Impact of the Civil Rights Act of 1991 on discrimination cases:
The Civil Rights Act of 1991 (CRA of 1991), which was enacted into law on November 21, 1991, contains a patchwork of provisions affecting the rights and remedies under Title VII of the Civil Rights Act of 1964 (Title VII), as well as Section 1981 of the Civil Rights Act of 1866, the Attorney's Fees Awards Act of 1976, the Age Discrimination in Employment Act of 1967, and the Americans With Disabilities Act of 1990. The Act addresses topics such as compensatory and punitive damages, jury trials, disparate impact cases, business necessity, expert witness fees, challenges to settlements, mixed motive cases, and interest and filing time in suits against the federal government. Of particular note, CRA of 1991 now allows for the recovery of compensatory and punitive damages in cases of intentional employment discrimination and for jury trials in cases seeking such damages.. Compensatory damages include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses. Compensatory damages do not include backpay, interest on backpay or any other type of relief authorized under Section 706(g) of Title VII, or past pecuniary losses [e.g., moving expenses, job search expenses, medical expenses, psychiatric expenses, and other out-of-pocket expenses]. Punitive damages may be recovered when the plaintiff can demonstrate that the employer acted "with malice or with reckless indifference" to the individual's federally protected rights. This is the same standard for an award of punitive damages under Section 1981 of the Civil Rights Act of 1866. Punitive damages are not available against a governmental entity. Caps on damages:
CRA of 1991 provides for a sliding scale of upper limits or caps on the combined amount of compensatory and punitive damages based on the number of employees employed by the employer. The limitations are: 15-100 employees : $ 50,000. 101 to 200 employees : $100,000. 201 to 500 employees : $200,000. 501 employees or more : $300,000.
In determining into which bracket an employer falls, the employer must have the applicable number of employees within the given range in each of 20 or more weeks in the current or preceding calendar year.
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Wage & Hour Laws:
The Fair Labor Standards Act (FLSA) is a federal law which establishes the requirements to pay employees the minimum wage, as well as overtime compensation for hours worked in excess of 40 per week.
What are hours worked?:
Originally, the FLSA did not include a definition of "working time." In 1944, the Supreme Court provided a definition: "Working hours include all time during which an employee is engaged in physical or mental exertion controlled or required by his employer and pursued necessarily and primarily from the benefit of the employer and his business."
Two years later, the Supreme Court ruled that any time an employee spent in a plant, after punching in, was compensable time. This included time spent to get to his job and get ready for it. However, time the employee spent waiting because he arrived early was not compensable. As a result of these rulings, employees claimed that they should be paid from the instant that they set foot on the employer's property until the time they left. Employees alleged as compensable time the following: Time spent walking from the plant gate to the machines. Time spent getting ready for work. Time spent shutting down. Time spent washing up. Time spent walking to the gate at the end of a shift.
Congress interceded by passing the Portal-to-Portal Act in 1947 because it believed that the judicial interpretations were "in disregard of long-established customs, practices, and contracts between employers and employees." The intent of the Portal-to-Portal Act was to do away with employee suits demanding pay for the odds and ends of non-productive time. The Portal-to-Portal Act accomplished the following: The Act looked to an employee's principal activity, thereby relieving employers from liability for paying for any time before and after the employee's principal activity unless there is a contract, custom, or practice requiring pay for these "preliminary and postliminary" activities. The Act specifically excluded "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform" from compensable time. As a result of the Portal to Portal Act, some activities are considered part of the principal activity and thus subject to payment and others are not. The Senate Judiciary Committee's report concerning the Act lists the following as examples of activities not being part of the principal activity under ordinary circumstances: Walking, riding or traveling to and from the actual place of performance of the "principal activity" within the employer's plant, mine, or other place of employment, irrespective of whether such traveling occurs on or off the employer's premises or before or after the employee has checked in or out. This includes, for example: Walking or riding from the plant gate to the workplace. Riding on buses from a town to an outlying mine. Riding on buses or trains from an assembly point to a particular site at which a logging operation is being conducted. A checking in or out and waiting in line to do so. Changing clothes Washing up, showering, or bathing. Waiting in line to receive paychecks
However, under certain circumstances these activities will be included as compensable time. For example, changing time must be counted as hours worked if the changing of clothes is indispensable to the performance of the employee's work or is required by law or by the rules of the employer. When an employer requires all employees to wear uniforms at work which are not allowed to be worn outside the workplace, and under company rules the employees must change clothes on the premises at the beginning and end of their work shifts, then the time spent changing into the uniform is part of the employee's workday. Even if employees are not specifically required to perform work, they may be entitled to compensation for such time spent at work. For example, employees who are permitted to work when not regularly scheduled have to be compensated for that time. For example, if an employee stays later than the scheduled end of his workday to finish a project, and the employer knows, or has reason to know, the employee is working, the time is compensable. Rest periods of short duration, between five and twenty minutes, are to be counted as hours worked. These would typically cover rest periods and include coffee breaks and time for snacks. This is in contrast to "bona fide" meal periods which are not worktime. In order for an amount of time to be considered a "bona fide" meal period, the employee must be completely relieved from duty for the purpose of eating regular meals. Ordinarily, thirty minutes or more meal time must be granted. However, under special conditions, a shorter period may be enough. On-call time may or may not be compensable, depending upon the degree of restriction imposed on the employee's time. Attendance at lectures, meetings, training programs and similar activities do not have to be counted as working time if the following four criteria are met: Attendance is outside of the employee's regular working hours. Attendance is in fact voluntary. The course, lecture, or meeting is not directly related to the employee's job. The employee does not perform any productive work during such attendance.
Lastly, travel time may be compensable depending on the kind of travel involved. No employer is liable for the failure to pay the minimum wage or overtime compensation for time spent in "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." Under normal circumstances, the time an employee spends traveling between his home and work is not compensable. However, if the employee is called to work in emergency situations, then the time spent traveling from home to work is compensable time. For example, if any employee who has gone home after completing his day's work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer's customers, all time spent on such travel is working time. Other types of travel may be considered part of working time. For example, an employee who is required to travel to a different city than where he normally works should be compensated for his travel time. Time spent traveling during the workday in the normal course of the employee's business is compensable. Further, if an employee is required to report to work and travel in the employer's vehicle, it will be compensable as is time spent when an employee travels from job site during the workday as a part of his principal activity.
Exempt vs. Non-exempt employees: The FLSA contains a number of statutory exemptions that render its standards inapplicable to particular groups or workers. Some exemptions completely suspend both minimum wage and overtime provisions from effect for that group of workers. Others only affect overtime provisions, and let stand minimum wage requirements. Still others provide overtime exemptions during limited parts of the year.
Major Exemptions from Minimum Wage and Overtime Requirements: White Collar Employee Exemptions for Executive, Administrative and Professional Workers, and Outside Salesmen. Executive, administrative and professional employees, and outside salesmen are exempt from the minimum wage and overtime pay provisions of the Fair Labor Standards Act. Executive Employees. To qualify for the executive employee exemption, an employee must be a "bona fide executive" within the meaning of either the "long" or "short" test set forth in the regulations. The short test requires that the employee receive the minimum compensation of at least $250.00 per week, and be compensated on a salary basis. Generally, executives must spend fifty percent or more of their time managing an enterprise or department, customarily and regularly directing the work of two or more employees, with the authority to hire and fire or suggest changes in status of employees, and to customarily and regularly exercise discretionary powers. Also, the executive exemption will be lost if the employee spends more than twenty percent of his weekly hours performing non-exempt work.
Administrative Employees. Employees working in administrative capacities may qualify for exemption from minimum wage and overtime laws if they are salaried, earning at least $250.00 per week, have primary duties of a non-manual (usually office-type) nature relating to management policies or general business operations, provide assistance to a proprietor or executive, work only under limited supervision as opposed to direct supervision, and customarily and regularly exercise discretion and independent judgment. Non-exempt work (i.e., manual-type labor) must constitute less than twenty percent of the employee's weekly hours for the administrative exemption to apply.
Professional Employees. Professional employees are those who for fifty percent or more of their time are required to perform work requiring scientific or specialized study. Additionally, the professional exemption may apply for employees who perform original and creative work in a recognized artistic endeavor, or who teach, tutor, instruct or lecture in an activity generally viewed as educational. The duties performed by the employee who seeks to qualify for the professional exemption must be predominantly intellectual and varied in nature requiring consistent exercise of discretion and judgment. Non-exempt work must be less than twenty percent of the professional employee's weekly hours, and the professional employee must be earning a salary of at least $250.00 per week.
Generally an employee will be considered paid on a salary basis if he or she regularly receives each pay period (weekly or less frequently) a predetermined amount which will not vary based upon quantity or quality of work performed. However, withholding salary during weeks in which no work is performed will not disqualify an employee from receiving this exemption. Further, deductions may be made from the employee's salary for absences of a day or more for personal reasons other than sickness or accident.
Outside Salespersons. An outside salesperson is defined by the regulations as any employee: (1) who is employed for the purpose of and who is customarily and regularly away from his employer's place of business engaged in: (a) making sales within the meaning of the Act or (b) obtaining orders or contracts or services or the use of facilities for which a consideration will be paid by the client or customer; and (2) whose hours of work of the nature other than that described above "do not exceed twenty percent of the hours worked in the workweek by non-exempt employees of the employer." There is no minimum salary requirement to meet this exemption, provided an employee is a bona fide salesperson within the meaning of the wage and hour administrator's regulations.
Remember, for the exemption to apply, the salesperson must regularly and customarily perform the work "away from the employer's place of business." This has been interpreted to mean that the salesperson must spend at least eighty percent of his or her selling time away from the employer's place of business. "Salespersons" who generally just make deliveries, as opposed to generating their own sales, will not be considered exempt. Nor will employees whose job it is to promote company sales rather than make their own be considered exempt.
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