Labor / Employment, On The Job

Comply Or Pay: The Judge Dredd-ish Requirements Of Employment Law

Watch out for these areas of the employer-employee relationship, where there's practically no room for error.

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Judge DreddAfter reading the advice of a certain airline industry expert, which I wholeheartedly agree with, I started thinking about what is truly non-negotiable in employment law. I am a quintessential lawyer type; I want rules. But I also want them to be reasonable. For the most part, the area of employment law is. Not like certain law enforcement examples. For what it’s worth, I think that in any situation with the potential to get dangerous (riding a plane; interacting with people carrying a weapon), complying is the best option. Stay alive and complain about it later. And thank goodness for phones that can record unobtrusively.

Employment law, however, is a lot like non-dangerous parts of life, and in general there are many gray areas. If you are in the Ninth Circuit, the prima facie case is a thing that pretty much every plaintiff has on their person. If you are in the Second Circuit, the prima facie case is a standard only the most obviously problematic behavior can meet. Be creative enough with your racial slurs and only use them once, and you may be in the clear. I am being only a little facetious.

But there are a few areas, believe it or not, on the issue of how employers treat employees, where there is very little room for error. There is a Judge Dredd, if you will, watching and waiting. It comes from a good place, though. There was a time when children were losing their limbs in barely functional equipment. Eight-year-olds were getting their pictures taken going to work.

These days, with very limited exceptions, an eight-year-old can’t do anything for pay legally. Why the change? The Fair Labor Standards Act, and its state relatives. And to protect what people do on their own time, the National Labor Relations Act was introduced. Now you think, that’s just for unions. But that is where you are wrong. The NLRA is why your employer can’t demand your Facebook password, or make how much they pay you confidential.

The FLSA and the NLRA are obviously coming from a good place. But they also are laws of near-zero tolerance. Either you meet them or you don’t. There is no “good faith effort” to comply with the FLSA. You have to pay your state’s minimum wage, or else. You pay someone for the full time they work, or else. Either you allow concerted effort by employees or you don’t.

With both the area of wages and activity outside of work, I get a lot of questions from both employers and employees about what they can do. And my answer is always the same: the law of the land states that you must pay an employee all of their wages on time, as agreed upon. No exceptions. And no, your employer cannot have your Facebook password or forbid you from discussing your salary.

Except people try to make these gray areas all the time. Deferred salary is a common one. Or all of an employee’s wages in equity and none in cash. These agreements may appear to be legal on their face. And there are many many ways to pay an employee. But there are just as many ways to get employee pay wrong when it is tinkered with. And getting it wrong is very expensive, subjecting you to a penalty two times (or more) of what you failed to pay.

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If you are an employer, and you are thinking about a policy that touches either the area of pay or employee activities outside of the workplace (including drug use), please go talk to an experienced employment attorney. Because there are real danger zones. What you pay your employees and how you treat them may be confidential to you and HR, but will never be confidential to them. And when and how you pay an employee is regulated by both state and federal law. With very little room for error. In light of this, I recommend the following:

  1. Pay employees as required by the law. Know how often your state requires you to pay, and pay at least that often. Be aware of the deductions that your state allows and/or requires, and how you are to provide information regarding deductions to your employees. And by all means, if you want to get fancy, hire a lawyer.
  2. Pay employees what you agree to. You can’t negotiate how much you will pay after the wages are earned. And don’t try to. You are asking for a lawsuit. Instead, be honest with employees and with yourself. If you really can’t pay them their full salary, tell them ahead of time, before the wages are earned. And let the employee choose. If they chose to continue working, talk to an attorney about how you structure any “deferred” payment, but be sure in writing you are not obligated to pay more than the company can pay. Layoffs are painful, but litigation is worse.
  3. Don’t intrude in your employee’s lives unnecessarily. If you pay fairly and treat employees professionally, this likely won’t be an impulse. Good clients of mine worry about social media, but they are all of the mind that they don’t want to know. But if you feel that you have to exert any real effort into managing an employee’s outside behavior, you are either a terrible boss or you hired the wrong employees. Fix one or the other, and the situation will go away without any need to discuss Facebook access.

If you are an employee and you are worried about this, here are a few key takeaways:

  1. Your pay is not confidential. In fact, if you are woman or a person of color, it is in your best interest to talk about it, unless you have accepted that you might be paid below market.
  2. Your pay is not negotiable after it is earned. Your employer must pay you all of your earned wages as often as is required by state law, or as stated in your agreement. Deferred compensation as I often encounter it (after the fact!) is illegal, and even if the employer finds a way to make their plan with you legal, it can’t be deferred indefinitely.
  3. Your social media is not your company’s property or concern, unless you make it. Review your privacy settings. And don’t be a jerk to strangers online. If your jerky behavior becomes public, then it is fair game for your employer.

The failure to pay wages and the desire to illegally control employee behavior are both common impulses of bad employers. Don’t be one of them, and try not to work for them. These are expensive and time-consuming lawsuits, and while the employee may have been a terrible employee, the employer will absolutely end up the bad guy if they violate the law in either of these areas. No matter how poorly someone performs, or how annoying their Facebook activity, you can’t have their password and you still have to pay them.

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beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.

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