Arkansas News & Analysis

  • WHD's new test for interns: Learning without earning made easier

    The Fair Labor Standards Act (FLSA) requires "for-profit" employers to pay employees for their work. However, interns and students may not be considered "employees" under the FLSA, meaning they don't have to be compensated for their on-the-job activities. Previously, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) laid out a restrictive test for who qualified as unpaid interns and students, but the federal courts consistently rejected the WHD's position. In a concession to that new reality, the WHD recently published a new Field Assistance Bulletin that adopts the standard set out by the federal courts.

  • Sometimes there's a silver lining to having a union

    In recent years, we've seen an explosion in wage and hour cases filed under the Fair Labor Standards Act (FLSA), particularly class actions involving large numbers of employees seeking unpaid wages and overtime for short periods of unpaid work activity. One example has been "donning and doffing" cases, which are related to the time employees spend putting on and removing necessary clothing or protective gear before they clock in and after they clock out. A recent case from the U.S. Court of Appeals for the 8th Circuit (whose rulings apply to Arkansas employers) places some limitations on donning and doffing claims ― at least for workplaces governed by union contracts.

  • Surprise, surprise! Obeying the law can be a business necessity

    Ten African Americans and Latinos sued Wells Fargo Bank, N.A., on behalf of a putative class, alleging its use of criminal records to terminate or refuse to hire individuals convicted of a criminal offense involving dishonesty or a breach of trust had an adverse impact on minorities in violation of Title VII of the Civil Rights Act of 1964 and state law. The district court ruled in favor of Wells Fargo and dismissed the claims without a trial. The employees appealed that decision to the 8th Circuit.

  • Don't forget to properly classify independent contractors

    You likely recall a time not so long ago when the improper classification of employees as independent contractors was the hot topic for the IRS and the U.S. Department of Labor (DOL). In 2011, the agencies entered into a "Memorandum of Understanding" in which they agreed to share information about potential misclassifications in an effort to crack down on the common practice. The DOL also entered into similar agreements with roughly 30 state departments of labor.

  • We didn't document past performance counseling—what now?

    Q One of our employees has been failing to meet our standards for the past three months. We have spoken with him about his performance several times, but the discussions weren't documented. Is it too late to document his past performance deficiencies before we proceed with termination?

  • What is the reach of a cat's paw?

    Those of you who are interested in how idioms and sayings came to be adopted will appreciate the genesis of the term "cat's paw," which refers to someone who is manipulated by another to take action for the manipulator's purposes. According to Wikipedia, the term comes from a medieval fable first recorded in 1679 as "The Monkey and the Cat" in the second collection of Jean de La Fontaine's Fables. In that fable, a monkey and a cat are sitting before a hearth in which chestnuts are roasting. The monkey wants the chestnuts but fears he will burn his hands if he tries to grab them and pull them from the fire. He prevails upon the cat, presumably because of the cat's notoriously quick reflexes, to flick them from the fire with the promise that he will share the bounty. Of course, as these things always go, the monkey eats the chestnuts as fast as the cat retrieves them, and there is ultimately nothing left for the cat despite his doing all the work. A recent decision from the U.S. 8th Circuit Court of Appeals (whose rulings apply to all Arkansas employers) demonstrate

  • Giving the boot to kickboxer violated USERRA

    As a recent appellate decision demonstrates, the scope of protection afforded to servicemembers and veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is broad. Employers should err on the side of caution when dealing with employees returning from any military service, no matter how limited or how brief their tour of duty or training.

  • Employee claiming retaliation must have reasonable basis for discrimination complaint

    The following case addresses two important questions:

    1. Must there be some reasonable basis for a complaint of discrimination before an employee is protected from retaliation?
    2. What is the extent of an employer's legal exposure if it loses potential evidence?
  • New technologies create new employee privacy issues

    Unless you work for a company that's very small or very low-tech by nature, chances are, one of your biggest challenges is keeping up with technology. If your competitors are taking advantage of the many new technological advances that promote efficiency and productivity while you're stuck in 1999, your business will struggle to compete.

  • The end of the Kennedy era

    For the past 20 years, Anthony Kennedy has decided the most important issues in America. An early protégé of Justice Antonin Scalia, Kennedy was appointed by Ronald Reagan as a conservative choice for the U.S. Supreme Court. At first, he voted with the conservative bloc more than 90 percent of the time and remained solidly conservative on criminal justice issues throughout his judicial tenure.