Imagine a scenario where an employer hires two individuals – a male and female – to fill two identical jobs (i.e., same job qualifications and same job duties). Both individuals satisfy the educational, skill, and other technical requirements for the job and they have similar employment histories. However, at their prior places of employment, one individual earned $50,000 at his/her prior place of employment, while the other earned $60,000. The employer agrees to hire both individuals at 10% more than their prior salaries. Thus, the starting pay for one hire is $55,000 while the starting pay for the other is $66,000, leading to a pay differential of $11,000 (20%) during the first year of employment. The two individuals eventually learn about the difference in pay and the lower-paid employee questions whether the starting pay differential is legally permissible.
In many states, the practice of paying nonexempt employees a “day rate,” “shift rate” or “job rate,” is gaining in popularity. A day rate occurs when a set amount of pay is guaranteed for a shift without regard to the hours worked. The appeal is obvious. For the employee, a guaranteed day rate means the employee is paid for a full shift even if he or she completes work early. For the employer, overtime is less likely, as employees are incentivized to complete work early. For both employers and employees, a day rate offers accounting predictability. However, employers must be careful when implementing these types of shifts, as there are several potential pitfalls.
Employers are generally well aware that they must comply with the main pillars of the Fair Labor Standards Act (FLSA), requiring that (1) employees be paid at least minimum wage and (2) employees be paid at a rate of one-and-a-half times their hourly wage for all hours worked in excess of 40 in a week. However, if some members of Congress have their way, this longstanding doctrine may be upended.
Employers victimized by trade secret misappropriation appropriately express righteous outrage, both at the offending ex-employee and sometimes at the new employer. However, on another day the roles can reverse: That same employer may unwittingly — or worse, intentionally — have hired someone who has stolen trade secrets or confidential information. Failure to take appropriate precautions or implement sufficient remedial measures can expose the hiring employer to a variety of civil, and even potentially criminal, claims. Burying your head in the sand is not a winning strategy, especially given how easy technology has made it to copy and take confidential information.
Rudyard Kipling famously noted, “East is East, and West is West, and never the twain shall meet.” Many employers may feel that this quote aptly describes the relationship between immigration law and wage & hour law — certainly, it is not often that these two areas are discussed in the same article, let alone the same sentence. However, a recent U.S. Citizenship & Immigration Services (USCIS) policy memorandum illustrates a circumstance in which the government will take wage & hour considerations into account when addressing a visa petition.