NASCAR races can also draw spectators from great distances. People living in the northeastern part of the U.S., for example, often make the pilgrimage to Daytona, Florida, or Bristol Motor Speedway, in Tennessee. So don’t be surprised to hear that your employees are heading for one of these far flung destinations.

The races take place on Saturday and Sunday, you might say. True, but did you know that NASCAR races can be week-long events, starting on Monday or Tuesday and culminating in the big race on Sunday afternoon?

Nearly all race tracks have facilities for RV and trailer camping. Some die hard fans spend the entire week hanging out at their favorite track, where there are other races and events to keep them entertained.

Figuring out which employees do and don’t need to be paid overtime is one of HR’s most confusing tasks. Here are some common slipups the Department of Labor is looking for.

These are big OT mistakes made by many employers, according to labor law attorney Micheal Lorenger:

1. Making all salaried employees exempt — Even if you don’t pay workers an hourly wage, they’re owed overtime if they don’t meet one of the FLSA’s specific exemptions. Most of the exemptions require employees to be paid a salary, but that’s only one test out of several.
2. Improperly deducting from a salaried employee’s pay — For employees to pass the salary test under the FLSA, the company can’t deduct their pay based on quality or quantity of work (except when an employee misses an entire day), or for lost or damaged equipment. Companies can still make workers pay for equipment they damage — you just can’t take the amount directly out of someone’s paycheck.
3. Misclassifying assistant managers — In most cases, managers are exempt from OT — but don’t make the mistake of lumping assistant managers in with them just because of their title. The key is the amount of authority the assistant has. In big departments, they might have the power to make their own decisions regularly. In other cases, the assistant’s job might just be to make sure the manager’s decisions get carried out.
4. Misinterpreting the “administrative” exemption — Though the same terminology is used, the administrative OT exemption has nothing to do with administrative assistants. In fact, most admins do not qualify for an exemption. The administrative exemption refers to people involved in general business operation who use “discretion and independent judgment” in their work.
5. Not correcting previous mistakes — If a company realizes an exemption was misapplied, many companies do nothing and hope no one notices. That’s the easiest option in the short term — but it’s also the easiest way to end up in court fighting a claim for back pay.

Read the facts of this real-life case and decide: Who won?

The facts:

To meet production demands, the company required all employees to work overtime. No exceptions were ever made, and employees all worked roughly the same number of OT hours. However, one employee was barred by her doctor from working OT due to a medical condition. The company terminated her, and she sued under the Americans with Disabilities Act.

The employer said:

Working the required number of hours was an essential job function. Therefore, she had no standing to sue.

Who won the case?

Answer: The employer.

Why: As the judge said, “An employer’s mandatory overtime requirement has been recognized as an essential job function” — just like other attendance requirements that have a legitimate business purpose.

The company also lacked the option of moving her to a different position — all jobs she was qualified for required the same hours.

One big key to victory in this case: consistency. By showing that all employees were held to the same rules with no exceptions, the company was able to show that working overtime really was an essential function of the woman’s job.

Cite: Tjernagel v. Gates Corp.

An employee comes to you or a manager with a harassment claim. What’s the best way make sure that internal complaint doesn’t turn into a court visit?

A solid investigation, says Robert Yonowitz, an attorney with the law firm Fisher and Phillips. Thoroughly investigating the facts and taking appropriate action gives companies an “affirmative defense” and shows the employee — and possibly a judge — that everything was done to diffuse the problem.

However, botched investigations can be costly. Here are seven common mistakes that get companies in trouble:

1. Trying to be “right” instead of “reasonable” — Obviously, the goal of an investigation is to get the facts and find the truth about what happened. But things aren’t always that conclusive, and the courts know it. That’s why companies are normally off the hook if the action they take is reasonable based on the facts they were given.
2. Agreeing to “keep it between you and me” — If a manager gets a complaint, action must be taken — even if the victim asks the manager not to do anything. In a worst case scenario, the employee’s intentionally setting your company up for a lawsuit. Even if that’s not the goal, you’ll still get in trouble if the harassment continues.
3. Promising confidentiality — There’s no way to conduct an investigation while keeping the parties anonymous. It just can’t be done — witnesses and decision makers need to know what’s going on. That said, you should ask witnesses to keep their lips sealed after you interview them.
4. Having one person in charge — One way to avoid complaints of a biased investigation is to have a team in charge — usually HR in tandem with upper management, possibly with an attorney providing guidance. Also, make sure there’s a witness present during interviews.
5. Not getting it in writing — Before asking any questions, have the alleged victim write everything he or she knows about the situation and sign the statement. Same goes for witnesses. That way you have documentation in case people change their stories if they end up in a courtroom.
6. Leading witnesses — Don’t say something like, “We’ve been told Johnny may have sexually harassed Sally — do you know anything about it?” Instead, start out vague: “You’ve been identified as a possible witness to policy violations involving Sally and Johnny. Have you seen anything?” If the answer’s no, make sure you get that in writing. Otherwise, find out what they know.
7. Making legal conclusions — When documenting the conclusions of the investigation, don’t ever write “Johnny sexually harassed Sally” — that’s a conclusion only a judge can make. Instead, write that he broke company policy and list the specific offensive actions.

Here’s what happened:

A recovering alcoholic worked for a company in Indiana. He had attendance problems and was a few absences away from termination. One day he relapsed, and his wife called the hospital to have him admitted.

He didn’t start getting treated for a few days, but he missed three days of work in the meantime. So the company fired him.

He sued, claiming all his absences were covered by FMLA. But the company argued the first few weren’t. The law only gives time off for treatment of substance abuse – not incapacity due to the abuse itself.

The court agreed with the company.

The man argued that the treatment period should include the time he spent waiting for admittance to the hospital. But the law’s the law, the judge said. And under FMLA, “treatment” means actually seeing a doctor.

Cite: Darst v. Interstate Brands Corp.

Religious discrimination: It’s becoming more common as a legal complaint — and it’s one that’s still misunderstood by many employers.

Last year, 2,880 religious discrimination charges were filed with the EEOC. That’s still a small percentage of the total charges, but the number’s rising quickly. Since 1992, religious bias claims have nearly doubled.

To clarify what companies need to look out for, the EEOC has offered some guidance in the form of a 94-page Compliance Manual. Here’s what the agency wants HR to know:

‘Religion’ defined

The law requires employers to accommodate — and not discriminate on the basis of — employees’ sincerely held religious beliefs. But what’s protected under the law?

The answer: A lot of things, according to the EEOC. It isn’t just traditional, organized religions that get protection. The law also covers beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”

How about the question of whether beliefs are “sincerely held” — in other words, what if you think someone’s faking it?

Not much luck for the employers there, either. As the EEOC says, “the ‘sincerity’ of an employee’s stated religious belief is usually not in dispute.” In some cases, insincerity may be obvious, but it’s usually best to give the employee the benefit of the doubt, since courts tend to believe employees’ beliefs are legit.

Religious accommodations

Most of the claims involve a failure to accommodate. The most common accommodations include occasional or permanent schedule changes, exceptions from dress codes and other rules to allow religious expression, and transferring employees or changing job duties if their beliefs bar them from performing a specific task.

Companies normally have to accommodate an employee if:

• The employee gives notice. Workers need to tell a supervisor what they want and explain that they want it for religious reasons.
• Co-workers’ rights aren’t interfered with. If an employee’s religious expression involves pressuring others to change their own beliefs or other forms of harassment, that behavior doesn’t need to be tolerated.
• The request is reasonable. Companies don’t need to take on “undue hardships.” For example, if nearly everyone in a department asks not to work a certain day of the week, or if there’s a legitimate business need for not making policy exceptions, the request can usually be denied.

What if co-workers complain that someone’s getting “special treatment”? That’s a reason some companies give for denying requests — and it’s the wrong move, says the EEOC.

The “undue hardship” has to be more than just the resentment or jealousy of other employees. There must be an actual cost involved, such as a big drop in productivity or the need to pay a lot of overtime to cover a schedule change.

Other pitfalls

In addition to botched accommodations, here are some things the EEOC says can get companies snagged with religious bias claims:

• Hiring practices — Obviously, you can’t refuse to hire someone because they do or don’t hold a certain belief. But companies are also barred from asking applicants if they need any religious accommodations, such as time off. What can you do? Just make sure applicants understand the schedule you need and ask if there’ll be any problems.
• Inconsistency — The Compliance Manual gives an example of a manager with two employees who follow different beliefs. They’ve both been late to work because of religious services. If the manager treats one of them differently, the company would probably have a lawsuit on its hands.
• Harassment — As with sexual harassment, employers can be liable if employees are harassed based on their religious beliefs.

You can read the entire document from the EEOC here.

A recent CareerBuilder.com survey asked employees about their own tardiness habits. The result: 15% of them are late at least once a week.

The most common excuses were traffic, bad weather and having to get kids ready for school. But a full quarter of the employees surveyed said they regularly lie about why they were late. Here were the 10 most ridiculous reasons they gave:

1. I dreamed that I was fired, so I didn’t want to get out of bed.
2. I couldn’t find the right tie, so I had to wait for the stores to open so I could buy one.
3. I was up all night arguing with God.
4. A raccoon stole my work shoe off my porch.
5. I wasn’t thinking and accidentally went to my old job.
6. While rowing across the river to work, I got lost in the fog.
7. My son tried to flush our ferret down the toilet and I needed to tend to the ferret.
8. I didn’t have money for gas because all of the pawn shops were closed.
9. My dog dialed 911, and the police wanted to question me about what “really” happened.
10. I just wasn’t “feelin’ it” this morning.

Have you or your managers ever heard any excuses that can top those? Let us know in the comments section.

The facts:

An employee used up her 12 weeks of FMLA leave. When she got back, she still couldn’t work full time, so she asked to be put on a part-time schedule. The company said no, she could only get her full-time job back. She sued, claiming she was owed a new schedule as an “accommodation” under FMLA.

The employer said:

FMLA doesn’t say anything about accommodating employees. The Americans with Disabilities Act does, but the woman’s condition didn’t meet the ADA’s definition of a disability. Therefore, there was no obligation to let her work part time.

Who won the case?

Answer: The employer.

Why: The court agreed that once the woman used her 12 weeks of leave, the company didn’t have to accommodate her illness.

In some cases, employees might have conditions that make them eligible for FMLA leave and qualify as protected disabilities. But courts have agreed that meeting the definition under one law doesn’t automatically mean an employee’s protected by the other.

Cite: Baker v. Hunter Douglas Inc.

Disciplining problem employees can get tricky for managers — especially when it’s a lax performer who just got back from medical leave. Here’s how to protect your company against retaliation suits.

Take this recent case:

A department manager took medical leave. While she was out, the company conducted a regularly scheduled audit of her department to measure its performance in various areas. The department failed the test.

When the manager came back, she was told she’d have to raise the department’s score by a certain amount, or — in accordance with company policy — she’d be disciplined and possibly fired.

She quit before that could happen, though, and sued the company. She claimed the new performance goal “changed the conditions of her employment” in violation of FMLA, and felt she was held to those high standards in retaliation for taking leave.

Significant change?

The court threw the case out. Why? Because the law doesn’t grant employees favorable treatment just because they took FMLA leave. Companies have been hit with retaliation suits for scrutinizing an employee’s work more closely than others’ — but in this case, the company was able to show the audit would have happened anyway, and the employee was merely held to a standard set of requirements.

Also, the woman shot herself in the foot when she voluntarily quit. She claimed she was given an impossible goal — which was tough for her to prove since she didn’t even try.

3 keys

This case shows that, yes, employees can be legally disciplined after returning from FMLA leave. Here are some of the keys to compliance the company followed:

• The company was consistent — The audit standards were clearly established and consistently enforced with all managers. If, on the other hand, the woman was held to higher standards than her peers, it might have been easy to claim retaliation.
• There was nothing new — The woman claimed her job had been changed significantly, but in reality, all the company did was enforce a pre-existing policy.
• It would have happened if she didn’t take leave — The department would have been audited whether the woman took FMLA leave or not. Also, the company made sure the audit covered things the manager should have fixed before her leave, rather than areas that were out of her control because she took time off.

Cite: Chandler v. La Quinta Inns, Inc.

That’s what happened to one employer when a worker claimed her religion required her to display “facial jewelry” at all times. The company said no. She spent most of her time dealing with customers and was bound by a strict dress code.

She sued, but the company won. The court ruled it was OK to require employees to look professional in front of customers (Cite: Cloutier v. Costco).

Going the other way

The keys to victory in that case: 1) business need, and 2) a consistently enforced policy. Not all companies have been so lucky in court.

In another case, an employee was told to cover tattoos he had on his arms. He refused, because they were religious symbols. He was fired, and he sued.

In court, the company claimed that he dealt with customers so it had a legitimate business reason to ask him to cover up. But the company had no written policy banning employee tattoos, and the guy had been working for six months before anyone mentioned the problem. The company lost the case and eventually paid a $150,000 settlement (Cite: EEOC v. Red Robin Gourmet Burgers).

What you need

So when can you ask employees to hide their tattoos, even ones with religious significance? When:

• you have a consistently enforced policy
• allowing exceptions to the policy would cause a hardship (such as when employees are visible to customers, or co-workers complain about body art that’s offensive), or
• safety is an issue.

Finally, with all religious accommodation requests, it’s smart to take them seriously and treat all employees’ beliefs as legitimate — yes, even members of the Church of Body Modification get legal protection.