Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tuesday, Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s own Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.


Agenda

1:00 PM – Registration and Networking

1:30 PM – OSHA Panel

  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading

EEOC Attacks “No Fault” Attendance Policies as ADA Violations

As you know,shutterstock_policies and procedures the Americans with Disabilities Act (ADA) prohibits discrimination against disabled employees and job applicants in all aspects of employment, including hiring, firing, and promotion.  It also provides rules for employers regarding the extent to which they may inquire about an employee’s physical or mental health, and requires employers to provide reasonable accommodations to covered employees, unless such accommodations would cause undue hardship.  Whether an accommodation is reasonable or would cause undue hardship on the employer is very fact-specific and is usually determined on a case-by-case basis, but the Equal Employment Opportunity Commission (EEOC) seems to have taken a hardline approach on employer policies related to certain types of accommodations.

One type of accommodation often requested is leave (which also tends to implicate the Family and Medical Leave Act).  Employers frequently receive such a request where an employee suffers a disabling injury, such as a broken bone, that requires him to miss work for an extended period of time to recover.  In this context, the employee will normally request leave for an extensive, but certain amount of time with at least a tentative end date, usually in accordance with his doctor’s recommendation.  Although most circuit courts agree that employers need not provide employees with indefinite leave, enforcement guidance provided by the EEOC states that company policies setting a finite limit on the length of leave violates the ADA’s requirement for employers to engage in the interactive process to discuss reasonable accommodations.

So, what happens if an employer implements a blanket “no fault” attendance policy, whereby employees are assigned points for absences, regardless of reason, and are terminated for not being able to return to work after 180 days of leave?  Employers might think this is an effective way to maintain neutrality and avoid asking employees about their reasons for taking leave – it gives employees the power to manage their leave as they see fit and takes management out of the picture.  But, the EEOC disagrees.  In fact, the EEOC would call this a form of “systemic discrimination against employees with disabilities” in violation of federal law, as demonstrated by a recent July 2018 consent decree entered into by the EEOC and Mueller Industries, Inc.

In EEOC v. Mueller Industries, Inc., the EEOC filed suit in the U.S. District Court for the Southern District of California against Mueller Industries, Inc., a global metal goods manufacturer, claiming disability discrimination.  It charged the company with terminating employees and/or failing to provide reasonable accommodations for those exceeding its maximum 180-day leave policy.  The EEOC also stated that the company violated federal law by implementing its attendance policy in a way that assigned points for absences, regardless of reason.  Essentially, the EEOC took issue with the fact that the “no fault” policy did not allow for the type of individualized assessment that the ADA requires.  Through the interactive process, employers and covered employees are meant to discuss the types of accommodations needed to allow the employee to perform his essential job functions, and to permit employers to determine whether the accommodations discussed are reasonable.  Although the burden of raising the need for an accommodation rests on the employee, once an accommodation has been requested, or the need for an accommodation has been identified, it is the responsibility of the employer to initiate the interactive process and determine a reasonable accommodation for that individual employee.  The EEOC’s enforcement guidance and July 2018 consent decree seem to direct that a “one-size-fits-all” leave policy simply does not work.

The case concluded when the parties entered into a consent decree, which will remain in effect for two-and-a-half years and applies to all Mueller facilities nationwide.  It provides for $1 million in monetary relief, as well as broad injunctive relief.  Namely, the consent decree requires that Mueller reinstate any affected individuals, revise its written policies and procedures regarding its complaint system, appoint an ADA coordinator, create and maintain an accommodation log, post a notice for its employees about the case, provide training to all employees on the ADA, develop a centralized tracking system for accommodation requests, and submit annual reports to the EEOC verifying compliance with the decree.  This can be a pretty hefty price for employers to pay, all over one policy.

In light of the EEOC’s guidance and apparent enforcement posture, employers should review their attendance procedures and make sure they are not implementing such blanket “no fault” leave policies that do not make room for employers and disabled employees to engage in the interactive process.  Leave policies should always be developed and written with the ADA in mind.  This is especially true in today’s enforcement climate where the EEOC has announced that addressing emerging and developing issues in equal employment law, including issues involving the ADA, is one of its six national priorities identified in its Strategic Enforcement Plan.

Court Finds that Restaurant Complied with California Law by Requiring Employees Purchasing Discounted Meals to Eat their Meals on Premises

By:  Megan S. Shaked

In California, generally an employer may not employ a non-exempt employee for a work period of more than five hours per day without providing the employee with a meal period that may be taken off the premises. Yet, in the restaurant industry employers often provide employees free or discounted meals to be eaten on the premises. Such perks are provided for countless reasons, including to allow employees to enjoy the dishes being offered to customers, to build morale and productivity, and to discourage theft.

In Rodriguez v. Taco Bell Corp., the United States Court of Appeals for the Ninth Circuit considered whether a restaurant violated California law by requiring employees purchasing meals from the restaurant at a discount to eat their meals on the premises.

In Rodriguez, a restaurant employee filed a class action lawsuit against Taco Bell claiming she was entitled to be paid a premium rate for the time she spent on the employer’s premises eating the discounted meal during her meal breaks. She argued that because the employer required the discounted meal to be eaten in the restaurant, that the employee was under sufficient employer control to render the time compensable.

At the time, the restaurant offered thirty-minute meal breaks that were fully compliant with California requirements, but with an offer that employees could purchase a meal from the restaurant at a discount. The catch? Employees were not required to purchase the discounted meal, but if they chose to they could only get the discount if they ate the meal in the restaurant. The policy was intended to prevent theft.

The court, applying the meal period standard set out by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court, reasoned there was no violation of California law because the employer relieved employees of all duties during meal breaks and exercised no control over their activities. Employees were free to use the thirty minutes as they wanted, and the employer did not interfere with the employees’ use of the break time. Employees were not required to purchase any restaurant products.

The court in Rodriguez distinguished cases where employers exercised control over employees even though they were not performing work by, for example, requiring employees travel to work on employer provided transportation. Where employees were compelled to participate, compensation was required. On the other hand, where employers offered a benefit or service that employees could choose, compensation was not required. The court further distinguished cases where employers exercised control over employees during their breaks by, for example, subjecting them to “on-call” restrictions. In such cases employees were subject to performing duties for their employer during breaks and thus entitled to compensation for such time.

The court also rejected an additional claim by plaintiff that the discounted value of the meal should be added to her regular rate of pay for overtime purposes. Since the court held plaintiff was not entitled to be paid for her time eating the discounted meals, it likewise held she was not entitled to overtime pay for it either.

Background on Meal Periods  

In general, non-exempt employees who work more than five hours in a day are entitled to an unpaid meal period of not less than 30 minutes. The meal period must begin no later than the fifth hour of work. Yet, if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

A second meal period of not less than 30 minutes is required if non-exempt employees work more than ten hours in a day. The meal period must begin no later than the end of the tenth hour of work. If the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived.

Wage Order 5, which governs meal periods, rest periods and overtime in the restaurant industry, requires employees be relieved of “all duty” during the meal period. The failure to provide a required meal period can be a costly mistake for employers. Employees are entitled to premium wages of one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided.

Prior to the decision in Brinker, there was uncertainty over what it meant for an employer to provide a meal period. Brinker clarified that an employer is obligated to relieve the employee of all duty for the designated period. Although employers are not required to police employees to ensure no work is performed, employers must relinquish control over employee’s activities, must permit them a reasonable opportunity to take an uninterrupted 30-minute break, and must not impede or discourage them from doing so. In discussing the history of meal periods, the Brinker Court agreed with the Division of Labor Standards Enforcement’s historic interpretation of the wage order that generally employees must be free to leave the premises during their meal period.

Takeaways for Businesses

Rodriguez sanctions a common practice in the restaurant and food service industries to offer employees free or discounted meals eaten on the premises. It remains true that employees not falling within this exception must be permitted to leave the work place for a proper off-duty meal period. The key will be, as it was in Rodriguez, that the employee voluntarily chooses to purchase a discounted meal and the employer does not interfere with the employee’s activities while on break.

This case is a good reminder for businesses to ensure their meal period policy is up to date and that managers are adequately trained to ensure compliance. Care should be taken so that employees are not discouraged from taking their uninterrupted, duty-free meal periods.

 

California Court Negates FLSA’s “de minimis” Rule

As most of our blog readers are aware, the Fair Labor Standards Act (“FLSA”) requires employers to keep records on wages, hours and other items, as specified in Department of Labor regulations.  Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations.

Clock

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, typically need not be compensated. Until now, the courts have held that such periods of time are “de minimis” and thus need not be compensated. The FLSA’s de minimis rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.

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Mitigating Risk for Rogue Employee Speech

shutterstock_angry manGenerally, employers can be held vicariously liable for the tortious conduct of an employee committed within the scope of his or her employment.  This often arises in the context of negligence cases, such as automobile and workplace accidents.  However, employers can also be held liable for defamatory statements made by their employees when those statements are made within the scope of their employment.  Therefore, it is important to mitigate this risk through effective policies and procedures and employee training.

Employers do not need to police employee communications around the clock.  However, employers can and should provide clear policies about employee conduct in the Continue reading

DOL’s Persuader Rule Rescinded

As we reported back in 2017, the Department of Labor (“DOL”) had promulgated a proposed rulemaking to rescind its controversial 2016 “Persuader” Rule.  Less than a year later, the Persuader Rule has been officially rescinded as of Tuesday, July 17, 2018.  In a news release announcing the Persuader Rule Rescindedrescission, Nathan Mehrens of the Office of the Deputy Assistant Secretary stated, “By rescinding this Rule, the Department stands up for the right of Americans to ask a question of their attorney without mandated disclosure to the government.”  This statement addresses one of the most significant sources of conflict over this Rule, both during and after its promulgation, and clearly identifies an important outcome of the DOL’s decision to withdraw it entirely.

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Conn Maciel Carey Adds Seasoned Employment Attorney Megan Stevens Shaked to Expand its California Practice

Conn Maciel Carey is pleased to announce that Megan Stevens Shaked has joined the firm as a senior associate in its San Francisco, CA office.  Ms. Shaked, an experienced employment litigator, will represent clients in a wide range of employment-related litigation, and counsel clients on a myriad of legal issues that California employers face in the workplace.

“Megan brings a depth of experience with employment litigation, counseling and training that will enhance the employment law services we provide to employers across all industries,” said Andrew J. Sommer, head of the firm’s California practice.

“Megan is a great fit for the continued growth of our California practice,” said Kara M. Maciel,” a co-founder of the firm and Chair of the firm’s national labor and employment practice.  “California is a prominent base for our firm’s work, and Megan brings deep experience with the full range of employment issues that California employers face”

Ms. Shaked has successful trial experience, and brings a creative approach to resolving tricky client issues.  Those qualities fit perfectly with the Conn Maciel Carey model.  Ms. Shaked added that:

“I was drawn to Conn Maciel Carey by its highly-respected nationwide practice and broad-based experience in employment litigation, counseling and workplace safety.  Leveraging my litigation experience, I am looking forward to working with its attorneys to provide quality legal service to the firm’s clients.  I am excited to join such a successful, dynamic group of attorneys.”