Archive for October, 2012

IRS Gives Storm-Affected Businesses Until Nov. 7 to Make Required Filings

Businesses in areas affected by Hurricane Sandy can have until Nov. 7 to file returns and accompanying payments normally due on Oct. 31, the IRS announced today.

In its announcement, IRS said that the relief applies to taxpayers and tax preparers in an area affected by Hurricane Sandy or otherwise impacted by the storm that hit the Mid-Atlantic and Northeastern United States this week.

This relief primarily applies to businesses whose payroll and excise tax returns and payments are normally due today, IRS said. No action is required by the taxpayer; this relief is automatic. Regular federal tax deposits are due according to current rules. However, the IRS notes that if taxpayers or tax practitioners receive a penalty notice for this period, they can contact the IRS at the number on the notice to request penalty abatement due to reasonable cause on account of the storm.

IRS expects to grant additional filing and payment relief as qualifying disaster declarations are issued by the Federal Emergency Management Agency (FEMA). Details will be posted on the Tax Relief in Disaster Situations page on IRS.gov.

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DOL Files Subpoena Enforcement Action Against Forever 21

The U.S. Deparment of Labor announced last week that it has gone to court to enforce a subpoena seeking employment records from clothier Forever 21. DOL said it is investigating whether the Los Angeles-based retailer’s vendors and subcontractors are violating the Fair Labor Standards Act’s minimum wage, overtime, and recordkeeping requirements.

Fighting a subpoena is an uphill battle, as the law gives enforcement agencies like DOL broad authority to require production of relevant evidence in an investigation.

According to a story in the Los Angeles Times, Forever 21  offered to meet with the agency and “promptly responded” to the subpoena with information that resolved the investigation.

Since the store is a big target in the DOL’s investigation of the West Coast garment industry, fighing this subpoena is a risky step that could be costly for the comnpany in legal fees and possibly alienating its customer base.

We’ll see just how far the company wants to take this contest.

 

No Overtime Pay for Mortgage Bankers, 6th Circuit Rules

Employees seeking overtime pay under the Fair Labor Standards Act continue to run up against the various exemptions to the law. One of these exemptions is for employees who make not less than $455 a week, who primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and who exercise discretion and independent judgment on significant matters.

Applying this exemption, the 4th U.S. Circuit Court of Appeals on Oct. 25 ruled that mortgage bankers working for Quicken Loans were not entitled to overtime pay.

To satisfy the management-related prong, the employee’s “primary duty” must involve “work directly related to the management or general business operations” of the company or its customers.  According to the U.S. Department of Labor:

“Employees in the financial services industry generally meet the duties requirements for the administrative exemption if their duties include work such as collecting and analyzing information regarding the customer’s income, assets, investments or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing, or promoting the employer’s financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exemption.”

The evidence supported the jury’s finding that the first sentence of this statement more aptly described the mortgage bankers’ “primary duty” than the second, the appeals court said.

As to the discretion-and-independent-judgment prong,  Quicken had to show that the mortgage bankers’ “primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.”

The appeals court summarized thusly: “The jury concluded—after listening to forty witnesses and five weeks of testimony—that the mortgage bankers’ interactions with customers fit this description. That is a reasonable finding of fact, leaving us no basis for disturbing it.”

Read the entire opinion here.

EEOC Recovers $95K For Arab Employee Taunted, Fired After 9/11

Justice can take a while, and for an employee of Egypitian origin who was discriminated against and harassed after the 9/11 attacks, thinks were set right when the Equal Employment Opportunity Commission announced a settlement of a national origin claim against his former employer, Sierra Pacific Industries.

The EEOC annnounced on Tuesday that it has secured $95,000 for Ahmed Eishenawy, who complained that after 9/11 his co-workers at the company’s Red Bluff, Calif. plant called him “Osama,” “f—ing Arabian,” and “camel jockey.”

Elshenawy complained and was thereafter subjected to complaints by co-workers. Further, the EEOC said, the company retaliated against Eshanaway by subjecting him to harsher discipline, ultimately terminating him in 2004.

Besides the monetary settlement, the two-year  consent decree provides that Sierra Pacific Industries will conduct yearly training of employees, report the details of any future complaints of national origin discrimination or retaliation, revise its anti-discrimination policies and post information regarding the decree for current employees.

Sierra Pacific Industries owns and harvests forests in California and Washington.

4th Cir.: No Overtime Pay Required for Executive Assistant

An executive’s assistant was exempt from overtime pay under the Fair Labor Standards Act and Maryland wage and hour law because her job required significant exercise of discretion and independent judgment, the U.S. Court of Appeals for the Fourth Circuit ruled recently.

The assistant reported to the CEO of Federal Realty Investment Trust  (FRIT), in Maryland, holding the job from the fall of 2003 through the spring of 2010. She maintained that she spent more than 50 percent of her time doing such tasks as coordinating the CEO’s travel arrangements, monitoring his e-mail and calls while he was away from the office, and helping him in his work with several professional organizations.

The assistant asserted that (1) she routinely worked more than 40 hours a week at FRIT, (2) she spent 70 to 80 percent of her time performing personal work for the CEO and his family, and (3) she should be classified as nonexempt and paid overtime

Section (7)(a)(1) of the FLSA requires that employers pay their employees time and a half for work over forty hours a week.  However, the FLSA provides an exemption from this overtime requirement for persons “employed in a bona fide executive, administrative, or professional capacity.”

The appeals court said that the assistance didn’t meet the exemption test since her “primary duty” included the exercise of discretion and independent judgment with respect to matters of significance. That, rather than the percentage of her time spent on various tasks, meant she was clearly exempt from overtime pay.

The case is Altemus v. FRIT,  No. 11-2213 (2012).

The decision was unpublished, meaning you’re not supposed to cite it as precedent. But it’s still a window into the court’s thinking, and could influence another decision down the line.

PetSmart Not Liable in Same-Sex Harassment Case, Court Holds

If you want an example of the right way to handle a sexual harassment complaint, then take a look at this week’s decision by a federal district court in Kentucky exonerating PetSmart.

The court held that the pet food and supplies chain responded appropriately to a complaint by a dog trainer that a male co-worker had harassed him.  Granting summary judgment to the company, the court said it took reasonable steps to prevent harassment and promptly investigated the alleged victim’s complaint.

The judge found that the company had in place a strict anti-harassment policy that provided employees with “multiple, alternative avenues” to complain about purported harassment, including an anonymous toll-free hotline.

When the alleged victim finally used the hotline to report the purported offensive conduct, company officials conducted an immediate investigation and fired the alleged harasser three weeks later, the court said.

These actions were enough to negate liability under Title VII of the 1964 Civil Rights Act in this case of alleged co-worker harassment, the court concluded. And they would have negated liability even if the harasser was the alleged victim’s supervisor, the court said.

The case is Harris v. PetSmart Inc., E.D. Ky., No. 11-00094, 10/23/12.

Report: Congress, Other Legislative Branches Named in 196 Complaints in 2011

It turns out that congressmen and senators and other legislative branch offices are no strangers to complaints of employment discrimination.

The legislative branch, including members of Congress, was named in 196 complaints filed in fiscal year 2011, compared to 168 in fiscal year 2010, according to a report issued this week by the Office of Accountability, which enforces discrimination laws against these offices.

More than half (101) complaints alleged discrimination or harassment based on race or color, the report said. “Sex/gender/pregnancy,” which does not include sexual orientation, was the next highest category, followed by disability.

The U.S. Capitol Police faced 63 complaints, the most of any entity.

Under the Congressional Accountability Act, employment discrimination laws apply not only to Houes and Senate members, but also the Congressional Budget Office, the Government Accountability Office, and the Library of Congress.

Here’s a copy of the report, which also details safety and health accessability in these legislative branch agencies.