ASKED & ANSWERED: Robert A. Boonin on Labor Law

By Jo Mathis Legal News Attorney Robert A. Boonin, who is based in the Ann Arbor office of Butzel Long, concentrates his practice in the areas of labor, employment and education law. He is also a frequent speaker on labor and employment matters and is the current chair of the Wage and Hour Defense Institute. Boonin talked to the Legal News about his work in this complicated area of the law. Mathis: You'll be speaking for the sixth consecutive year at the Society for Human Resource Management's annual conference this summer, where you'll discuss the Department of Labor's latest enforcement trends and initiatives on enforcing the federal law regulating overtime pay. Can you give us a bottom-line summation of those trends? Boonin: The Department of Labor is becoming more and more aggressive in its enforcement initiatives and investigations, and lawsuits seeking overtime are more common. The frequency of such claims is higher than any other area of employment law. There are no areas of employment immune from these claims. They range from tipped employees, to manufacturing employees, to highly paid sales representatives and professionals. The law is complex and unintentional violations often occur despite an employer's best efforts to comply with the law. The consequences of violations could be quite high, that is very expensive, so it is essential that employers closely evaluate their payroll practices as to how they track time and who they treat as exempt from being paid overtime. Mathis: Do you typically represent the employer or employee? Which side is more apt to be on the right side of the law? Boonin: Our practice in this area is exclusively focused on representing employers. The right side of the law is to comply with it, so there's no good or bad side. Our objective is help employers comply with the law and stay in compliance as they develop policies and practices geared to competitively compensate and incentivize employees. In fact, employees often seek certain pay perks or practices that make sense conceptually, but if accepted by the employer would be contrary to the law. By counseling and educating clients, we hope to help them avoid errors from occurring. To the extent that errors are made -- and they're almost always unintentional -- our goal is to best position the case so that liability can be limited. Mathis: In this tough job market, have you seen cases of employers exploiting their obvious advantage? Boonin: I've not seen this personally. My experience is that compliance problems arise from either misunderstandings of the law or miscommunications with employees. Most cases do not stem from a desire to exploit employees or violate the law. In fact, in my experience, few employers intend to violate the law. In Michigan, for example, the findings of willful violations of the law is relative rare. The exploitation that you're referring to, to the extent that it is exists, is more common in other parts of the nation and is usually limited to certain lower paying industries or job types. Also, I doubt that the job market drives employers in those areas to test the limits as much as does the general economy and challenges to be competitive. As a consequence, some employers misclassify employees as contractors, or as exempt from being paid overtime when the workers should be classified as non-exempt and eligible for overtime pay. Even determining if a worker is a contractor or exempt is difficult to make without counsel, particularly since in some industries the practices for compensating employees for so long as the jobs have existed may have never been consistent with the overtime pay law. Mathis: What are some of the most common errors employers make as far as the law goes? Boonin: Misclassifying employees, as I just mentioned, is a common problem. Perhaps the biggest current trend, though, involves how time is treated. It's amazingly complicated to determine if certain pre-shift or post-shift activities, including clothes changing, is compensable or non-compensable time. The same holds true if employees work during their breaks or meal periods. Another problem that often arises is that employers do not properly roll into the employees' hourly rates certain types of extra pay provided while calculating the overtime premium due. Mathis: How can employers keep up with the changing laws? Boonin: The laws in this area do not change that often. The interpretations by the courts and the Department of Labor do evolve, though. My advice is "don't assume that everything is being done right." Rather, "audit your practices and involve counsel in the process." Mathis: How common are overtime disputes? Boonin: Overtime litigation is the lawsuit du jour. In recent years, more cases have been filed in this area than with respect to all employment discrimination claims combined. Many of the cases are collective actions and class actions, which are extremely expensive in terms of potential liability and attorney fees. While this tidal wave predominantly hitting other parts of the country at this time, such as Florida, California and New York, at some point, it will likely hit Michigan some time soon. I've seen an up-tick already. Mathis: What are the most pressing topics of concern to the Wage and Hour Defense Institute of the Litigation Counsel of America, which you chair? Boonin: Much of what we do is simply focus on specific litigation and substantive law issues and identify trends, and then we analyze them, debate them, and discuss means for addressing them. We also provide employers, with a focus on senior human resource leaders and in-house counsel, with information about these trends and the means for reducing their exposure to liability. Mathis: Do you think the minimum wage should be increased? Boonin: Michigan's minimum wage is already higher than the federal minimum wage, as is the case in about 17 states. I've not analyzed this issue in awhile, but as businesses are struggling to overcome the economic slump they've been facing, I think an increase would drive up other wages. If this occurs, then it's quite possible that fewer jobs will be available. I just don't believe that we should risk that outcome at this time. I prefer to let the market determine how much employees should be paid. Mathis: You've represented both private and public sector clients across the country. Are their issues much the same? Boonin: In many respects, they are the same. There are some nuances in the law which are unique to the public sector. These areas are in such areas as compensatory time, which really does not exist in the private sector, shift designs for public safety workers, and how volunteers and interns are treated. Mathis: How do you expect Obamacare will affect your workload, if at all? Boonin: Since I defer to my colleagues who devote their practices to employee benefit issues, it will not have much direct impact on my practice -- though it will impact them significantly. The impact on me will be identifying when the new law is triggered in a given situation and than getting the employers access to colleagues who can help provide them with the best solutions. My practice also will be impacted by it being a significant issue at the bargaining tables for the upcoming rounds of new contracts we're negotiating with the unions representing employees of our clients. How employers structure their health care options will be an item of great interest to all parties at the table. Published: Wed, Apr 4, 2012

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