Publications
"California Gets a Break with Brinker"
Banks and Arnold suggest that a ruling made in the matter of Brinker Restaurant Corporation et al. v. The Superior Court of San Diego County in August 2008 constitutes a material shift in the interpretation of meal and rest break regulation and class certification requirements in California. The article demonstrates how the decision reduces the meal and rest break compliance requirements for employers and sets a higher bar for meeting the test for class action certification. Banks and Arnold review specific functional changes to the law and suggest solutions for employers to continue to maintain compliance.
"How to Comply with Meal and Rest Break Law and Policy"
This article seeks to provide a better understanding of typical problems with meal and rest break compliance and offers ways to evaluate compliance vulnerabilities and minimize the probability of a lawsuit. Dr. Banks defines state-specific applications of FLSA meal and rest break law, and identifies common employer mistakes, such as understaffing and employee self-management, that promote non-compliance. Banks offers that rethinking employee incentive packages, job descriptions, time keeping systems, labor budgeting, selection, training and promotion protocols, employee grievance procedures, and productivity measures are fundamental to sustaining long-term compliance.
"How to Conduct a Wage and Hour Audit"
Banks and Aubry review revised "exemption" regulations enacted by the U.S. Department of Labor on August 23, 2004 and their potential consequence on job misclassification. The article emphasizes the importance of reexamining jobs' exempt status to determine which jobs should be reclassified as nonexempt under these new regulations. Banks and Aubry demonstrate valid wage and hour audit techniques and provide guidelines to assess overall overtime class action risk. The article offers that job description, job training, and selection and performance criteria redesign are all fundamental to misclassification risk mitigation.
"Keeping Exempt Jobs Exempt: How to Avoid Wage And Hour Litigation"
Dr. Banks reviews the three categories of wage and hour exemption - executive, administrative, and professional - and outlines how discretion around management styles increases the difficulty of defending the executive exemption against a lawsuit compared to the other two categories. The article highlights several indicators of management style preference that are potentially problematic for exempt jobs, and provides best practice guidelines to maintain executive exemption while promoting productivity (primarily selecting and training qualified managers to focus on staffing, scheduling and deployment, and performance and operations management).
"Wage and Hour Litigation: I-O Psychology's New Frontier"
Banks and Cohen investigate the differences between the Federal and California interpretation of FLSA guidelines and review precedence for establishing class certification and exemption status under each pretense. The article discusses the fundamental necessity for job analysis in these determinations and emphasizes the expertise of I-O Psychologists in this area of interest compared to traditional class certification and exemption expert witnesses. The article further details the role of I-O Psychologists in different job analysis processes fundamental to FLSA compliance maintenance.
Selected Presentations
- Symposium: “Methodological Approaches to Wage and Hour Cases.” Society for Industrial/Organizational Psychology Annual Meeting, New Orleans, 2009.
- Master Tutorial: “Update in Wage & Hour Litigation: New Opportunities for I-O Psychologists” (with L. Aubry). Society for Industrial/Organizational Psychology Annual Meeting, San Francisco, 2008.
- Master Tutorial: “I-O Psychology’s New Frontier: Wage and Hour Litigation.” (with F. Leffler). Society for Industrial/Organizational Psychology Annual Meeting, New York, 2007.