United States: Yes, Cher, You Can ‘Turn Back Time'—You'll Just Have To Pay For It

By the way, if you haven't heard, the Cubs won something called "the World Series." Our long, national nightmarearrogant Cubs fanshas now officially begun. Now, onto things that actually matter. 

This past weekend, we rolled the clocks back. And though we got an extra hour of sleep (well, you may haveI have two children under four who didn't realize it wasn't time to get up yet), the cold, harsh reality is that the days are much shorter and the nights much longer, at least until March.

This annual power to "Turn Back Time" always reminds me of Cher. Everyone remembers Cher, right? I mean, she's been (or she was, depending upon your age) a pop star since the days of the Johnson administration (the second one, not the first.) Who could forget "I got you babe" sung with her late husband Sonny Bono? (I mean this literally. Who on this earth, who has seen Bill Murray's Groundhog Day, can forget this song? It's physically impossible.) And, of course, she made her fans' kids think she was cool again with "Believe."

Turn Back Time!

The Cher that I remember, however, was something in between the young, blossoming starlet and the aged musical diva. It's the big-haired, modern-day Cleopatra in fishnet stockings telling a crowd of sailors how badly she wanted to alter the space-time continuum for their love. You know, the music video you couldn't watch because your momma didn't approve. Or maybe that was just me.

Anyway, Cher's tribute to all things 80s aside, the end of daylight savings time brings with it a couple of employment law problems many employers may simply overlook. The first is how to pay nonexempt employees working the graveyard shift when the clock strikes 2:00 a.m. twice. The Department of Labor has issued specific guidance on its website to answer the question. According to the DOL:

  • On the Sunday that Daylight Savings Time ends at 2:00 a.m., the employee works the hour from 1:00 a.m. to 2:00 a.m. twice because at 2:00 a.m. all of the clocks are turned back to 1:00 a.m. Thus, on this day the employee worked 9 hours, even though the schedule only reflected 8 hours.

The Fair Labor Standards Act (FLSA) requires that employees must be credited with all of the hours actually worked. Therefore, if the employee works the scheduled shift, employers must compensate the employee for all hours worked. If this extra hour kicks the employee over 40 hours for the workweek, the employer must pay the employee the overtime premium1.5x the employee's "regular rate"for all hours worked over 40. Employers must be careful to check automatic payroll calculation software or applications to make sure they account for the extra hour. In large operations, failure to pay for the extra time may cause the employer to incur significant liability in the aggregate.

In addition to payroll challenges, the time change can also bring about changes in employee mood due to lack of sunlight. Known more commonly as "seasonal affective disorder," this extreme form of common seasonal mood cycles is actually considered a type of depression. According to the Mayo Clinic's website, employees suffering from seasonal affective disorder may exhibit symptoms of major depression, such as:

  • Feeling depressed most of the day, nearly every day
  • Feeling hopeless or worthless
  • Having low energy
  • Losing interest in activities you once enjoyed
  • Having problems with sleeping
  • Experiencing changes in your appetite or weight
  • Feeling sluggish or agitated
  • Having difficulty concentrating
  • Having frequent thoughts of death or suicide

In light of these symptoms, employers presented with an employee claiming to suffer from seasonal affective disorder should begin the interactive process with their employees to determine what, if any, reasonable accommodation(s) may be available. Failing to pay attention to employee requests can lead to liability. For example, in 2012, the Seventh Circuit Court to Appeals upheld a jury verdict in favor of a school teacher who claimed under the Americans with Disabilities Act (ADA) that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light. (Yes, folks, this is real life.)

On the other hand, if you don't have a window available, the Job Accommodation Network suggests four basic light products that may reasonably accommodate workers with this disorder, including: "Light Boxes," "Light Visors," "Flourescent Desk Lamps" or "Dawn Simulators." Each of these is meant to mimic the natural sunlight employees are typically exposed to during other times of the year.

Employers also should not rule out the possibility of leave for an employee suffering from symptoms of the disorder. Leave may be covered under the Family and Medical Leave Act (FMLA) or state leave laws depending on the employee's tenure with the company and state law requirements. Lastly, employers are reminded that, under the ADA, as amended, they cannot take into account the mitigating effects medication may have in improving the employee's mood or condition, but must instead treat the employee as disabled at all times. At the same time, any negative side effects caused by such medication may also require accommodation.

And the beat goes on...

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