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by PoP Sponsor December 18, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht and Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

If you work for a staffing company, you may be entitled to overtime pay.

A federal court recently ordered a major staffing company, Randstad, to pay employees overtime. Four former employees sued for unpaid overtime. The employees’ job duties included marketing and selling Randstad’s services, recruiting and placing workers, overseeing placements and performing administrative and clerical tasks. The Sixth Circuit Court of Appeals ordered Randstad to pay these employees, as well as any others who performed the same job duties, overtime pay for all hours worked in excess of 40 per workweek.

Am I entitled to overtime?

The Fair Labor Standards Act (FLSA) is a federal law that requires employers to pay certain employees overtime pay, which means employees must be paid at a rate of 1.5 times their regular hourly rate for any hours worked in excess of 40 hours per week. For example, say you make $10 per hour and worked 50 hours this week. Your employer must pay you $10 per hour for the first 40 hours, and $15 per hour for the remaining 10 hours.

However, certain employees, including some executives, administrative and professional employees, do not get overtime. These employees are considered “exempt.”

Whether an employee is exempt depends on several factors, including primary job duties. What matters is the employee’s actual day-to-day activities, rather than his/her title or position description. For example, in the Randstad case, the employees performed a mix of exempt and non-exempt job duties. However, the court decided that the employees were entitled to overtime because they spent the majority of their time on non-exempt tasks.

Other factors also determine whether you are exempt under the FLSA. These may include whether you are paid a salary or an hourly wage, and how much you earn.

Am I an exempt administrative employee?

Administrative employees are exempt if: (1) their primary duty is performing office or non-manual work that is directly related to management or general business operations; and (2) they exercise discretion and independent judgment about important matters. (more…)

by PoP Sponsor December 4, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht and Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

Social media makes it easy for people to engage in politics and to voice their opinions about important issues. However, using social media to engage in political discourse may negatively impact your job.

What is the Hatch Act?

The Hatch Act is a federal law that applies to certain federal government employees, as well as some state and local government employees who work with programs that receive federal funding. The purpose of the Act is to prevent political coercion and discrimination and to ensure that government programs are carried out in a fair manner. The District of Columbia has its own Hatch Act that applies to DC government employees. Both the federal and DC laws restrict when and how affected employees can participate in political activity.

How does the Hatch Act affect me?

The U.S. Office of Special Counsel website provides guidance and answers to FAQs about the Hatch Act and social media. In general, employees should not engage in political activity while on duty, in the workplace or in their official capacity. Employees should also not solicit or accept political contributions.

The same restrictions don’t apply to all employees. Restrictions vary based on who the employee works for and his or her job duties and position. For example, if you are a “less restricted” employee under the Hatch Act, you may use your personal cell phone, from your home, during non-work hours, to tweet about the president’s stance on health care. However, the Hatch Act prohibits “further restricted” employees from ever sharing the social media post of a partisan group. (more…)

by PoP Sponsor November 20, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht and Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

News of sexual harassment has dominated the media over the past several weeks. What are the signs of sexual harassment? What behavior rises to the level of illegal sexual harassment? And what are the solutions?

What is sexual harassment?

Sexual harassment encompasses a wide range of unwanted behavior. The law recognizes two distinct types of sexual harassment. The first type is hostile work environment. This occurs when a supervisor or coworker subjects an employee to unwelcome sexual conduct, which may include touching and/or comments. Unwelcome conduct does not necessarily have to be sexually explicit. For example, requests for dates or comments about physical appearance may constitute harassment, depending on the circumstances.

However, harassment is only illegal if it is “severe and pervasive,” which means that the harassment was so bad and occurred so frequently that it basically changed the employee’s work environment.

The second type or illegal sexual harassment is quid pro quo, where employment, or aspects of employment, are conditioned on satisfaction of a sexual demand. An example is when a supervisor hints that he/she will give an employee a promotion or a raise in exchange for a sexual favor.

How do I stop sexual harassment?

Your options depend on who you work for and where you work. Federal government workers must contact their agency’s EEO office within 45 days of the harassment. After the agency investigates, employees have several options, including the right to request a hearing before a U.S. Equal Employment Opportunity Commission (EEOC) administrative judge, or to file a lawsuit in federal court. (more…)

by PoP Sponsor November 6, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht and Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

New employees are frequently faced with a bundle of papers that they must sign when starting a new job. This may include a mandatory arbitration agreement, which could be buried in a lengthy employment handbook. If you are faced with signing an arbitration agreement, or have already signed one with your employer, it is important to read and understand the agreement and the rights you may be giving up.

What is an arbitration agreement?

Arbitration agreements limit an employee’s right to go to court in the event that a conflict arises that falls under the scope of the agreement. Instead of filing a lawsuit in court, an employee must file a demand for arbitration, where a neutral arbitrator will be appointed, review the evidence presented and decide on the outcome of the conflict. If the arbitrator decides the case in favor of the employee, he or she will also make a finding on damages.

What are the pros and cons of arbitration?

Employers frequently favor arbitration agreements because it is a less expensive alternative to litigating a conflict in court. Employers also view arbitration as more predictable, as a trained legal professional, oftentimes a lawyer or judge, will decide the outcome of a case rather than a jury.

Arbitration may also be more cost-effective for employees, and will likely mean a quicker result than if the employee litigated his or her case in court. However, in arbitration the employee will likely be limited in his or her ability to engage in discovery, which is extremely valuable in employment cases. (more…)

by PoP Sponsor October 23, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht and Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

Last week, a federal court ruled that employers must compensate hourly employees for rest breaks under 20 minutes.[1]

Progressive Business Publications used to give hourly employees two paid 15-minute breaks per day. However, in 2009, Progressive stopped paying employees for breaks. Instead, the company created a “flex-time” policy that allowed employees to log off their computers at any time. However, if the employee logged off for more than 90 seconds, he didn’t get paid. For example, employees weren’t paid for the time it took them to take a bathroom break.

The court said the company’s policy was “absolutely contrary” to the Fair Labor Standards Act (FLSA) because it “forces employees to choose between such basic necessities as going to the bathroom or getting paid.”

The court noted that if employees can take a bathroom break and get back to their desks in 90 seconds, they should be playing professional sports or advertising athletic footwear, instead of working for Progressive. Citing to Harry Potter in a footnote, the court doubted that an employee could manage such a feat even if they had access to a Portkey.

Am I entitled to take breaks?

The FLSA protects employees in every state, but it doesn’t require employers to provide meal or rest breaks. However, certain states have their own laws about employee breaks.

For example, under Maryland’s Shift Break law, retail employers must provide 15-minute breaks to employees who work four to six consecutive hours, and 30-minute breaks to those who work more than six consecutive hours.

There aren’t any additional state-level protections for Virginia and DC employees, but the FLSA still requires some paid breaks. (more…)

by PoP Sponsor October 9, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht & Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

With cold weather right around the corner, people around the District are lining up to get their flu shots. But did you know that DC law has one of the most generous employee sick leave policies in the nation?

What is FMLA leave?

The federal Family and Medical Leave Act allows qualifying employees to take unpaid leave for medical reasons. Qualified employees may take leave because of their own illnesses or to take care of a sick family member. However, DC has its own FMLA that gives employees additional rights. The DC FMLA provides more weeks of leave to more people:

Do I qualify for DC FMLA leave?

You may be entitled to take DC FMLA leave if you meet all of these requirements:

  • You work for an employer in DC that has more than 20 employees.
  • You worked for your employer for at least one year with no break in service. Holidays and sick and personal leave don’t count as a break in service. You don’t have to work for a continuous one-period during the year immediately before FMLA leave. However, the continuous period must have occurred sometime within the past seven years.
  • You worked at least 1,000 hours during the past 12 months. Paid leave for holidays, illness and vacation, as well as military leave, count towards the hourly requirement.

(more…)

by PoP Sponsor September 25, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht & Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

Will my underage drinking arrest prevent me from getting a security clearance?

Can I get a clearance if I smoked pot?

Can the government revoke my clearance because of my bad credit?

Can I get a security clearance?

Many federal employees and contractors need security clearances. The Office of Personnel Management (OPM) is a federal government agency that determines who is eligible to hold a clearance. OPM considers numerous factors, such as:

  • Allegiance to the United States
  • Foreign influence
  • Foreign preference
  • Sexual behavior
  • Personal conduct
  • Financial considerations, including falling behind on bills or loans
  • Alcohol consumption
  • Drug involvement
  • Emotional, mental and personality disorders
  • Criminal conduct
  • Security violations
  • Outside activities
  • Misuse of Information Technology systems

(more…)

by PoP Sponsor September 11, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht & Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

You’re filling out a job application and get to the section about job references. Who do you list? A good job reference can make all the difference in you getting a new job.

What you may not realize is that your former or current employer doesn’t have to give you a good reference. Generally speaking, your boss is free to tell your prospective employer the truth about what kind of employee you were. If it is true, your former employer can say that you were fired for misconduct, that you quit without giving notice, or that your last performance review wasn’t so great.

How can I prevent my employer from giving me a bad job reference?

In most cases, a valid contract is the only way to limit what your employer can say about you. For example, a settlement or severance agreement may guarantee you a neutral reference that includes only certain information, such as your dates of employment and job title.

However, even a signed agreement will not guarantee a neutral reference for security clearance and government suitability determinations. Despite a valid contract, the law requires employers to provide honest information in connection with security clearance and suitability investigations.

What if my boss gives me an unfair job reference?

Your current or former employer has the right to provide truthful information to prospective employers. However, they don’t have the right to falsely criticize you or lie about your performance or conduct. If a former or current employer lies about you, he or she may be liable for defamation (i.e., making a false and harmful statement about you to someone else).

Do you have questions about job references?

If you have questions about job references, employment contracts, or security clearances, contact Alan Lescht and Associates today. Call us at (202) 463-6036; send us an email; or visit our website and blog. Our 13 attorneys have vast experience in all areas of employment law. Super Lawyers, Washingtonian, Newsweek, AVVO, and others have recognized us as a leading employment firm in DC.

DISCLAIMER: This article is for general information purposes and is provided only to permit you to learn about Alan Lescht and Associates, P.C., and its services. This information is subject to change, may not apply in all cases, and does not constitute legal advice. Contact an attorney to obtain legal advice about your case.

by PoP Sponsor August 28, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht & Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

That’s right. The federal government rewards individuals who properly report companies that overcharge or otherwise defraud the government. Last year, the federal government paid out more than $519 million to people who came forward with information that led to the discovery of fraud against the government. These individuals filed lawsuits under the False Claims Act (FCA), which prohibits companies, people, and even local and state governments from submitting false claims for payment to the federal government.

What is a false claim?

Under the FCA, it is illegal to submit a claim for payment to the federal government that you know or should know is false. Some claims are expressly false, like when a doctor bills Medicare for services the doctor did not provide.

Other claims are impliedly false. In a recent case, a company had a contract with the government to provide armed guards. The contractor hired guards that did not meet the shooting accuracy requirements in the contract. Although no one explicitly told the government the guards actually met the contract requirements, the contractor knew the guards were unqualified but billed the government anyway.

FCA violations can occur in any industry that is connected to federal funding. Here are some real-life examples:

  • Medicare/Medicaid: IPC Healthcare, Inc., recently paid more than $60 million in settlement after billing Medicare and Medicaid for more expensive services than it provided (commonly known as “up-coding).”
  • Defense contractors: A court ordered a defense contractor to pay $24 million for engaging in a bid-rigging conspiracy to inflate prices the contractor charged to ship goods for military families.

(more…)

by PoP Sponsor August 14, 2017 at 12:15 pm 0

This column is written and sponsored by Alan Lescht & Associates, PC, an employment litigation firm in Washington, DC, that handles cases involving contract disputes, wage and hour issues, discrimination and retaliation, wrongful termination, whistleblower retaliation and security clearances.

A non-compete agreement is a contract between an employee and an employer that limits the employee’s ability to disclose information and to work in the future. A non-compete usually prohibits an employee from competing with the employer for a certain period of time, and in a certain location, after his employment ends. This means that an employee could not work for a competing business or start his own business to compete with his former employer.

Why does my employer want me to sign a non-compete?

Employers use non-compete agreements to protect their trade secrets and valuable information. For example, a non-compete agreement could prevent an employee from going to work for a competitor and sharing her former employer’s confidential information with her new employer.

Companies also use non-competes to protect investments they make in their employees. Many employers provide or pay for employee training. A non-compete may be intended to prevent an employee from using that training to get a new job with a competitor.

(more…)

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