Three-Point-Five Actionable Business Ideas during Covid Reintegration

by Bryan R. Fine, MD, MPH

As May showers arrive, the uninvited guest ‘Covid’ we’ve all grown to (insert expletive + feeling here) will turn 14 months old here in the United States. Finally, we’re seeing that maybe, just maybe, this vaccination ‘thing’ is going to work.

More than 100 million people reportedly are fully vaccinated (including me). There are pockets of social and corporate rebirth, on full display in many cities on downtown streets on a Friday night.

There are pockets, also, of spread, sickness and hospitalization(s). Vaccine hesitancy persists in many areas. Stories of death are still hitting streaming services on your phone—perhaps more or less emphasized depending on site(s) you follow.

So what’s a little ‘ol business to do to prepare for the Summer of 2021?

Here are some ideas.

Idea 1: Making Reintegration a “Thing”

As a business, the process of reintegration will include asking employees questions and having a sit-down, documented brainstorm with business leaders—specifically with an eye on the end goal.

But first, consider making the process a ‘thing.’

Tell employees the process is happening. Identify a person within your organization to lead this effort, maybe someone different than who has been the ‘face’ of your pandemic response the past year. Blow up a couple balloons.

Let people know that maybe, the return-to-normal is near.

Idea 2: Talk to Employees Some More

One of the many things the Covid pandemic has demonstrated is that every single person—and every single business—has a nuanced, different take on how to not only live their own lives amidst the pandemic but also how other people should live theirs.

This uniqueness is kind of like…snowflakes.

Solicit feedback. Open doors. Hear stories. Anonymously or otherwise. And do this specifically in context of reintegration efforts.

Idea 3: Consider Two Extremes from Different Perches

What would happen if you…went mostly-remote indefinitely?

Or, conversely, if you mandated that everyone return onsite tomorrow?

Answer each extreme from both a human and a strictly-corporate perspective:

  • How would employees react, based on your conversations with them? Would they consider the decision as fair? Unsafe?
  • How would your business be affected? Would it affect your vendor relationships? Would there a PR hit (or boon)?

The purpose of this exercise is not to have a eureka moment but rather to juxtapose what may be competing interests—EmployEE v. EmployER—and carve out exceptions.

Combining the thoughts of a diverse group of employees and / or business partners into a collective ‘they’—absurd at face value—is a force function to expanding the discussion.

Idea Point-5: Everything Else

There are many other issues that you’ll need to take into consideration, obviously, many of which are personal to your organization, be it an emphasis on vaccination rates or how third-party regulations may create unpredictable mandates.

But the first three ideas are generalizable to supplement whatever efforts and initiatives you currently have in-place and to prepare for the obstacles—known and unknown—that lay ahead.

Bryan R. Fine, MD is drawing on 20-plus years as a doctor, Covid testing more than 1,000 employees onsite and in the driveway of his family home the past six months, and his executive-level engagement with business leaders for many years, including specifically helping them acclimate as Covid hit in March 2020 and continually pivot as the pandemic persisted.

Posted by omgwpadministrator in Law

Virginia Enacts Overtime Wage Law

by Kristina Vaquera and Shaun Bennett, Attorneys with Jackson Lewis P.C.

Beginning July 1, 2021, Virginia employers will be subject to new state overtime pay requirements. Virginia Governor Ralph Northam signed into law the Virginia Overtime Wage Act on March 31, 2021. Previously, Virginia had been content to rely on the overtime pay requirements of the federal Fair Labor Standards Act (FLSA).

While they differ in certain respects, as with the FLSA the Virginia Overtime Wage Act obligates employers to pay one and one-half times an employee’s regular rate of pay for hours worked in excess of 40 in a workweek. Departures from the federal law include how the regular rate of pay is calculated, a longer statute of limitations to bring potential claims, and the possible damages available.

Rate Calculations

Under the FLSA, an employee’s regular rate of pay is the sum of all remuneration for employment (barring certain statutory exclusions) divided by total hours worked in a workweek.

The state law employs a different calculation that depends on whether the employee is paid on an hourly or a salary basis. For hourly employees, the regular rate of pay is the hourly rate plus any other non-overtime wages paid or allocated for the workweek—not counting the same items that would be excluded from the FLSA calculation—and then divided by the total number of hours worked in the workweek. For employees who are salaried or paid on some other regular basis, the regular rate of pay is one-fortieth (0.025) of all wages paid for the workweek.

Significantly, the new standard for salaried and other regularly paid employees appears to preclude employers from paying traditionally non-exempt employees a fixed salary to cover wages for hours in excess of 40 in a workweek (including on a fluctuating workweek basis), requiring instead an hourly rate calculation for overtime pay for even these employees in most circumstances.

Employers also may face greater liability for misclassifying employees as exempt under the new law. Under federal law, employers commonly argue that a misclassified employee’s salary already covers the employee’s straight-time wages for all hours worked and, therefore, only the additional “half-time” amount is owed for hours in excess of 40. The Virginia Overtime Wage Act eliminates this argument, providing instead that all salaried employees are entitled to one and one-half times their regular rate for any hours worked over 40. In addition to the overtime premium under the FLSA, Virginia employers will need to account for time-and-a-half pay under the new law.

Statute of Limitations

The new further law provides that an employee’s overtime claim may include workweeks in a total span of up to three years. It imposes a three-year statute of limitations on overtime claims, rather than the FLSA’s default two-year limitations period (three years for willful violations).

Liquidated Damages

While the FLSA provides for liquidated damages equal to the amount of unpaid overtime wages, an employer may defend against such a damages claim on the basis that it acted in good faith, with reasonable grounds for believing it acted in compliance with the FLSA’s requirements. This defense is unavailable under the new law, providing instead that all overtime wage violations are subject to double damages—plus pre-judgment interest at eight percent a year. In addition, the law provides for treble damages for “knowing” violations.

Collective Actions

Virginia law typically does not authorize class or collective actions. There are exceptions, but the Virginia Overtime Wage Act is not one of them. Amendments to existing sections of the Virginia Code accompanying the new law authorize collective actions “consistent with the collective action procedures of the Fair Labor Standards Act” for violations under the Act. Thus, Virginia employers face the possibility of defending overtime claims of multiple employees in a collective lawsuit covering workweeks up to a three-year period.

The Takeaway

The Virginia Overtime Wage Act creates the potential for significant liability to employers who fail to properly classify and compensate their employees. Employers are encouraged to review their overtime pay practices to ensure compliance with both the FLSA and the new Virginia law.

If you have any questions about the Virginia Overtime Wage Act or any other wage and hour issue, please consult a Jackson Lewis attorney.

Posted by omgwpadministrator in Law