The Employer's Legal Resource - November 2010

Last month we told you about the recently announced partnership between the Occupational Safety and Health Administration and the Department of Transportation to combat "distracted driving" on the job. This month there is more to report. On October 27, the DOT implemented regulations prohibiting texting while driving commercial motor vehicles (CMV). The regulations also prohibit motor carriers from requiring or allowing their drivers to engage in texting while driving. According to the Department of Transportation, the odds of being involved in a safety-critical event, such as a crash, near-crash, or unintentional lane deviation, is 23 times greater for CMV drivers who text while driving than for those who do not.

CMVs are "any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle

(1) has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,563 kg (10,001 pounds) or more, whichever is greater; or

(2) is designed or used to transport more than 8 passengers (including the driver) for compensation; or

(3) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

(4) is used in transporting [hazardous material as defined by regulations]."

The regulations define "texting" as manually entering alpha-numeric text into, or reading text from, an electronic device, including emailing, instant messaging, internet searches, and any other form of electronic text retrieval or entry.

For the purpose of the regulations, "driving" means operating a commercial motor vehicle, with the engine running, including while temporarily stationary because of traffic, a traffic control device, such as a stoplight or stop sign, or any other momentary delays.

Employers and drivers caught violating the rule may face sanctions such as civil penalties and disqualification from operating CMVs in interstate commerce.

The regulations do not affect a driver's ability to use a cell phone for phone calls, use a GPS or navigation system, or electronic dispatching tools or fleet management technology.

If you employ drivers of CMVs, you will want to ensure that your drivers are aware of the ban. You may want to consider implementing company policies prohibiting your drivers of CMVs from texting on the job. Additionally, you should not require, encourage, or permit your drivers to text while driving.

If you do not employ drivers of CMVs, it might still be a good idea to heed this trend. You may want to consider prohibiting employees from texting if they are driving company vehicles or driving for company business. Thirty states and the District of Columbia prohibit texting while driving. While Oklahoma does not currently have any laws prohibiting texting while driving, the Oklahoma House and Senate have recently voted in favor of bills restricting drivers' use of cell phones. We will, of course, keep you updated on any new laws or regulations.

By Kenneth T. Short, kshort@dsda.com

The Fair Labor Standards Act, known affectionately as the FLSA, is a federal law that establishes minimum wage, overtime pay, record keeping and child labor standards. The FLSA requires, among other things, that most employees be paid overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. There is, however, an exemption from the overtime pay requirements for employees who meet certain criteria. To qualify for the exemption, the job held by the employee must meet certain tests, and the employee must be paid on a salary basis at not less than $455 per week.

Although the requirements of the overtime exemption have been in place for many years, we continually see employers who do not fully understand them or apply the requirements incorrectly. In this series of articles, we'll remind you of what you can do, what you can't do, and how to dig yourself out of a hole when you find out you've been doing what you can't do.

First, the term "salary basis" reflects the concept of a guaranteed wage - that is, the employee must be paid a certain amount no matter how many hours the employee actually works. Any pay formula that results in a wage guaranty is sufficient. For example, a worker is a "salary basis" employee whether guaranteed a minimum weekly wage or guaranteed a certain number of work shifts which will produce a wage of that guaranteed amount.

With few exceptions (to be addressed next month), an exempt employee must receive a full salary for any week in which the employee performs any work, regardless of the number of days or hours actually worked. The exempt employee, however, is not entitled to be paid for any week in which the employee performs no work.

An employer may never deduct from pay for absences of an exempt employee occasioned by jury duty, attendance as a witness, or temporary military leave. The employer, however, may offset any amounts received by the employee as jury fees, witness fees, or military pay for a particular week against the salary due for that particular week without loss of the exemption.

An employer may never deduct from pay for absences occasioned by the employer or by the operating requirements of a business. If an exempt employee is ready, willing and able to work, deductions may not be made for time when work is not available. For example, an employer may not deduct from pay when the employer closes the business as a result of bad weather.

Next month we'll discuss the limited circumstances which allow an employer to make deductions from the pay of an exempt employee.

By Rebecca M. Fowler rfowler@dsda.com

Under the Hiring Incentives to Restore Employment Act, known as the HIRE Act, employers have until December 31, 2010 to hire new employees and get two valuable tax incentives:

1. An exemption from the employer's 6.2% share of Social Security
(i.e., OASDI) employment taxes on wages paid in 2010 to a newly
hired qualified individual; and

2. A $1,000 per employee federal income tax credit.

The payroll tax relief applies only to wages from March 19, 2010, to December 31, 2010. For the employer to also claim a tax credit, the worker must remain employed for 52 consecutive weeks and his or her wages during the last 26 weeks must equal at least 80% of his or her wages for the first 26 weeks. The credit amount is the lesser of $1,000 or 6.2% of his or her wages during the 52-week period.

Until recently, it was unclear as to the effect of a temporary absence by a "qualified employee." The IRS has recently clarified this situation. Whether an individual may still qualify following a temporary absence, depends on the following analysis:

Short Term/Temporary Interruption. The IRS ruled in Information Letter 2010-0198 that someone who is already a qualified employee who experiences a short term or temporary interruption in work continues to be a qualified employee unless the interruption constitutes a termination of employment. Whether a short term or temporary interruption of an employee's performance of services constitutes a termination depends on the facts and circumstances. If the individual's employment is terminated, he will have to (again) meet qualified employee status requirements when rehired. See HIRE Act: Questions and Answers for Employers.

Former Employees. For a former employee to qualify for the payroll exemption, his former employment must be considered terminated so he can begin employment after February 3, 2010 and before January 1, 2011. In addition, he must be employed for less than 40 hours during the prior 60 days. The former employee cannot re-qualify unless he hasn't been employed for more than 40 hours during the 60-day period ending on the date employment begins with the qualified employer.

To qualify, a hire must:

1. Commence employment after February 3, 2010 and before January
1, 2011;

2. Certify on Form W-11 that he or she has not been employed with the
qualified employer for more than 40 hours during the 60-day period
ending when employment begins;

3. Not replace another employee unless the employee left voluntarily
or for cause; and

4. Not be related to the employer.

HIRE Act: Questions and Answers for Employers

By Jeffrey C. Rambach, jrambach@dsda.com

super lawyers announced

top 25 women attorneys in oklahoma

Listed among the top 25 women attorneys in Oklahoma by the 2010 Super Lawyers are:

Elise Dunitz Brennan	Health Law
Kristen L. Brightmire	Employment Law
Linda C. Martin	Environmental Law

Congratulations! Click here to view the list in its entirety.

Dates to Remember

Calendar of notable events