Wrongful Termination

Wrongful termination: Take 6 steps to keep firing from burning you

In most states, workers are employed on an “at will” basis. That means employers typically may terminate workers at any time for any legal, nondiscriminatory reason. However, at-will status doesn't mean you won’t get sued. More and more employees are filing and winning wrongful-termination lawsuits that allege they were fired for some discriminatory reason or in retaliation for engaging in protected activity. Employees and lawyers often look at wrongful-termination suits as easy pickings, good at least to squeeze a quick settlement from an employer. The key, then, is prevention. Minimize your exposure to wrongful-termination claims by following these six steps.

1. Use progressive discipline

Establishing a step-by-step process for discipline is the most reliable way to protect your organization from wrongful termination charges.Clearly outline the behaviors that may trigger discipline and the actions you will take as a result. That ensures fair and consistent treatment for poor performers. Make sure supervisors know they must follow the procedures. A written policy is a powerful defense in court.

2. Publicize your policies

Ensure that everyone is on the same page by including your progressive discipline policy in your handbook, Have employees read and sign it. In addition to providing documentation in case of lawsuits, this gives employees a chance to correct performance problems.

Advice: Regularly review all policies for relevance. Attendance and misconduct policies, for example, probably don’t change often, but your dress code may.

3. Regularly review performance

Employees who are surprised by firings are more likely to sue. Also employees often introduce in court inconsistencies between performance evaluations and adverse decisions to demonstrate that the company’s reason for terminations were just excuses to fire employees for other, unlawful reasons.

4. Document all warnings

Develop forms for oral and written warnings. Use them religiously. Include a section that asks the manager to describe the problem and what the employee was asked to do to improve it, plus any warning about what would happen if the problem resurfaced. Finally, document what the employee said in response and ask the employee to sign it.

5. Beware constructive discharge

Some managers try to sidestep the unpleasant task of firing by resorting to constructive discharge. The logic: If I make an employee’s work experience intolerable, he or she will choose to quit. This exposes your organization to charges of discrimination by the targeted employee. The employee will argue in court that he or she was singled out for special, unfair treatment.

6. Watch your timing

Avoid firing employees immediately after they have filed complaints. One test the courts use to determine whether a worker was fired in retaliation for a complaint is timing. Firing workers just after they file a complaint or return from protected leave is asking for legal trouble. In such cases, it is best to wait and build an airtight case for dismissal.

Time is Money: On or Off the Clock

TIME IS MONEY: ON OR OFF THE CLOCK?

Many managers still don’t understand the Fair Labor Standards Act.

Virtually every week I hear about another employer allegedly requiring, encouraging or tolerating situations in which nonexempt employees are working off the clock. Even large employers with robust compliance programs are not immune to such legal missteps.

Of course, it is not just larger employers being sued. Employers with relatively few workers – that literally cannot afford the cost of defense – are being sued, too.

The goal for employers is not to win “off-the-clock” cases but to avoid them.

Consider these suggestions for minimizing your exposure to such claims and maximizing your chances of winning if such a claim is brought.

Basic Principles

            Some strategies for avoiding off-the-clock cases should take employers back to the basics, including training and retraining, enforcing policies that prohibit off-the-clock work, and encouraging managers to report suspected off-the-clock work to HR.

            Train and retrain. Provide supervisors with training that makes clear they cannot require, encourage or even suggest that nonexempt employees work off the clock.

            The most important message to convey is that supervisors cannot direct someone to work off the clock, explicitly or implicitly. Also, include guidance on how to address restrictions on overtime.

            The untutored have said, “We cannot pay for any overtime.” Some employees have heard “work it but don’t record it.”

            Where overtime is not permitted, make clear that “No one is permitted to work any overtime” as opposed to saying, “We cannot afford any overtime.”

            Let supervisors know that if they break the foregoing rule, they will be subject to discipline up to and including discharge.

            Carry a big stick. Let supervisors know that if they require, encourage or even suggest that an employee work off the clock, they will be subject to discipline up to and including discharge. This prohibition will help prove that deviations were those of a rogue supervisor and not part of an established corporate culture.

            Make clear that among the most serious violations would be altering an employee’s time to reduce the amount owed to him or her to stay within budget. Almost always, such “wage theft” should result in immediate discharge.

            Don’t go it alone. Train supervisors to report incidences to HR if they know, or have reason to know, that an employee may have worked off the clock, even if the employee has not said anything.

            In harassment cases, it is not enough to avoid objectionable conduct. If employers have actual or constructive knowledge of it and ignore it, they are condoning it. Doing nothing is not a defense; it is an admission.

            The same principle has been adopted in the wage and hour context. Even if employers don’t require, encourage or suggest that an employee work off the clock, employers cannot allow it if they have reason to believe it may have occurred.

            Supervisors need training on the obligation to report to HR potential off-the-clock work so that HR professionals can talk with the employee and determine whether and what is owed to him or her. If there is a pattern of working extra hours without permission, this may be cause for discipline of the employee, but the employee almost always should be paid.

Clear Policies

            Don’t leave employees guessing about the organization’s policy on off-the-clock work. Spell out the employer’s make it clear that off-the-clock work is not permitted and that there may be disciplinary action for it. That said, set up a process encouraging employees to report off-the-clock work to HR without fear of retaliation.

            Pay up. Develop a procedure HR professionals can use when they speak with employees who report off-the-clock work.

            Use the procedure to determine if they are telling the truth, and then make sure they are properly paid.

            If a supervisor reports that an employee has or may have worked off the clock, an HR professional should contact the employee. HR needs to determine whether the employee performed any off-the-clock work and how much time is involved. An appropriate adjustment must be made.

            Sometimes, HR professionals make the mistake of assuming that no money is owed as long as the employee does not go over 40 hours in a workweek or eight hours in a day in California. Payment may be owed for off-the-clock work, even if the employee does not become eligible for overtime.

            For example, assume that an employee is paid a salary for working 35 hours for a workweek. If the employee works additional hours but is short of 40, the employee generally must be paid for the “gap time.”

            Be specific. Develop a policy that prohibits off-the-clock work. Leave no doubt that employees must record all time worked.

            Make clear that you will not tolerate any off-the-clock work and that all work must be on the clock.

            A general rule is not enough. Spell it out. For example:

    -       An employee may not do any work before clocking in, and, if he or she does, management must be contacted to override the start time so that he or she will be paid for all time worked.

    -       An employee may not do any work after clocking out, and, if he or she does, management must be contacted to override the stop time so that he or she will be paid for all time worked.

            Have an open-door policy. Develop a complaint procedure with appropriate assurances of non-retaliation so that employees can report concerns without fear of retribution. There must be a strong policy and a robust complaint procedure. Contacting their supervisors should not be employees’ only option. After all, supervisors often are the perceived perpetrators.

            At a minimum, employees should be given the option of speaking with HR as an alternative. Employers may want to go one step further and provide another option outside of HR, just in case the problem employee works for HR.

            Of course, the policy should prohibit retaliation, which should be defined broadly. If employees don’t feel comfortable raising their concern in-house, they could consult with a plaintiffs’ lawyer and you could end up in court.

Automated Backup

          Technology can be HR’s friend or foe in preventing off-the-clock work. On the one hand, time-keeping systems may be adjusted to provide HR with notifications about interrupted meal breaks or other off-the-clock work.

            While technology may facilitate tele-work, however, telecommuting poses unique compliance risks to employers, particularly regarding their nonexempt employees.

            Tweak time-keeping system. Determine whether questions should be included in your time-keeping system that ask employees if they have done work off the clock, so that you can follow up with the employees, capture any time worked but not recorded, and then pay them for it.

            Most employees are honest, but some are not. How do you protect yourself against those who may claim later that they worked hours off the clock but then bring bad-faith claims?

            Most modern time-keeping vehicles include the potential for questions at the beginning or end of each shift. The answers may be helpful in ensuring that employees are paid in real time, as they should be, and in defending against false claims.

            For example, at the beginning of every shift, employees can be asked before they clock in if they have done any work since they clocked out on their last shift. If they answer yes, HR should receive notification and speak with the employees.

            Similarly, at the end of the day, ask a question about the employee’s meal break, such as “Did you enjoy an uninterrupted meal break of 30 consecutive minutes?” If the answer is no, either HR would be contacted to determine if payment is owed or the unpaid meal break would be automatically converted to paid time.

            If an employee who responds affirmatively to the meal break query later claims that he or she was interrupted almost every day but not paid, any subsequent allegations are inconsistent with his or her prior answers, sometimes referred to as attestations. This should weigh heavily against an employee’s credibility.

            Limit tele-work. Establish clear rules about whether and when employees may work remotely, such as checking e-mail, and how to ensure that time is properly documented and paid.

            Sometimes it is your hardest-working employees who can cause trouble in this area because they log in at all hours and perform work. While their intentions are likely noble, you could pay a handsome price for such dedication.

            Set boundaries for remote work, even for stellar employees. For example, you could block remote access to your network by nonexempt employees. Or, you could allow access only if approved and provide guidance on how to record the time to ensure proper payment.

            A similar issue arises with personal digital assistants. The safest policy legally is to deny your nonexempt employees smartphones, BlackBerry devices and the like. But is that smart from a business perspective?

            There may be times when nonexempt employees need these devices, so set limits as to when they can use the devices and pay them appropriately.

            For example, you might set a specific block of time outside of working hours when a marketing employee away on business can use his or her BlackBerry. If you allow such periodic use, under the continuous day rule your duty to pay could be continuous, too.

            Even if you have not developed specific policies yet, if you have reason to know an employee may have done work remotely, you must speak with the employee and pay him or her accordingly.

            To illustrate this point: A client forwarded me an e-mail from her assistant regarding information that we needed to respond to a U.S. Equal Employment Opportunity Commission charge. The message was “Good news. See below.”

            My response: “Not really. See when your nonexempt assistant sent it to you!”

High Deductible Health Insurance Plans

High Deductible Health Insurance Plans

If you're looking to cut your health care insurance premium, one route is a high-deductible insurance plan. Proponents like to call high-deductible plans "consumer-directed health care plans." In exchange for a relatively low annual premium, your insurance doesn't kick in until you've met your deductible, which is often $3,000 or more.

The low premium is the main appeal for high-deductible plans. When you do meet your deductible, you're still likely to have a co-pay or co-insurance for your medical needs. A co-pay is the fee you pay when you visit a doctor; co-insurance is the percentage of the total bill that you pay.

For many people, the low monthly premium is worth the high deductible. High-deductible plans are typically yoked with a health savings account or flexible spending account, which allows you to save money on a tax-deferred basis for health care costs. While you're still paying real money out of pocket, the tax savings ease the pain a bit. Health savings plans can roll over balances from one year to the next, and your employer may also contribute to it.

For many people who like relatively uniform costs and dislike the possibility of big costs, then traditional health care plans are probably best. And that's particularly true if you have ongoing health issues.

If you're young and healthy and broke, a high-deductible insurance policy could be a good idea, provided you're not a hang-glider. Similarly, if you're older and healthy and have a good savings cushion, a high-deductible option is a nice way to save on premiums.

In any event, when you are shopping for plans you need to weigh out all the options for each individual situation. The world of health insurance is not a one size fits all solution!

Laws Affecting Employee Benefits

As a business owner there are many Laws affecting your employee benefit plans. See below for definitions.

• ERISA. The Employee Retirement Income Security Act (ERISA) sets standards for the establishment and operation of employee benefits plans. If you offer employees a health insurance plan or a retirement plan, chances are you’re covered by ERISA. Some ERISA requirements apply to both retirement and welfare benefit plans. (Welfare plans are generally those that provide health, life, or disability benefits.)

• ADA. The Americans with Disabilities Act (ADA) and ADA Amendments Act prohibit discrimination in benefits based on disabilities. For example, employer health plans can’t single out a group of disabled people for lesser benefits than individuals who aren’t disabled.

• Age discrimination laws. The Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA) protect older workers from discrimination in their employment benefits. Employers can be liable for discrimination against active employees as well as retirees. That means you can’t give lower benefits to employees or retirees based on their age.

• HIPAA. The Health Insurance Portability and Accountability Act (HIPAA) also bars discriminatory practices in the handling of benefits. Additionally, HIPAA imposes portability, privacy, security, and certain other requirements on group health plans. On February 17, 2009, President Barack Obama signed an economic stimulus bill called the American Recovery and Reinvestment Act of 2009 (ARRA), into law, which expands HIPAA’s privacy and security regulations. Under the ARRA, business associates of covered entities will be directly subject to HIPAA. The stimulus plan also extensively changes HIPAA on other issues, including security breaches and related notification requirements, the rights of individuals regarding their protected health information, and increased enforcement and penalties for violations.

• COBRA. The Consolidated Omnibus Budget Reconciliation Act (COBRA) was designed to protect employees and their families from losing health benefits if the employees lost their jobs. Under COBRA, an individual may usually keep health coverage through a previous employer’s health plan for up to 18 months by paying 102% of the cost of coverage. Under the ARRA, the federal government paid 65% of COBRA premiums for up to nine months for employees who were involuntarily terminated between September 1, 2008, and December 31, 2009. This subsidy has been extended several times by Congress.

• Other laws. When evaluating benefits packages, employers also must take into account IRS regulations, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Mental Health Parity and Addiction Equity Act, the Medicare Modernization Act (MMA), Title VII of the Civil Rights Act of 1964, and the Equal Pay Act.

(Adapted from HRHero.com)

With all of these laws and regulations it can often be overwhelming for new and veteran business owners alike. Instead of taking a legal risk you can sit down with an expert for a free evaluation. Be sure to protect your hard work and life earnings. Contact us today, and speak with an expert: 216-831-1220 

The Five Most Desired Employee Benefits

The Five Most Desired Employee Benefits

The importance of employee benefits is something that can't be overstated. Most employees value their benefits as much as they do their salary, so much that one survey found that almost ninety percent of employees said their employee benefits meant as much as their salary. Obviously not all employee benefits are created equally and certain ones are more valued than others. Surprisingly, some of the most desired employee benefits aren't what you might think. Looking at the employee benefits that the workforce desires most will help you formulate a benefit package that will help keep your current employees happy and attract the best new hires when openings appear.

1.       Retirement Plans – One of the top two most desired employee benefits are retirement plans. Over ninety percent of respondents to one survey rated this as the most important of all employee benefits, while a separate study found that over sixty percent rated it at the top of their list. The reason is obvious – people want to know that their future is secure. Having a great retirement plan ensures that they know that.

2.       Health Insurance – A lot has been said about health insurance in America, and the future of employee health insurance is still somewhat unknown. But for now health insurance ranks among the most wanted of any employee benefits a company can offer its workers. Various options exist and even seven out of ten small businesses offer health insurance as part of their employee benefits package. With health costs continuing to rise, insurance is one aspect of employee benefits that will never go out of style.

3.       Life Insurance – Right behind the top two most desired employee benefits is life insurance. There's certainly something to be said for knowing that your loved ones will be taken care of after you're gone, and life insurance is that peace of mind that many employees desire. Most employee benefits packages offer some form of life insurance – twenty nine percent, in fact.

4.       Paid Leave – Almost eighty percent of businesses offer paid leave of some form as part of its employee benefits package, making it the most common type of benefit available today. This could include vacation leave, sick days, or holiday pay. While not as desired as some of the other employee benefits, studies still suggest that it matters a lot.

5.       Tele-Commuting – Surprisingly, forty percent of employees surveyed in a recent study rated the ability to work from their home computer as their most desired out of any employee benefits. The reasons are, like most others on this list, obvious. The chance to work from home provides numerous benefits including tax breaks, saved money on transportation costs, and much more. And many companies are taking note. The number of businesses offering telecommuting options as part of its employee benefits package is growing steadily.

There are many other employee benefits that workers included on their list, including discounted home loans, child care subsidies, flexible spending accounts, and even company discounts. Creating a great employee benefits package is important for your business.

- See more at: http://www.unicornhro.com/articles/the-five-most-desired-employee-benefits#sthash.9Q2ljSsa.dpuf

Understanding Health Plan Cost

What to Consider: 

Ask About Costs Before You Join a Health Plan

Talk to your employer or insurance broker, or call the plan.

• What is the monthly premium? (The amount that you or your employer pays each month.)
• What is the yearly deductible? (The amount you have to pay each year before the plan starts to pay.)
• Is there a separate deductible for different kinds of services? (For example one deductible amount for prescriptions and a different deductible amount for other medical services).
• What costs (e.g. co-pays or co-insurance) or services (e.g. hospital, surgery) apply towards the deductible?
• What is the yearly out-of-pocket-maximum?
• This is the total you have to pay each year for most of your covered services. It does not include your premiums. Each family member has a yearly out-of-pocket maximum, and there may be a family out-of-pocket-maximum also. When an individual or family reaches the maximum, they do not have to pay most out-of-pocket costs for the rest of the year.
• Ask what costs (e.g. co-pays, co-insurance, deductibles) apply towards the yearly out-of-pocket maximum.
• What is the co-pay or co-insurance that you pay
• When you have an office visit?
• For prescription drugs?
• For a hospital stay?
• For an emergency room visit?

Follow Your Health Plan's Rules

• You may have to pay the whole bill if:
• You see a specialist without a referral from your primary care doctor and prior approval from your medical group or health plan.
• You see a provider who is not in your health plan's network, unless it is an emergency or you have a referral and prior approval. The network is all the doctors, hospitals, and other providers who have contracts with your plan to provide care to plan members
• You go to an emergency room for non-emergency care.
• You get care outside your health plan's service area, unless it is emergency or urgent care.
• You fill a prescription for a drug that is not on your health plan's list of approved drugs or you fill your prescription at a pharmacy outside your plan’s network.
• You get services that are not part of your benefit package.

How can I find out how much a service will cost if I have a high deductible?

Ask your doctor, hospital, or other provider for the procedure code for the service you need. Then, call your health plan and ask the cost for this service. Some plans with high deductibles post the costs of common services on their websites.

This break down of insurance factors was found on the CA.gov website. 

Time is Money

TIME IS MONEY: ON OR OFF THE CLOCK?

Many managers still don’t understand the Fair Labor Standards Act.

Virtually every week I hear about another employer allegedly requiring, encouraging or tolerating situations in which nonexempt employees are working off the clock. Even large employers with robust compliance programs are not immune to such legal missteps.

Of course, it is not just larger employers being sued. Employers with relatively few workers – that literally cannot afford the cost of defense – are being sued, too.

The goal for employers is not to win “off-the-clock” cases but to avoid them.

Consider these suggestions for minimizing your exposure to such claims and maximizing your chances of winning if such a claim is brought.

Basic Principles

            Some strategies for avoiding off-the-clock cases should take employers back to the basics, including training and retraining, enforcing policies that prohibit off-the-clock work, and encouraging managers to report suspected off-the-clock work to HR.

            Train and retrain. Provide supervisors with training that makes clear they cannot require, encourage or even suggest that nonexempt employees work off the clock.

            The most important message to convey is that supervisors cannot direct someone to work off the clock, explicitly or implicitly. Also, include guidance on how to address restrictions on overtime.

            The untutored have said, “We cannot pay for any overtime.” Some employees have heard “work it but don’t record it.”

            Where overtime is not permitted, make clear that “No one is permitted to work any overtime” as opposed to saying, “We cannot afford any overtime.”

            Let supervisors know that if they break the foregoing rule, they will be subject to discipline up to and including discharge.

            Carry a big stick. Let supervisors know that if they require, encourage or even suggest that an employee work off the clock, they will be subject to discipline up to and including discharge. This prohibition will help prove that deviations were those of a rogue supervisor and not part of an established corporate culture.

            Make clear that among the most serious violations would be altering an employee’s time to reduce the amount owed to him or her to stay within budget. Almost always, such “wage theft” should result in immediate discharge.

            Don’t go it alone. Train supervisors to report incidences to HR if they know, or have reason to know, that an employee may have worked off the clock, even if the employee has not said anything.

            In harassment cases, it is not enough to avoid objectionable conduct. If employers have actual or constructive knowledge of it and ignore it, they are condoning it. Doing nothing is not a defense; it is an admission.

            The same principle has been adopted in the wage and hour context. Even if employers don’t require, encourage or suggest that an employee work off the clock, employers cannot allow it if they have reason to believe it may have occurred.

            Supervisors need training on the obligation to report to HR potential off-the-clock work so that HR professionals can talk with the employee and determine whether and what is owed to him or her. If there is a pattern of working extra hours without permission, this may be cause for discipline of the employee, but the employee almost always should be paid.

Clear Policies

            Don’t leave employees guessing about the organization’s policy on off-the-clock work. Spell out the employer’s make it clear that off-the-clock work is not permitted and that there may be disciplinary action for it. That said, set up a process encouraging employees to report off-the-clock work to HR without fear of retaliation.

            Pay up. Develop a procedure HR professionals can use when they speak with employees who report off-the-clock work.

            Use the procedure to determine if they are telling the truth, and then make sure they are properly paid.

            If a supervisor reports that an employee has or may have worked off the clock, an HR professional should contact the employee. HR needs to determine whether the employee performed any off-the-clock work and how much time is involved. An appropriate adjustment must be made.

            Sometimes, HR professionals make the mistake of assuming that no money is owed as long as the employee does not go over 40 hours in a workweek or eight hours in a day in California. Payment may be owed for off-the-clock work, even if the employee does not become eligible for overtime.

            For example, assume that an employee is paid a salary for working 35 hours for a workweek. If the employee works additional hours but is short of 40, the employee generally must be paid for the “gap time.”

            Be specific. Develop a policy that prohibits off-the-clock work. Leave no doubt that employees must record all time worked.

            Make clear that you will not tolerate any off-the-clock work and that all work must be on the clock.

            A general rule is not enough. Spell it out. For example:

    -       An employee may not do any work before clocking in, and, if he or she does, management must be contacted to override the start time so that he or she will be paid for all time worked.

    -       An employee may not do any work after clocking out, and, if he or she does, management must be contacted to override the stop time so that he or she will be paid for all time worked.

            Have an open-door policy. Develop a complaint procedure with appropriate assurances of non-retaliation so that employees can report concerns without fear of retribution. There must be a strong policy and a robust complaint procedure. Contacting their supervisors should not be employees’ only option. After all, supervisors often are the perceived perpetrators.

            At a minimum, employees should be given the option of speaking with HR as an alternative. Employers may want to go one step further and provide another option outside of HR, just in case the problem employee works for HR.

            Of course, the policy should prohibit retaliation, which should be defined broadly. If employees don’t feel comfortable raising their concern in-house, they could consult with a plaintiffs’ lawyer and you could end up in court.

Automated Backup

          Technology can be HR’s friend or foe in preventing off-the-clock work. On the one hand, time-keeping systems may be adjusted to provide HR with notifications about interrupted meal breaks or other off-the-clock work.

            While technology may facilitate tele-work, however, telecommuting poses unique compliance risks to employers, particularly regarding their nonexempt employees.

            Tweak time-keeping system. Determine whether questions should be included in your time-keeping system that ask employees if they have done work off the clock, so that you can follow up with the employees, capture any time worked but not recorded, and then pay them for it.

            Most employees are honest, but some are not. How do you protect yourself against those who may claim later that they worked hours off the clock but then bring bad-faith claims?

            Most modern time-keeping vehicles include the potential for questions at the beginning or end of each shift. The answers may be helpful in ensuring that employees are paid in real time, as they should be, and in defending against false claims.

            For example, at the beginning of every shift, employees can be asked before they clock in if they have done any work since they clocked out on their last shift. If they answer yes, HR should receive notification and speak with the employees.

            Similarly, at the end of the day, ask a question about the employee’s meal break, such as “Did you enjoy an uninterrupted meal break of 30 consecutive minutes?” If the answer is no, either HR would be contacted to determine if payment is owed or the unpaid meal break would be automatically converted to paid time.

            If an employee who responds affirmatively to the meal break query later claims that he or she was interrupted almost every day but not paid, any subsequent allegations are inconsistent with his or her prior answers, sometimes referred to as attestations. This should weigh heavily against an employee’s credibility.

            Limit tele-work. Establish clear rules about whether and when employees may work remotely, such as checking e-mail, and how to ensure that time is properly documented and paid.

            Sometimes it is your hardest-working employees who can cause trouble in this area because they log in at all hours and perform work. While their intentions are likely noble, you could pay a handsome price for such dedication.

            Set boundaries for remote work, even for stellar employees. For example, you could block remote access to your network by nonexempt employees. Or, you could allow access only if approved and provide guidance on how to record the time to ensure proper payment.

            A similar issue arises with personal digital assistants. The safest policy legally is to deny your nonexempt employees smartphones, BlackBerry devices and the like. But is that smart from a business perspective?

            There may be times when nonexempt employees need these devices, so set limits as to when they can use the devices and pay them appropriately.

            For example, you might set a specific block of time outside of working hours when a marketing employee away on business can use his or her BlackBerry. If you allow such periodic use, under the continuous day rule your duty to pay could be continuous, too.

            Even if you have not developed specific policies yet, if you have reason to know an employee may have done work remotely, you must speak with the employee and pay him or her accordingly.

            To illustrate this point: A client forwarded me an e-mail from her assistant regarding information that we needed to respond to a U.S. Equal Employment Opportunity Commission charge. The message was “Good news. See below.”

            My response: “Not really. See when your nonexempt assistant sent it to you!”