paycheckOn May 18, 2016 the long-awaited FLSA Final Overtime Rule was issued after months of anticipation.  This Final Rule is expected to impact over four million workers in the first year alone.  According to the Department of Labor (DOL) this Final Rule could help give a “meaningful boost to many workers’ wallets, and will go a long way toward realizing President Obama’s commitment to ensuring every worker is compensated fairly for their hard work”.

Under the Final Rule, many employees who were previously exempt under the Executive, Administrative and Professional (“EAP”) white-collar FLSA exemptions will now have to be re-classified as non-exempt because they will no longer meet the salary level threshold necessary to be exempt.  These employees will now be entitled to overtime as non-exempt employees.  The white collar exemptions require the application of a three-part test including that (1) the employee be compensated on a salary basis, (2) that the employee be compensated at the requisite salary level which will now require that they be compensated at the rate of not less than $913 or  $47,476 annually which is based on a salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South, and (3) that they meet the “duties test” for the EAP white-collar FLSA exemptions.

Another white-collar exemption is for the highly-compensated employee.  The salary level threshold for this exemption was also raised by the new Final Rule from the old requirement of $100,000 to the new requirement of that the person be making $134,004 per year.  To be exempt, the employee in addition to making this amount, has to be paid at least $455 on a salary basis and must meet at least one of the other duties under the duties tests for EAP white-collar exemptions.

Another issued addressed in this FLSA Final Rule for Overtime is that the DOL did not want to have to go through this rule-making process each and every time they want to increase these salary level thresholds.  Therefore, they instituted a mechanism whereby every three years the salary level thresholds will be automatically updated to maintain the levels at these percentiles.  Employers should be aware that although the DOL had requested public comment as to whether the “duties test” should be changed to one similar to that of California in which at least 50% of the employee’s time had to be spent performing their primary duty, the Final Rule makes no changes to the “duties test”.  One more additional change under the Final Rule is that employers can now include nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

Employers clearly have a choice in deciding how to ensure compliance with this new Final Rule.  They can either re-classify all employees who make more than $455 per week but less than $913 a week to be non-exempt employees and pay them overtime or choose to raise an employee’s salary to above the $47,476 annual salary level requirement so that these workers can continue to be treated as exempt employees who are not entitled to be paid overtime.

Employers should be aware that if they decide to re-classify these previously exempt employees to non-exempt employees there may be a significant amount of ill-will with these employees.  Being re-classified as a non-exempt employee can be perceived as a demotion and also will now require these employees who previously did not have to keep track of their time, to record their time or punch a time-clock to comply with the FLSA timekeeping requirements.  Employees could resent this and although they will now be entitled to overtime, that may not be enough to make up for the change in status they perceive as a result of being re-classified.  These rules will not be effective until December 1, 2016 so employers have a little time to deal with these issues but they should begin deciding how to handle this issue sooner rather than later.  One thing is for sure.  Employers may soon be paying overtime to many more workers who were previously exempt and not entitled to overtime pay.

 


iStock_000025492693SmallAs we start the New Year, employers would be wise to conduct an audit of their employee handbooks to make sure they are up-to-date and legally compliant.  What are some of the top issues you will want to be aware of regarding potential changes for 2016?  There are many.

First and foremost, you will want to make sure that you have an accommodation policy that includes making accommodations for pregnant employees.  The EEOC recently issued a guidance making clear that although a normal pregnancy is not considered a disability under the ADA, most pregnancy-related conditions would be considered to be impairments that would substantially limit a major life activity.  Thus, employers need to make sure they have well-drafted ADA accommodation policies that include making accommodations for pregnancy-related impairments.  In addition, more and more states and localities are passing laws requiring employers to provide accommodations for pregnant employees such as Rhode Island, North Dakota, Illinois, District of Columbia, Nebraska, New Jersey and effective January 19, 2016, New York.  In addition to ensuring that your accommodation policy includes pregnant workers, you should also ensure that you are providing training to your managers so they understand that when a pregnant employee requests an accommodation, they don’t refuse to provide such accommodation because they fail to understand that this is now required.  Some of the accommodations you might have to provide include making changes to facilities, equipment or furniture, providing a leave of absence even after 12 weeks of FMLA leave, providing light duty, acquiring or modifying equipment or devices, job restructuring, providing part-time or modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials or policies, and providing readers and interpreters.  Sometimes even allowing an employee to work remotely can be a reasonable accommodation required by the ADA (Americans with Disabilities Act) and/or the PDA (Pregnancy Discrimination Act).

While we are on the topic of pregnancy, important to remember that one of the changes that the Affordable Care Act provided was the new requirement that employers provide nursing mom’s with “reasonable break time” to express breast milk at work.  They should also provide a lactation room in which to express milk that is not a rest room and that has at least a sink and refrigerator to store expressed milk.  A policy notifying employees of this right should be included in your employee handbook.  There are some state laws such as in New York that actually require employers to provide notice of this right to employees in the employee handbook.

Another change you need to watch out for and make sure you have correct in your 2016 employee handbook is to make sure that you have revised your FMLA policy to include same-sex spouses in the definition of spouse.  This is based on the Supreme Court’s decision overturning Section 3 of DOMA (Defense of Marriage Act) in addition to the Notice of Proposed Rulemaking in which the DOL set forth that same-sex spouses can take FMLA to care for their same-sex spouse with a serious health condition if the state in which they celebrated their marriage recognizes same-sex marriage.  This combined with the Supreme Court’s ruling that states can no longer prohibit same-sex marriage requires an update to your FMLA policy to include same-sex spouses under the definition of spouse for purposes of FMLA.

In addition, with more and more laws being passed legalizing “medical marijuana” it is important for you to understand what changes you will need to make to your drug-free workplace policies within your employee handbooks.  The answer is that you are still well within your rights in prohibiting an employee from being under the influence of marijuana or from using marijuana in the workplace even if they do so as a result of being a medical card holder allowed to use marijuana lawfully in that state.  Additionally, in most states that have legalized medical marijuana, it is still lawful for an employer to refuse to hire an applicant that tests positive for marijuana even if the reason why the applicant tested positive is because the applicant uses marijuana for medicinal purposes.  However, in a handful of states including Arizona, Connecticut, Delaware, Maine, Massachusetts, Rhode Island and Illinois it could be alleged to be discriminatory and unlawful to refuse to hire an applicant who tests positive on a pre-employment drug test if they tested positive because they are a medical marijuana card holder.  If you are in one of these states, you will want to consult with your legal counsel as to the best way to revise your drug-free workplace policy to ensure compliance with these state laws.

Without a doubt, the most important issues facing employers in the coming year are the proposed revisions to the Fair Labor Standards Act (“FLSA”).  On July 6, 2015 the Department of Labor issued proposed revisions to the FLSA that do several important things.  The first thing they do is to increase the salary threshold for the salary level test for determining who is an exempt employee from the prior threshold of an employee making not less than $455 to the proposed new threshold of an employee making not less than $970 a week.  The proposed revisions also will be raising the salary threshold for those who qualify as exempt based upon being a highly compensated employee from those earning at least $100,000 per year to those earning at least $122,148 a year.  In addition to these two salary threshold changes, the proposed revisions to the FLSA will also include some type of mechanism by which the salary level thresholds can be automatically increased each year without the necessity of revising the FLSA.  They have proposed using the Consumer Price Index or some other type of mechanism to allow the thresholds to be automatically increased each year.   The DOL has also requested comments on the possibility of changing the duties test for the white-collar exemptions similar to the California state wage and hour law so that a person would have to be engaging in their “primary duty” at least 50% of the time or more to qualify as exempt.  However, no specific changes to the duties test have been proposed although they have put the public on notice so that if they did want to make such a change, they would be able to.

No one is certain when these FLSA changes will be effective.  However, employers need to start preparing because these changes mean that employers will face the choice of either having to raise the salary of their currently exempt employees to the new threshold of making not less than $970 a week or face the alternative of paying more overtime to their employees who will now fall above $455 a week but below $970 a week and thus have to change from being classified as exempt to now being non-exempt under the proposed revisions.  Employers who are unprepared for these proposed revisions could end up paying significantly more overtime to their employees.

As is evident, there are many changes in 2016 coming down the road.  Clearly, employers need to conduct an audit of their policies and procedures to ensure that they are legally compliant and best protected based on the upcoming changes necessary in 2016.

 

 


 

Violence prevention mopck book cover on a lawyer's desk.

The answer to whether the recent horrific massacre in San Bernardino, CA was “workplace violence” or an act of terrorism is that it constituted “workplace violence” no matter what the motive of Syed Rizwan Farook was.  The definition of workplace violence is extremely broad.  The attacker’s motivation in any particular attack is not what defines the incident as “workplace violence” although some may think otherwise.  Rather, it is the fact that violence was committed against workers while at work or performing their job duties regardless of the attacker’s motivation.  In fact, according to OSHA the definition of “workplace violence” is “the threat of violence against workers. It can occur at or outside the workplace and can range from threats and verbal abuse to physical assaults and homicide, one of the leading causes of job-related deaths.”

After the 911 terrorist attacks, Director Thomas Mueller of the FBI in a report entitled “Workplace Violence: Issues in Response.” stated:

“The terrorist attacks that occurred in New York, Washington, D.C., and Pennsylvania on September 11, 2001, were a tragic reminder to the Nation of the threat posed by international terrorism. With the exception of the attack on the Pentagon, the targets chosen by the terrorists were not military in nature, but were workplaces where thousands of people work every day to support their families and their country.   Workplace violence was put in a new context that day. Prior to 9/11, this type of violence was viewed as perpetrated by disgruntled employees, customers, or a domestic violence/stalking relationship that surfaces at a workplace. Since that time, America’s workplaces have to be prepared not only to face the more traditional internal workplace threats, but now have to consider the external threat of terrorism.”

Thus, whether in any particular incident an attacker’s motivation for the attack was domestic violence against an ex-spouse, a stranger seeking notoriety with no ties to the workplace coming in and attacking employees, a disgruntled employee, or an employee inspired by terrorist organizations such as ISIS, the incident would still constitute “workplace violence”.  Thus, in the recent horrific massacre in San Bernardino, CA whether ultimately the investigation reveals that the attack was “ISIS inspired” or whether the attack was motivated due to a disagreement with another employee, the attack still constituted “workplace violence”.

It is important for employers to understand this because employers need to take action to protect their employees from all types of violent attacks, even those that may be “ISIS-inspired”.  Failure to do so may lead to legal liability.  Employers need to provide training to managers and employees, perform security drills, install better security measures, conduct background investigations and be much more aware of the many different types of workplace violence that can occur in the workplace today.


 

workplace violenceA holiday party at work.  One employee leaves a little upset.  Who would have ever expected that he would return with his wife and an arsenal of assault rifles and semi-automatic handguns and engage in the worst US mass violence attack since Sandy Hook in 2012.  However, this is exactly what happened yesterday in San Bernardino, CA at the Inland Regional Center.  What can employers do to prevent such violence and were there any warning signs that could have helped them be better prepared?

Of course, we still know little about this attack and therefore the answers to some of these and other questions may become more apparent when we have more information.  But for now, some of what we do know, as reported by CNN, is that the employee involved, Syed Rizwan Farook had worked for his employer, the San Bernardino County Health Department, for approximately five years.  He was a very religious Muslim according to his father and recently had taken a vacation to go to Saudi Arabia to meet a woman he met through an online dating service.  They returned from Saudi Arabia as husband and wife.

Was this a warning sign missed by his employer?  Possibly.  How many people meet someone on a dating site and then travel across the world to marry them in a country where there are many radicals.  Once he returned, he purchased some of the guns used in this attack legally.  His online dating profile also reportedly stated that he enjoyed among other activities, “target practice in the backyard”.  All taken alone perhaps not enough to be warning signs.  But as always, when we look back at all these incidents taken together, they could appear to be warning signs that he may have become radicalized by this woman online and agreed to marry her and carry out attacks in the US.  Of course, this is all complete speculation.

Unfortunately, this incident happened only a few months after another deadly attack at a television station in Roanoke, VA.  That incident followed a more common workplace violence theme in which a terminated employee returns to the workplace to seek revenge on those he blames for his termination.  That attack involved a former reporter for television station KDBJ, whose stage name was Bryce Williams, although his real name was Vester Lee Flanagan II.  Mr. Flanagan gunned down co-workers Alison Parker and Adam Ward while they were reporting live on TV.

In this case there were definite warning signs that an employer trained in how to prevent workplace violence might have recognized.  Management at the TV station described Flanagan as an “unhappy man” and as someone who had a reputation of being difficult to work with.  In addition, according to NBC News Investigations, the employment files at WDBJ stated that in 2013 when Bryce Williams had been terminated workers were warned to “call 911 immediately” if they ever were to see the former reporter Vester Lee Flanagan II at the television station again. What had Flanagan done to require such a warning if he ever returned?  Apparently,   while being terminated he threatened “You better call police because I’m going to make a big stink. This is not right.”  The television station files apparently stated that after saying this Mr. Flanagan had to be physically lifted out by his chair by members of management during which time he threw a ball cap at a station employee.  Police were called in to remove him from the premises.  Apparently one of the victims of the shooting had recorded on film the entire termination years earlier.  The TV station did have police officers guarding the TV station from morning to night for the weekend after the termination but the question remains, could more have been done?

Although with Mr. Flanagan there were many warning signs that he might come back to seek revenge on his employer and with Syed Rizwan Farook there were less warning signs, the fact remains that there are actions that employers can and should take to attempt to protect against workplace violence.  First and foremost, employers must act to have a well-drafted workplace violence policy, train their staff on their workplace violence policy and engage in practice drills so that employees know how to respond if there were to be an active shooter in their workplace.  Employers also need to conduct background investigations on employees, engage in better performance management so that if they see an employee demonstrating warning signs they do something about it before it escalates and they should install better security in the workplace such as panic buttons and security guards, if possible.   HR also needs to conduct exit interviews so that if an employee does threaten to get even for the termination the employer can take precautionary steps to protect others in the workplace.  Although such steps do not guarantee there will not be an instance of workplace violence, they can help to ensure that workers are better prepared to know how to respond to an instance of workplace violence and that management has taken the necessary steps to protect the workplace as much as possible.

Our thoughts and prayers go out to the families of the victims in these horrific acts of workplace violence.

By: Melissa Fleischer, Esq.


job interviewThe HR world constantly changes at all levels, including federal, state, and city ordinances. HR managers, especially those that work for small businesses, often have a hard time keeping up with changing laws. In fact, more than 90% of companies seek outside advice on compliance issues. Employment lawsuits have increased 400% in the last 20 years, so it is critical that employers stay up to date on regulations. Is your HR department struggling to keep up? Here are a few tips.

Stay in the Know

HR managers have a lot more to worry about than just compliance. They juggle interviewing, hiring, employee documents, training initiatives, and more. It’s no surprise that studying ever-changing employment law falls on the back burner sometimes. But, that’s exactly what HR managers should do to stay ahead.

As resistant to change as some HR departments may be, proactively jumping into new policies is beneficial for everyone. HR will have to implement these laws at some point anyway, and doing it sooner rather than later will give everyone ample time to adjust. Keep up to date on policies coming down the line so you’re prepared when it’s time to act.

Create a Blueprint for Handling Compliance

Instead of dealing with issues as they arise, create a plan that outlines how to prevent them and what to do if they occur. The U.S Department of Labor outlined a program that will help companies manage compliance. The Plan/Prevent/Protect strategy is actually a federal regulation that some companies must implement. But, it should serve as inspiration for those that aren’t:

  • Plan: Find areas where there may be a risk of legal and other violations. Engage employees in the plan and encourage them to participate in its creation. Provide copies of the plan to employees and ask for help to oversee its implementation. Above all, keep communication lines open.
  • Prevent: Go beyond the paper. Make sure the plan you and your employees create is actually implemented. Too many “mission statements” are developed and then filed away. Take the time to get every employee on board.
  • Protect: Regularly check up on employees to make sure the plan’s objectives are met. Remember, the plan is to protect the employee from violations, so let them know it’s in their best interest.

The Dreaded Audit

The word HR audit can send shivers down anyone’s spine. But in HR, it’s necessary to ensure compliance. It doesn’t have to be hard, though. Create a simple checklist of particularly challenging areas like hiring, wages, employee relations, and employee rights. Conduct audits on a regular basis using the checklist. When laws change, you’ll have a list to cross-reference so you’re not scrambling to meet regulations.

Overall, the best way to stay on top of HR compliance is with communication and preparedness. If you’re proactive and other employees know what’s going on, it might just make your life a little easier.

 

 

 


iStock_000000901325XSmallOn June 30, 2015 the Department of Labor issued long awaited proposed regulations under the Fair Labor Standards Act (FLSA). The FLSA regulations have not been revised since 2004 when the salary level amount to be exempt was raised to its current amount of $455 per week or $ annually. The new proposed regulations seek to raise the salary level amount for an employee to be exempt to $970 a week or $50,440 a year by 2016. This is a significant increase which will mean that for the current white collar exemptions of executive, administrative, learned professionals and some computer employees, if they now make less than $970 a week, they will no longer be exempt under the white collar exemptions. They will therefore now be entitled to overtime for all those hours they work over 40 in a given work week.

 
Not only will this mean a significant amount that employers will now have to pay in overtime but it can also be viewed as almost a demotion by previously exempt employees. Employers will now be faced with either paying these employees overtime to which they were previously ineligible for or raising their salary level to more than $970 a week so that they will meet the three part test to be exempt under the FLSA.

 
This three part test requires that the employee be (1) paid on a salary basis, and (2) at a salary level now of not less than $970 a week and (3) that they meet the duties test set forth for each of the white-collar exemptions. The Notice of Proposed Rulemaking also sets forth that the proposed regulations would establish a mechanism for automatically updating the salary and compensation levels going forward each year to ensure that they will continue to provide a useful and effective test for exemption.

 
The DOL estimates that these proposed regulations could change the exempt status of close to five million white-collar workers within the first year of implementation. The rulemaking period includes extensive time for comments and revisions so employers should not expect that these revised regulations will be effective until at least the end of 2015 or early 2016. But one thing is for sure. Employers may soon be paying significantly more in overtime to close to five million currently exempt workers.

By:  Melissa Fleischer, Esq.


iStock_000012564637XSmallRecently, the U.S. Supreme Court issued its decision in Young v UPS. The case addresses the application of the Pregnancy Discrimination Act of 1978 (“PDA”) and the level of accommodations that must be provided to pregnant woman seeking to have modified duty because of temporary impairments or work restrictions (such as lifting limits). The Court determined that (under the law in place pre-2009) a pregnant employee may be affirmatively entitled to additional reasonable accommodations, regardless of whether she is technically “disabled” under the ADA, if other similarly limited employees receive such accommodations, even if an employer offers a facially “neutral” policy that does not differentiate against pregnant women specifically.
However, the Court also indicated that pregnant employees are not automatically entitled to the same degree of accommodation that others might be afforded for reasons that have specific justifications, such as seniority/tenure, rejecting Ms. Young’s position that pregnant women should be entitled to essentially a “most favored nation” status. The case was remanded for further consideration. Thus, this Supreme Court decision is a mixed bag for employers, neither validating UPS’s earlier approach (UPS has since revised its policy) nor determining that it was a violation.
It is important to view this ruling in the bigger context, because the ADA Amendments Act of 2008 (which went into effect in 2009) trumps any application of earlier law. The PDA remains in effect, but complying with it is not sufficient, where the ADA as amended is now more stringent. To comply with the 2008 Amendments, employers should recognize that they are required to provide accommodations to employees who need temporary accommodations (such as lifting restrictions), including pregnant employees, even where the cause of the restriction was not job-related. Thus, whether an employee cannot lift heavy items because of an injury playing basketball or because of being pregnant, the employer should make reasonable efforts to provide an accommodation just as much as if the injury happened while at work. Further, the EEOC’s interpretation of the current law, which takes a pro-employee stance in affording pregnant employees increased protection to retain their jobs, is entitled to deference.
Employers should also keep in mind that the Pregnant Workers’ Fairness Act is before Congress and could change the landscape yet again. Meanwhile, similar legislation and mandates, providing specific protections to employees based on pregnancy or childbirth, already have been adopted in numerous states and cities, including: California, Delaware, Hawaii, Illinois, Iowa, Maryland, Minnesota, New Jersey, West Virginia, Central Falls, New York City, Philadelphia, Providence, and Washington, DC. Other states, such as Alaska (for public sector employees), Connecticut, Louisiana, and Texas, also offer more limited rights for pregnant employees to be transferred to different positions.) Some of these laws and requirements have gone into effect recently, so businesses with employees in these locations should monitor developments carefully and check with legal counsel to make sure that their current approach is compliant.
The ultimate take-away here is that when employers offer benefits — such as light duty — to one group of employees, the companies should consider carefully whether they are required to provide those same benefits to pregnant employees also. The safer, advisable course would be to make the same accommodations available to pregnant employees unless there is a clear reason why it would not be feasible to do so and a defensible basis for the distinction that is not discriminatory. Even then, having a different approach will invite litigation and may therefore prove costly. It is important to have legal counsel review such employment policies and practices to assess exposure under federal, state, and local laws.

By: S. Adam Spiewak, Esq.

HR Consultant

HR Learning Center LLC

 




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