With the Department of Labor's We Can Help campaign actively reaching out to employees with information on how to file a wage/hour complaint and the Paycheck Fairness Act poised for consideration in the Senate, it is becoming less and less prudent to turn a blind eye to either wage and hour problems or potential pay discrimination.
And yet, I have encountered more than one employment attorney who has advised their clients (who, in some cases, are also my clients) to be cautious about proactively auditing or assessing their pay practices because of the risk associated with what might be found and the attention inadvertently directed to potentially problematic areas. Although I understand and appreciate the risk factor, I find this mindset troubling.
That's why I really appreciate attorney Jon Hyman's (of the Ohio Employer's Law Blog) post on the matter: Wage and Hour audits are not without their risks (but are still necessary). In it, Jon shares a story which illustrates the downside of wage and hour audits, but emphasizes that the benefits of being proactive still ultimately outweigh the risks.
From Jon's post:
In Wlotkowski et al. v. Michigan Bell Telephone Co., a federal judge conditionally certified a class of workers who claim they are owed overtime as a result of being misclassified as “exempt”. The class is comprised of employees who are currently classified as “non-exempt.” They are suing to recover unpaid overtime for the time during which their employer had previously allegedly misclassified them as exempt. Because their job duties didn’t change when their pay classification changed, they questioned why they had been working for years without being paid overtime.
Employers may read this case and decide that they are better off burying their heads in the sand and ignoring wage and hour violations. This is a bad idea. Here’s what happens. A terminated employee goes to see a lawyer about a wrongful discharge lawsuit. The lawyer then asks this question: “Tell me about how you were paid.” The next thing you know, you are defending a class action and spending hundreds of thousands, if not millions, of dollars in legal fees, back wages, and potential liquidated damages and the plaintiffs’ attorneys’ fees. A wage and hour audit conducted by an experienced attorney can help stop this scenario from ever happening.
And it is our collective unwillingness (whether encouraged by legal counsel or not) to proactively address pay issues that brings greater enforcement activity and newer, more restrictive laws to our doorsteps. Not worth it in the long run.
Ann Bares is the Editor of Compensation Café, Author of Compensation Force and Managing Partner of Altura Consulting Group LLC, where she provides compensation consulting services to a wide range of client organizations. She earned her M.B.A. at Northwestern University’s Kellogg School and enjoys reading in her spare time. Follow her on Twitter at @annbares.
Image: Creative Commons Photo "Courtroom" by srqpix
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