Hurricane Headaches: HR Tips for Employers

Hurricane.jpgHurricane Dorian is approaching the Southeastern 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.  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. Continue reading

California Employers Are Not Required To Reimburse Restaurant Workers For The Cost Of Slip-Resistant Shoes Under Labor Code Section 2802

shutterstock_34577875A recent California Court of Appeal decision, Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

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Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards/Employee Safety Complaints

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading

California Employment Law Update for 2019 

By: Andrew J. Sommershutterstock_150165167

In the final days of California’s 2018 legislative session, and the end of his term, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new legislation seeking to bolster the state’s workplace harassment laws in the aftermath of the #MeToo movement.  Conn Maciel Carey LLP provides this summary of key new employment laws impacting California private sector employers.  Unless otherwise indicated, these new laws just took effect on January 1, 2019.

#MeToo Legislation

Expanded Anti-Harassment Training Requirements

Existing law requires that employers with 50 or more employees provide at least two hours of sexual harassment training to all supervisory employees within six months of the individuals becoming supervisors, and at least once every two years thereafter.  Covered employers must provide classroom or other effective interactive training that incorporates the topics of sexual harassment and abusive conduct as well as harassment based on gender identity and expression and sexual orientation.

Senate Bill (SB) 1343 broadly expands the harassment training requirements to small employers and for the first time requires training of non-supervisory employees.

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U.S. Supreme Court to Hear Legal Challenge to Auer Deference Standard

shutterstock_gavelIn 1997, the U.S. Supreme Court decided the case of Auer v. Robbins, establishing the standard for what has become known as Auer deference (or Seminole Rock Deference from Bowles v. Seminole Rock and Sand Co. (1945)).  This decision and the standard it set is significant for employers because it gives substantial latitude to federal agencies, like the Department of Labor, to interpret their own ambiguous standards.  Specifically, in Auer, the Supreme Court held that an Agency’s, in this case the Department of Labor, interpretation of its own standards is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”  In other words, if it’s not clear what is required by the plain language of the standard, the Court will generally defer to the Agency’s own reasonable interpretations of its regulations.

However, the Supreme Court will now have the opportunity to reconsider Auer deference in the case of Kisor v. Wilkie.  On December 10, 2018, the Court agreed to review Question 1 of the petition for certiorari, which specifically asks “[w]hether the Court should overrule Auer and Seminole Rock.”  Continue reading

[Webinar] OSHA & the ADA: How two Labor Laws Can Align & Diverge

On Tuesday, December 4, 2018, at 1 pm EDT, join Jordan B. Schwartz and Lindsay A. Disalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “OSHA & the ADA: How two Labor Laws can Align & Diverge.”Cover slide

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  Although OSHA portrays this policy as straightforward, in practice, it can be difficult to determine when and how to accommodate a disability under the Americans with Disabilities Act (“ADA”), while also protecting the safety of the disabled employee and his or her co-workers.  This assessment can be further complicated when the employer is unaware a disability may cause or contribute to a workplace safety issue.  The importance of understanding the laws at play in this context has increased, and will continue to increase significantly, due to the aging workforce, and the unique challenges these types of workers may face.

The ADA also requires that medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided when recording injuries and illnesses for OSHA Recordkeeping.  A disability may also impact whether and how an injury is recorded.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

During this webinar, participants will learn:

  • Requirements related to ADA disability accommodation, and how to evaluate an accommodation in the context of legitimate safety concerns
  • How to address unsafe conditions or performance related to an employee disability
  • Best practices to foster safety in the context of an aging workforce
  • Injury and illness recordkeeping practices related to employee disabilities

Click here to register for this webinar.

 

 

Fall 2018 Unified Agenda Forecasts Several Significant Employment-Related Regulatory & Deregulatory Actions

By: Mark M. Trapp and Aaron R. Gelb

On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.

Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.

Department of LaborFall 2018 Agenda_DOL_3

Wage and Hour Division

Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the NLRB, which last month issued its own proposed rule re-tightening the standard for joint employment, the DOL announced its intention to “clarify the contours of the joint employment relationship to assist the regulated community in complying with the Fair Labor Standards Act.” A notice of proposed rulemaking is scheduled to issue as early as December 2018 and will hopefully modernize the method for determining joint employment in today’s workplace.

White Collar Overtime Exemption. The DOL has listed as a priority its long-awaited rule to update the salary level for the exemption of executive, administrative and professional employees under the FLSA (the so-called white-collar exemption). It is expected to raise the threshold exemption for such employees from the historical level under the FLSA ($23,660 annually), but not as high as the former rule adopted by the Obama administration, which would have more than doubled the minimum salary level but was enjoined by a court. The timeframe is somewhat unclear and has been pushed back twice already. The Agenda states it is now expected in March 2019.

Regular Rate. Under the FLSA, employers must pay covered employees time and a half their regular rate of pay for hours worked in excess of forty hours in a workweek. The DOL has stated its intent to amend its regulations “to clarify, update and define the regular rate requirements under the FLSA.” The new proposal is expected in December 2018.

Tip Regulations. In March of 2018, the omnibus budget bill amended the FLSA and addressed rules affecting tipped employees and so-called “tip pooling.” The DOL is expected to issue a proposed rule this month to clarify and address the impact of the 2018 FLSA amendments.

Occupational Safety and Health Administration

Tracking of Workplace Injuries and Illnesses. OSHA proposed to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). OSHA also proposed to add the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS. OSHA is reviewing comments and is expected to publish a final rule in June 2019. Many entities submitted comments regarding the anti-retaliation provisions of the rule, but it is not known whether OSHA will make further changes to that aspect of the rule. Meanwhile, OSHA issued a memorandum on October 11, 2018 with the stated intent of clarifying that the rule does not prohibit workplace safety incentive programs or post-incident drug testing. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health. This rulemaking has been moved from the Proposed Rule Stage to the Final Rule Stage. Continue reading