Fridays with Frank – Jan 31, 2020

Standard

Happy Friday!

Goodbye January! You always begin with so much promise. A month associated with valiant efforts (resolutions); excuses (“mom would be crushed if I didn’t have a big piece of her birthday cake), disappointments (“we need a new scale, this one says I gained five lbs. since last week!); and frustrations (“$3 a day for an annual gym membership only makes sense if you actually go to the gym more than three F@#*&%G days a month!) But, tomorrow starts a new month, a fresh start! We can do this!! 


“The most important step is…wow, I really like that cellphone case!”  If you’re among the four percent of adults in the U.S. that have attention deficit hyperactivity disorder (“ADHD”), this may sound very familiar. I know, because I’m not only the president of Hair Club for Men… Dang! Sorry. I don’t mean to brag, but I have ADHD. (I’m not sure, but I think it may occasionally come out in my writing.) I haven’t always embraced it, but being diagnosed several years ago explained a lot!   

ADHD impacts every aspect of my life, and, when used strategically, is an excellent excuse for not doing stuff at home. (Becky: “Weren’t you going to mow the lawn today?” Me: “Sorry, I got distracted. Darn you, ADHD! I’m out of town all week so let’s pay the neighbor’s daughter to do it.”) ADHD also made me a mediocre student and employee—my sincerest apologies to all my teachers and previous employers. I tried countless times to put on my grown-up pants and make it work. But, it never did. 

Life can be challenging for people with a  neurodevelopmental psychological disorder characterized by problems with focus, impulsivity, and activity levels. While the more extreme consequences of ADHD can include social exclusion, drug use, and even crime and imprisonment, people with ADHD often share the path I was on: academic under-performance, repeated job loss, and depression. 

The fascinating thing is that many of the “negative” behaviors that made me a mediocre student and employee mirror “positive” behaviors commonly associated with successful entrepreneurs. Seriously! There are real scientific studies that say so! 

I remember the exact day everything changed for me (but that’s a story for another Friday). With only the most important things in life left to lose—my marriage, my children, and life as I knew it—I started my own business. I couldn’t explain why, I just knew it was the right thing to do, so I did it. Now, I understand some of the reasons were ADHD-related:

  • Impulsivity. For an ADHD entrepreneur, this can manifest as rapid decision making in situations that are important and can have a far-reaching (positive or negative) impact. Check.
  • Impatience and Boredom. ADHD entrepreneurs are often easily bored, have difficulties waiting—especially to begin something new, are intolerant of delays (notably when they are due to the whims of others), and prefer small instant rewards to larger long-term rewards. Check. 
  • Novelty. ADHD entrepreneurs have a tendency to enjoy and pursue activities that are exciting, and they are open to new experiences, even when risk is involved. They tend to put more weight on upside potential than the downside risk. And, check!

There was one last—and by far the most important—factor in breaking free of the excruciating ADHD weight I carried from childhood to college, and on to my adult life, which allowed me to start my own business almost 20 years ago. My spouse, Becky. She never seldom sometimes regularly thought I should give up, always often occasionally rarely thought I would be successful, and she has unconditionally loved and supported me in every way possible for more than 30 years.   

  That’s a wrap on another Fridays with Frank. Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Jan 24, 2020

Standard

Happy Friday!

Can you believe it’s already the end of another workweek? Once again, time went speeding by me like a new Corvette on the Autobahn (check out last week’s post). So, before we get too far into 2020, I want to discuss one of my favorite compliance topics. Wait! Don’t go; it’s not about I-9 forms this time! This week’s post is about exemptions from minimum wage and overtime. If you recall, I briefly discussed the new minimum salary requirements for exempt employees in the January 11, Fridays with Frank. So, let’s dive into some details!  


To be (exempt), or not to be (exempt), that is the question! For some, trying to sort out and understand the Fair Labor Standards Act (“FLSA”) “white collar” exemptions is worse than writing a 15-page book report on Macbeth! (My apologies to Shakespeare and Mrs. Maio, my 10th grade English teacher and sister.) Yes, the federal rules are both complex and vague, and some states have different but equally complex and vague rules. But, on the bright side, there are very strange people like me who love this stuff and are here to help!

First, “exempt” means the law’s minimum wage and/or overtime requirements do not apply. Conversely, “nonexempt” means the law’s minimum wage and overtime requirements do apply. Lesson one complete! 

Federal vs. state-specific compliance. From the federal perspective, Section 13(a) of the FLSA provides exemptions from both minimum wage and overtime pay for employees correctly classified as executive, administrative, creative or learned professional, outside sales, and highly-compensated employees. To qualify for an exemption, employees must meet tests regarding their job duties and be paid at least $684.00 per week on a salary basis. It’s important to note that the employee’s actual job duties—not their title—are used to determine whether an exempt classification is applicable. 

In states with their own overtime exemption laws—yes, I’m looking at you CA, ME, and NY—employers must comply with the law that provides the most benefit to the employee. That’s why, for example, employers must pay the higher state-specific minimum salary amounts I discussed in a previous post. But that’s not all! 

ME: The Pine Tree State follows the underlying construct of the FLSA’s three-prong test for the executive, administrative, and professional exemptions. 1. The employee must be paid on a salary basis—paid a predetermined amount of compensation each pay period. 2. The employee’s salary must meet or exceed the higher of the state or federal minimum salary threshold. 3. The employee’s job duties must meet the FLSA’s criteria for either the executive, administrative, or professional exemption.   

However, the state does break from the FLSA in two important ways. First, the ME statute covers businesses operating in the state with one or more employees. (The FLSA has thresholds to determine if an employer is covered.) Secondly, unlike the FLSA, which identifies several exemptions (computer professionals, movie theater employees, certain wreath makers, maple sap processors, seamen on a foreign vessel, etc.), ME law identifies just three exemptions—executive, administrative, and professional. Further, the state’s DOL explains that, while ME law is silent on some FLSA exemptions, others are expressly prohibited. Employers unaware of this fact could be misclassifying employees under state labor law. 

NY: Not to be outdone, NY has its own complex web of wage and hour rules and restrictions. In the Empire State, overtime requirements apply to all individuals who fall within its definition of “employee.” State labor law defines an “employee” as “any individual employed or permitted to work by an employer in any occupation,” excluding only those specifically identified as exempt. That list includes exemptions for executive, administrative, and creative/learned professionals (as well as outside salespeople; federal, state, and municipal employees; taxi drivers, camp counselors, and part-time babysitters, but no wreath makers or maple sap processors).

To further complicate matters, NY employers should be aware that the duties tests for the state’s executive and administrative exemptions are slightly different from those under the FLSA. This could result in some employees being exempt under federal law, but failing the duties test under state law. In that case, the individuals must be classified as nonexempt hourly employees and paid overtime for all time worked over 40 hours in a workweek. Another strange point is that the creative/learned professional exemption does not have a salary basis or minimum salary test, only a duties test.     

Confused? Overwhelmed? Want a cocktail? (Sorry, that last question was for my wife.) You’re not alone. Wage and hour laws are complex and are only going to get more complicated from here. What’s worse, employers aren’t allowed to make mistakes and face the payment of back wages and overtime, as well as astronomical fines, penalties, and legal fees when they do. (Caution, shameless self-promotion ahead!) That’s how I came up with our firm’s tagline: When you only have once chance to get it right, you need HR Compliance Experts. But, all joking and shameless self-promotion aside, if your head is spinning from all this, we’re here to help. 

That’s a wrap on another Fridays with Frank. Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Jan 17, 2020

Standard

Happy Friday!

Another busy and exciting week is behind us! I remember when I was a teenager—or at least I think I do, that’s going back a few decades—days, weeks, and months seemed to drag on forever. If you were like me, you wished you were 16, so you could drive; then wished you were 18, so you’d be done with high school and on to college; then wished you were 21, so you could get into a bar (legally). My father used to say, “wish in one hand, and…” well, ummm, maybe I better not repeat that one. Anyway, my point is that the days, weeks, and months that dragged on forever when I was young are going by at warp speed today! Why? Because I’m “older,” 56 to be exact.

Like any stage in life, there’s good, bad, and sometimes some ugly that goes along with it. (Warning, the following may be offensive and may not be appropriate for “younger” readers.) When I was in my 20s, my wife called me a dumb-ass, now I’m a wise-ass. I’ve gotten wiser, that’s good! Back then, I ran three miles after work to relax. Yesterday, I cursed at my Fitbit because I’m positive I walked more than 5,000 steps. That’s bad. 

Now, the ugly. Ageism. Described as the last acceptable bias in the workplace, “age discrimination remains a significant and costly problem for workers, their families, and our economy,” according to a recent report from the federal Equal Employment Opportunity Commission (“EEOC”).

A few months ago, I was interviewed for an article, Workplace Age Discrimination Still Flourishes in America, which was recently published online by AARP. I highly recommend every adult—regardless of how young or old they are—read this exceptional article. (No, not just because I’m quoted under the heading The Company Perspective on Age Bias, and again in the article’s second-to-last paragraph.) Like so many other forms of bias, ageism is generally unconscious. Often, it’s expressed in the form of a joke, a well-intentioned but poorly worded comment or statement, or an assumption. Also, ageism isn’t just hurtful and inappropriate, it’s illegal under federal (and often state) law.  

It’s time, once and for all, to eliminate the last acceptable workplace bias. 

Thanks for spending a small part of your day with me, and have a great weekend! 


If the link above doesn’t work, go to https://www.aarp.org/work/working-at-50-plus/info-2019/age-discrimination-in-america.html


Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Jan 11, 2020

Standard

Happy Saturday!

Wait, isn’t the name of this outstanding publication FRIDAYS with Frank? OK, you caught me. But, since I took some time away for the holidays, I didn’t want to wait another week to get back at it. We’ve got a lot to catch up on! So, if you can overlook the minor timing issue, I’m sure you’ll find some great information in this Special Saturday Edition of Fridays with Frank!


I know it’s hard to believe, but there have been some changes to state and federal labor laws and regulations that are now in effect. Since most of our clients are in NY and ME, that’s where I’m focusing: Continue reading