The Impact of Workplace Violence as it relates to Employment Laws and OSHA [Webinar Recording]

On September 20, 2017,  Kara M. Maciel and Andrew J. Sommer of Conn Maciel Carey’s national Labor & Employment and OSHA – Workplace Safety Practices presented a webinar regarding The Impact of Workplace Violence as it relates to Employment Laws and OSHA.

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Approximately 1 million workers experience violent acts at work annually. Violence in the workplace is a major concern for employers especially given the events that took place in 2016 in San Bernardino Inland Regional Center shooting massacre and in Hesston, Kansas.  Events like these illustrate that workplace violence can occur at any place at any time. The obvious and most important threat it poses is to the health and safety of anyone caught in the path of violent co-workers or third parties. But, workplace violence can have many other cascading, and negative effects such as reputational harm, and it can result in costly lawsuits ranging from negligent hiring or supervision of its employees to OSHA citations. If violence occurs in your workplace, it is vital that employers have strong workplace violence policies in place to help prevent workplace violence but also to respond to it if and when it does occur.

Here is a link to the recording of the webinar.

This webinar is part of Conn Maciel Carey’s 2017 Webinar Series.  Click here for the full schedule and program descriptions for the 2017 series, and click here to send us an email request to register for the entire 2017 series.

If you missed any of our prior webinars in the 2017, here is a link to Conn Maciel Carey’s Webinar Archive.

Hurricanes Headaches:  HR FAQs for Employers

Hurricane.jpgHurricanes Harvey, Irma and Jose have hit, are hitting, and will soon be hitting the United States, and first and foremost, employers need to make sure their employees, customers, and guests are safe from the storm.

Natural disasters such as hurricanes, earthquakes and tornadoes have posed unique human resource (HR) challenges from wage-hour to FMLA leave and the WARN Act. The best protection is to have a plan in place in advance to ensure your employees are paid and well taken care of during a difficult time.

Although no one can ever be fully prepared for such natural disasters, it is important to be aware of the federal and state laws that address these situations. Our guidance can be used by employers in navigating through the legal and business implications created by events such as Hurricanes Harvey, Irma, and Jose.  In addition, the information may be applicable to other crises and disasters, such as fires, flu epidemics and workplace violence.

Frequently Asked Questions 

If a work site is closed because of the weather or cannot reopen because of damage and/or loss of utilities, am I required to pay affected employees?

The Fair Labor Standards Act requires employers to pay their non-exempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay nonexempt employees if it is unable to provide work to those employees due to a natural disaster.

An exception to this general rule exists when there are employees who receive fixed salaries for fluctuating workweeks. These are nonexempt employees who have agreed to work a specified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.

For exempt employees, an employer will be required to pay the employee’s full salary if the work site is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use available leave for this time.

Is it lawful to dock the salaries of exempt employees who do not return to work when needed after an emergency or disaster?

The U.S. Department of Labor considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. Under this circumstance, an employer may place an exempt employee on leave without pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work.

If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from a salary for such absences. However, a deduction from salary for less than a full-day’s absence is not permitted.

We recommend caution, however, in docking salaried employees’ pay and suggest that you first consult with legal counsel. Moreover, many employers instead require employees to “make up” lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for nonexempt employees, who must be paid overtime for all hours worked over 40 in a workweek.

What other wage and hour pitfalls should employers be aware of following a hurricane or other natural disaster?

On-call time: An employee who is required to remain “on call” at the employer’s premises or close by may be working while “on call,” and the employer may be required to pay that employee for his “on call” time. For example, maintenance workers who remain on the premises during a storm to deal with emergency repairs must be compensated — even if they perform no work — if they are not free to leave at any time.

Waiting time: If an employee is required to wait, that time is compensable. For example, if employees are required to be at work to wait for the power to restart, that is considered time worked.

Volunteer time: Employees of private not-for-profit organizations are not volunteers if they perform the same services that they are regularly employed to perform. They must be compensated for those services. Employers should generally be cautious about having employees “volunteer” to assist the employer during an emergency if those duties benefit the company and are regularly performed by employees.

Can employees affected by a hurricane seek protected leave under the Family and Medical Leave Act (FMLA)?

Yes, employees affected by a natural disaster are entitled to leave under the FMLA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse or parent with a serious health condition may also be entitled to leave under the FMLA.

Some examples of storm-related issues might include absences caused by an employee’s need to care for a family member who requires refrigerated medicine or medical equipment not operating because of a power outage.

If a work site or business is damaged and will not reopen, what notice must be provided to affected employees?

The Worker Adjustment and Retraining Notification (WARN) Act, a federal law, imposes notice requirements on employers with 100 or more employees for certain plant closings and/or mass layoffs. However, an exception exists where the closing or layoff is a direct result of a natural disaster.

Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days’ notice, the employer must prove that the conditions for the exception have been met. If such a decision is contemplated, it is advisable to consult with legal counsel about the possible notice requirements to ensure compliance with the WARN Act.

Our HR department has been disrupted, and it may be weeks before things are back to normal. Will the government extend any of the customary deadlines governing employer payment for benefits, pension contributions and other subjects during this recovery effort?

During previous natural disasters, particularly Hurricane Sandy and Katrina, many governmental agencies and entities extended the deadlines for certain reports and paperwork. Therefore, it is expected that with future natural disasters, the government will provide some deadline extensions, but, as with every natural disaster, the government’s response will vary.

Regardless of what extensions may be granted, employers should be fully aware of state laws and implement any policies or plans necessary to minimally interrupt the payment of wages to their employees.

Employees from other states want to donate leave to affected employees. Is this lawful?

Yes. Employers can allow employees to donate leave to a leave bank and then award the donated leave to the affected employees.

Disaster Preparation Checklist

  • Identify and notify those employees whom you believe should be deemed “emergency services personnel” and will be required to work during a storm or evacuation order. Make arrangements for providing these employees with food and shelter. Make sure to have procedures in place for the evacuation of these employees if the hurricane or other disaster causes the workplace to become unsafe.
  • Identify your “essential employees.” These are employees whom you cannot require to be at work during a natural disaster but you believe are vital to the continued operations of your company. Determine what incentives you can provide to these employees to entice them to work during a disaster or to return to work as soon as possible. These incentives can include shelter, hot meals, fuel and arrangements for family members.
  • Establish a contingency plan to address the needs of those employees who may be temporarily living in company facilities during a storm or disaster. Ensure that you can provide such necessities as gas, food and shelter to these employees.
  • Review your existing policies to determine how to distribute paychecks to employees who cannot come to work because of adverse weather conditions or a lack of power.
  • Establish a communication plan. This will include identifying ways to keep the lines of communication open with your employees even if power is out in the local community. Collect primary and secondary contact sources from your employees. Consider establishing a toll-free phone line, through which employees can obtain updated information regarding the company’s status during an emergency.
  • Review applicable leave policies and procedures to address and allow for disaster-related leave requests, including how such leave will be treated (i.e., paid or unpaid).
  • Formulate a team of decision makers who will have authority to make crucial decisions related to other human resource matters in the midst of the hurricane or other disaster. This team should establish a method of communicating with each of its members during the hurricane.
  • Review any existing employee assistance programs and ensure that employees know how to utilize these programs during the aftermath. A successful program can promote the fast and efficient return of your employees.
  • Remember to be sensitive to the needs of your employees who have experienced extensive property damage or personal devastation. Always keep in mind that human life and safety trumps all other business necessities.

Natural disasters can pose a myriad of HR challenges for employers. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods of time because of damage or loss of utilities.  The economic effects of a natural disaster will have long-term consequences on businesses in the affected region.

 

Obama Era Overtime Rule Officially Struck Down

On August 31, 2017, a Texas federal judge invalidated the Obama administration’s controversial rule expanding overtime protections to millions of white collar workers, saying the U.S. Department of Labor (DOL) improperly used a salary-level test to determine which workers are exempt from overtime compensation.

As you likely will recall, the Obama administration’s “overtime rule” (which we explainedOvertime Business Man Clock in detail here) raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” exemption to just over $47,000 per year.  In granting summary judgment to the Plano Chamber of Commerce and other business groups who had filed a lawsuit challenging the “overtime rule,” U.S. District Judge Amos Mazzant said that the “significant increase” to the overtime threshold amount would essentially render meaningless the duties, functions, or tasks that an employee performs if their salary falls below the new minimum salary level.  Judge Mazzant further stated that “[t]he department has exceeded its authority and gone too far with the final rule,” and that “[t]he department creates a final rule that makes overtime status depend predominately on a minimum salary level, thereby supplanting an analysis of an employee’s job duties. Because the final rule would exclude so many employees who perform exempt duties, the department fails to carry out Congress’s unambiguous intent.”

As we previously informed you here, the “overtime rule” had been on hold by way of an injunction since late November 2016 as a result of a legal challenge brought by states and business groups, and as a result, employers have been waiting for clarity since that time.  Through his decision, Judge Amos Mazzant has now provided employers with much needed clarity.  Based on previous statements made by the current administration’s Labor Secretary, Alex Acosta, it is expected that at some point in the future the DOL will propose a new rule, setting the salary threshold somewhere between the current level of $23,660 and the $47,476 level set by the Obama administration.  However, based on Judge Mazzant’s harsh criticism, as well as the tenor of the Trump administration, it is unlikely that a new rule will be promulgated anytime soon.  So, for now, employers can continue to abide by the traditional overtime threshold that has been in place for more than a decade.

OMB Suspends New EEO-1 Reporting Data Requirement

Employers throughout the nation who have been preparing to comply with the revised Employer Information Report (EEO-1) will be pleased to learn that the Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) has indefinitely suspended the new report’s compliance date.

By way of background, as explained hereEEOC Picture, in February 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a major revision to the EEO-1 Form reporting requirements, requiring all employers with more than 100 employees (and federal contractors with more than 50 employees) to submit compensation data based on certain demographic information such as gender, race, and ethnicity to the EEOC beginning in 2017.  Following that announcement, employers in all industries voiced numerous concerns about those changes, including the increased time and money that would be required to complete the new report, confidentiality issues, data security and privacy issues, the range of false positives that would result from the submission of pay data, and the enforcement actions that would inevitably arise from these false positives.  Although the EEOC thereafter issued a “revised” Final Rule in September 2016, the revised rule changed very little from the original, aside from moving the due date for submission to March 31, 2018.

However, on August 29, 2017, the OIRA stopped the new EEO-1 rule in its tracks, stating in a memorandum to the EEOC that among other things, it is “concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

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California Opportunity to Work Act Spells Trouble for Employers

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California Assembly Bill (AB) 5, the Opportunity to Work Act, was recently approved by the California Assembly Committee on Labor and Employment in April 2017.  The Appropriations Committee postponed a hearing on the bill that was scheduled for May 3, 2017.  Given the strong industry opposition to this bill and its harmful impact on employers, it is likely that the Appropriations Committee is taking a closer look at the bill and the negative Continue reading

Businesses Should Prepare For Predictive Scheduling Laws

Last month, Victoria’s Secret agreed to pay $12 million to settle a class action lawsuit in California brought by hourly employees that were denied pay as a result of the store’s use of on-call shift scheduling.  In that lawsuit, the employees relied on a California law requiring employees, who report for work on a scheduled workday but who either are not needed (and therefore not put to work) or are furnished with less than half their usual or scheduled hours, to receive two to four hours of pay at their regular rate of pay. Work Schedule Calendar

This settlement brings to light the “predictive scheduling” trend that is occurring throughout the nation.  Historically, restaurants and retailers have used on-call scheduling to help control labor costs.  But as workers began claiming that the daily unpredictability of on-call scheduling hindered their ability to earn a living, hold more than one job, arrange reliable child care, and attend classes, this practice began to change.

Now, to combat worker uncertainty, numerous states and municipalities have begun passing these types of laws, referred to as “predictive scheduling,” “fair scheduling,” “secure scheduling,” and “fair workweek.”  For the most part, predictive scheduling laws typically require employers to provide employees (i) with their schedules two to four weeks in advance; and (ii) with predictable pay if changes to work schedules are made within this window.    Most of these laws contain exceptions to these requirements where an employer’s inability or failure to provide an employee with scheduled work results from specific causes beyond its control.

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Restrictive Covenants Enforceability from a Global Perspective 

shutterstock_243668662Recently, I had the opportunity to participate in a discussion with my fellow IR Global members to discuss the use and enforceability of restrictive covenants in employment contracts, and how different countries across the Globe view such covenants.

Every company has information, customer goodwill, and other valuable assets that are considered both integral and invaluable to its success. Limiting the use of this information by employees and protecting goodwill after the term of their employment contract can be vital to the protection of a market position. An accepted method of providing this protection is to include restrictive covenants in employment contracts, which are designed to prevent certain information being used by competitors, while providing for damages should those agreements be breached.

 For companies with operations in multiple locations, understanding this is of critical importance. It is also important to acknowledge that restrictive covenants will only be enforceable if they are deemed to be reasonable in terms of their scope and the fairness of the restrictions they place upon an employee.

In this feature article, we discuss valuable insight into how these protections are applied across a range of jurisdictions, and assess the enforceability of contracts containing restrictive covenants, options in the event of a breach of covenant and best practices to avoid any potential problems before they occur.

Conn Maciel Carey LLP is a proud member of IR Global in the Employment Law Group. IR Global is a multi-disciplinary professional services network that provides advice to companies and individuals across 155+ jurisdictions. Their Virtual Series publications bring together a number of their network’s members to discuss a different practice area-related topic. The participants share their expertise and offer a unique perspective from the jurisdiction they operate in.