The Fair Labor Standards Act (FLSA) apparently reaches into the world of kibble, sit, and stay.  A Tennessee federal court has found that a former K-9 officer is entitled to be paid and receive overtime for the hours spent caring for and training JJ, a canine narcotics officer.   JJ lived with the officer.  The court found that the off duty work was primarily for the county’s benefit and was integral to the employee’s job as a K-9 officer.  (Lewallen v. Scott County, E.D. Tennessee)

In the “old days,” before the great recession, most companies didn’t think much about their unemployment insurance (UI) costs.   Times were good for many companies, layoffs were few, and there may have not been many terminations of problem employees.  But the good old days are gone, and even organizations that experienced few involuntary terminations in the past are dealing with the issue.  Additionally, the high unemployment rate has drained many state unemployment trust funds.   To replenish those funds employers will be charged ever increasing unemployment rates.  Companies that have had more unemployment claims against them pay more.

Employers have the burden of showing that an involuntarily terminated employee did something bad enough not to qualify for unemployment benefits.  Further, good documentation will be required to make that case.  So how do you control these costs?   As with many things, good solid HR practices can minimize costs and control risks.

They include:

• Sound hiring.  For a lot of reasons, including saving on UI, employers should be patient and thorough in the hiring process.  Don’t settle.  Bad hires invariably come back to haunt you.
• Implement a sound performance appraisal system.  Again, there are many good reasons for this, but one clearly is to be able to justify corrective action and to inform employees of problems.   An employee who claims that he “didn’t know” there was a problem is often a winner in a UI case.
• Be proactive.  Problem employees don’t generally become problems overnight.  Address issues early.   Many concerns can be fixed.  If not, document well.
• Maintain good employment records, leave requests, employment actions, etc.
• Conduct exit interviews.  Consider conducting “stay interviews” among your current employees.
• Train managers regarding the issues.
• Finally, if an ex-employee files an unemployment claim, provide detailed, thorough, and timely documentation to the state.  Appeal claims as appropriate and provides good, knowledgeable  witnesses.

Generally, discrimination claims must be filed by an employee within 300 days.  You’ll remember that the Lily Ledbetter Fair Pay Act, passed in 2009, changed that, at least to some extent.  It permits employees to file pay discrimination claims beyond the otherwise applicable 300 day limit under some circumstances.   Under the Act, each time an employee is hurt by a discriminatory compensation decision (e.g., receives a paycheck), a discriminatory act occurs and the time limit resets.   After the law was passed employers were left wondering how it would be interpreted.  Would it extend beyond pay discrimination cases?

A 3^rd Circuit Court of Appeals case has provided us a bit more insight.  In Noel v. Boeing, the court found that a black Haitian employee’s claim regarding discriminatory promotions was too late.  He could not claim that the time period for filing his action reset each time he received a lower paycheck because he had not been promoted three years earlier (when other white employees had been).  The court noted that the Fair Pay Act applies only to cases that involve “discrimination in compensation” and is applicable only to pay disparity claims (employees paid differently for the same work), not “failure to promote” actions.   The 3^rd Circuit (includes New Jersey, Delaware and Pennsylvania) joins the D.C. Circuit in its interpretation of the law.  While the decision does not apply to other states, it does provide somewhat of an indication of how other courts may rule and that’s good news for employers.