Carl Kanowsky, Esq.
With all of the press and publicity over sensational cases like Rep. Anthony Weiner (unfortunate last name, that) and Wal-Mart, you’d think employers across the United States would have learned from the boneheaded mistakes of their predecessors.
To be honest, there has been some progress. You don’t see want ads like these anymore: “Sales agency looking for energetic, young men” or “Busy executive seeks attractive ‘Girl Friday.’” (I’ll bet he does.)
But let me tell you about some of the cases that have come in my door, to demonstrate that the plaintiff’s employment bar is in no danger of going away.
First case. Weiner is not alone.
In one case, the president of a company, vigorously seeking publicity and associating with some famous people, actually texted a young, attractive female employee demanding she go out with him.
When this didn’t work, he explained how just having her near him was resulting in the need for cold showers.
Finally, obviously frustrated but believing that he had something to offer the young lady, he texted a photo of himself.
He’s in no danger of being snatched away by Chippendale’s. But what was he thinking – that young women crave unsolicited pictures of naked men?
Here’s a disheartening reality for him. Cell phone companies keep records of text messages for up to five years.
Staying on the sex theme, the next case is another example where people don’t comprehend that when you send an email, it becomes a permanent record.
The employer, a divorced male, has a number of women under 30 working for him. He overhears them talking about their love lives. He’s brought into the conversation (first mistake).
One of the women says she’s heard the man has a collection of raunchy jokes, and she’d like to see them. So, what does this mental giant do? Does he say to her: “Sorry for intruding into your personal life. Let’s keep that separate from your work life?”
No, of course not. Instead, he sends her emails with transcripts of jokes. Then, to add to the enjoyment, he attaches some extra-special pictures.
Result? Lawsuit. Whether he wins or loses, if he had not sent the emails to begin with, there would be nothing to litigate. Instead, his young female employee handed him some rope, and he fashioned it into a noose and put it around his neck.
Guys, when will you remember Harry Belafonte’s advice: “Man smart, Woman smarter?”
Another employer has a number of clerical employees. There’s no way you could classify them as exempt from overtime. They are not professionals, executives or administrators.
But he doesn’t want to be bothered with keeping track of their hours or worrying about paying overtime. His solution was to pay them a salary.
In all fairness, he was trying to do the right thing. He took their hourly rate (of, say, $10 per hour), multiplied by 48, and paid that ($480) as the salary, believing he should get credit for any future overtime hours.
“If they’re salaried, then I don’t have to worry about overtime, right?” Wrong. Paying someone a salary does not exempt them from overtime.
Compounding the problem, the employer thought if he had to pay overtime, it would be at the rate of 1.5 times the hourly rate he used to calculate a new weekly salary.
Again, wrong. “For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt, full-time salaried employee, the employee’s regular hourly rate shall be one-40th of the employee’s weekly salary.”
That’s from Labor Code section 515. So, the overtime rate was actually $18 per hour.
Here how it works. Take the $480 paid, divide by 40 and you get $12. Multiply that by 1.5 and you get $18.
When a disgruntled employee left, the employer not only had to pay overtime, but also had to pay it at a much higher rate than he expected.
There are numerous other examples of employers (whom I often represent) not learning from the mistakes of others.
If you have any employees, you need to do a thorough examination of how you’re operating. And you will need to hire some expert help.
Yes, it’s an extra expense, but treating the problem now is a lot cheaper than solving it after a lawsuit has been filed.
Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Nothing contained herein shall be or is intended to be construed as providing legal advice.
Common Mistakes Employers Make | Commentary by Carl Kanowsky Esq.
