Answers to workplace questions on off-hours events, age discrimination, severance

Posted September 13, 2016

By Katie Loehrke, PHR, editor, J. J. Keller & Associates

Running a business – or managing a single unit, department, or team within a business – is not easy. Questions that have legal and/or regulatory implications pop up on a regular basis. Answers to some of those questions aren’t always straightforward, and can require insight into various statutes as well as case law. This article shares several common scenarios and some interpretive guidance.

Question: Our company plans to sponsor an employee volleyball team this fall. Employees may choose whether or not to participate, and the events will be held outside of working hours, typically on weekends. Do we have to pay the employees who participate? If an employee gets injured, can he or she file a workers’ compensation claim?

Answer: As an enforcement policy, the U.S. Department of Labor’s Wage and Hour Division does not consider time that employees spend participating in athletic events to be hours worked, even if the events are sponsored by the employer. For example, your company may sponsor a volleyball team, but the employees are not working while playing, nor while acting as referees or similar officials. This assumes that participation is completely voluntary and that regular employment is not conditioned upon participation in the events. Since participation would not be required as a condition of the job, any injuries that might occur during an event should not be covered by workers’ compensation because the employee was not present as a condition of employment nor engaged in job duties. Many employers will therefore require participants to sign a waiver because employees may be able to file civil lawsuits for injuries that are not covered by workers’ comp.

Q: Recently, we told a very young job applicant that he would not get a position because he did not have enough experience. He later called and suggested that we had discriminated against him based on age. Should we be concerned?

A: At the federal level, the Age Discrimination in Employment Act (ADEA) protects only individuals who are age 40 or older. It does not prevent employers from favoring workers over the age of 40. What’s more, the law certainly doesn’t require your organization to refrain from considering an individual’s job-related experience in your hiring decision. It’s likely that your disgruntled applicant has a misunderstanding of the ADEA’s protections. Of course, if you’re concerned that the applicant might pursue legal action, it’s best to review the situation with an employment attorney.

Q: We are considering offering a severance package to a group of employees who we plan to lay off. Must we base the offering on length of employment?

A: Severance pay is a matter of agreement between employer and employee. Many employers do choose to base the amount of severance on an employee’s length of employment (often one or two weeks of pay for each year of service). However, employers may determine the amount in another manner or may simply choose a standard amount for all departing employees. Essentially, whether severance is paid and the amount of such severance is at the complete discretion of your company unless there is a specific agreement in place to provide it.

Q: One of our sales employees trims trees on the weekends. Can we have him do this type of work as an independent contractor on our company grounds?

A: In specific circumstances, an individual can work as both an employee and an independent contractor for the same employer. It’s rare (though possible) that an employee would take on additional duties typically performed by the company and qualify as an independent contractor for those duties, in part because the amount of control would likely be similar to the employee-employer relationship. However, when an employee performs work other than the services typically provided by the company (such as tree-trimming in a sales organization), it’s more likely that the individual could perform that work as an independent contractor. Of course, your company still needs to consider the relationship under the lenses that the federal government would, including whether the individual retains behavioral and financial controls over the work performed as an independent contractor.

About the author:

Katie Loehrke

Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit