure they are accurately recording SSNs, they may get comfort using the Social Security Number Verification Service (SSNVS) online.  They can use it to verify an SSN if the employee cannot present their actual SS card, and some employers use the SSNVS even where the employee does present a card.”

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.