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.jpgHurricane Florence is approaching 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.  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.

 

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.

HR Issues for Start-Ups and Small Businesses

On Wednesday, February 15, 2017, Kara Maciel, Chair of the Labor & Employment Practice at Conn Maciel Carey, will be presenting a free webinar on issues facing small business.

While large companies typically have human resources departments or in-house counsel to advise on myriad and complex employment laws, start-ups and small businesses are often operating in the dark regarding these key issues.  However, as these companies grow and begin to hire more employees, compliance with local, state, and federal employment laws are paramount for survival.

This webinar will provide an overview of the most important employment laws, policies and practices that are of particular concern for small businesses and start-ups so that they can comply with proper pay practices and wage and hour law, become aware of applicable anti-discrimination laws, and learn proper procedures for hiring and firing, including offer letters, employment agreements and separation agreements.

The webinar begins at 1:00 pm ET, and is sponsored by Smith College.  You can register for the webinar here.  If you are unable to attend the February webinar, Conn Maciel Carey will present another opportunity on April 19, 2017 as part of its 2017 Labor & Employment Webinar Series, and you can register here.

 

Join us for a Briefing on the Impact of the Presidential Election on Employment Law and OSHA in 2017

5b0ac5ef-4c7d-4ae7-9d4a-2a1cffe3a587Newly elected President Trump will have a significant impact on shaping the executive agencies that impact employers, unions and the workplace in general, not to mention the fact that he may hand pick up to four new Supreme Court Justices. There is no doubt that legislation, regulation, and court cases during the Trump Administration will have lasting effects on employers in 2017 and beyond.

On February 20, 2017, Conn Maciel Carey’s Labor & Employment and OSHA attorneys will host an in-person briefing in its Washington, DC office to discuss the practical impact of the Trump Administration on the legal landscape in key areas for the workplace, including:

  • The effort to repeal the Affordable Care Act;
  • The rollback of regulation and former President Obama’s Executive Orders, including the Department of Labor’s overtime rule, the persuader rule, and OSHA’s anti-retaliation rule;
  • The National Labor Relations Board under Philip Miscimarra’s Chairmanship;
  • Anticipated court decisions from the Supreme Court, including whether employers can include class action waivers in arbitration agreements;
  • OSHA enforcement, regulatory and policy developments to expect during the Trump Administration’s inaugural year.

Networking will start at 8:30 am, and the briefing will last from 9:00 am – 10:30 at 5335 Wisconsin Avenue, NW, Suite 660.  To register for this complimentary briefing, please contact info@connmaciel.com.

We hope to see you there!

Announcing our 2017 Labor & Employment Webinar Series

5b0ac5ef-4c7d-4ae7-9d4a-2a1cffe3a587During the last few years, employers have become accustomed to increased scrutiny and enforcement from various federal agencies, including the Department of Labor, Department of Justice and the Equal Employment Opportunity Commission. While it is anyone’s guess as to how proactive these agencies will be during the Trump administration, the fact remains that various complex local, state, and federal laws currently are in place designed to protect employees under a wide variety of circumstances. With employers in all industries scrambling to prepare for a changing workplace in the coming months/years, it is as important as ever to be prepared for what’s ahead from an employment law perspective.

Conn Maciel Carey’s 2017 Labor & Employment Webinar Series, hosted by the firm’s Labor & Employment Practice Group, is designed to give you the practical solutions to ensure you are running your business in a way that does not run afoul of the most important labor and employment laws facing our workforce today.

Click here for the full schedule and program descriptions. To register for individual webinars, click on the program titles below.

Register me for the entire
2017 Labor & Employment Webinar series

March 22nd
The DOL’s Major 2016 Regulatory Initiatives and how (and/or whether) those will be implemented in the coming year

April 19th
Key Employment Law Issues for Start-ups and other Small Business, including relevant California laws

May 24th
Recurring Marijuana Issues in the Workplace

June 8th
The Changing Landscape of Anti-Discrimination Laws and Workplace Policies in Light of the NLRB

July 11th
Multi- and Joint-Employers, Contractors and Temps

September 19th
The Impact of Workplace Violence as it relates to Employment Laws and OSHA

October 17th
Addressing Employee Complaints: Whistleblower/Retaliation Claims and OSHA Notices of Alleged Hazards

November 15th
Employment Agreements,
Restrictive Covenants and Trade Secrets

Paid Sick & Family Leave Passes D.C. City Council

Capitol BuildingFor over a year, the D.C. City Council has considered a bill that would have provided employees in the nation’s capital paid family and sick leave.  Now, after extended debate and comment from the public and business community, on December 20, 2016, the D.C. City Council passed the bill, known as the Universal Paid Leave Amendment Act of 2016 (“the Act”), with some modifications.

The new law gives eight (8) weeks of paid leave to new parents, and six (6) weeks for those taking care of sick family members.  Although the bill offers the most generous paid leave in the U.S.  for new parents and employees who are taking care of sick family members, the law only offers two (2) weeks of paid leave for personal injuries or illnesses, which is less than other city and state programs around the country.  The program will be administered by a social insurance program controlled by the city and funded by a .62 percent increase to employer payroll taxes.

Mayor Muriel Bowser, a staunch opponent of the legislation, has vowed that she will not add her name to the legislation.  However, the bill passed by a 9-4 margin – the minimum number of required votes to override a veto by Mayor Bowser.  The bill may therefore likely go into law without her signature.

Employers should pay careful attention to this bill and consider changing employer provided paid leave policies, especially since the Mayor will begin collecting the .62 percent payroll tax from all covered employers on or before July 1, 2019.  Payment of paid leave benefits to eligible employees will commence on July 1, 2020.

The following highlights what D.C. employers need to know about this groundbreaking law and how it will affect them.

  1. Who does the law apply to?

The Act requires all covered employers to contribute to the Universal Paid Leave Implementation Fund (“the Fund”).  A covered employer is defined as any “individual, partnership, general contractor, subcontractor, association, corporation, business trust, or any group of persons who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and is required to pay unemployment insurance on behalf of its employees by section 3 of the District of Columbia Unemployment Compensation Act” and a “self-employed individual who has opted into the paid leave program established pursuant to [the] Act.”  The law permits a “covered employee” to collect paid leave under the Act.  A covered employee is defined as “any employee who spends more than 50% of his or her work time in the District of Columbia for a covered employer.”  Therefore, there is no “small business exception” and employers that employ any individuals in the District of Columbia are subject to the Act’s requirements.

To be eligible to receive paid leave under the Act, an “eligible individual” must be a covered employee during some or all the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken, or a self-employed individual who earned self-employment income for work performed more than 50% of the time in the District of Columbia during some of all of the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken and has opted into the paid leave program established pursuant to the Act.

Thus, an employee is eligible for paid leave as soon as he or she is hired, regardless of the number of hours worked for the employer, subject to a one week waiting period.

  1. How long can employees receive paid leave benefits?

Upon the occurrence of a qualifying family leave event (the diagnosis or occurrence of a serious health condition of a family member of an eligible individual), qualifying medical leave event (the diagnosis or occurrence of a serious health condition of an eligible individual), or qualifying parental leave event (the birth of an child; the placement of a child with an eligible individual for adoption or foster care; or the placement of a child with an eligible individual for whom the individual legally assumes and discharges parental responsibility), and after a one week waiting period during which no benefits are payable, an eligible individual is entitled to receive payment of his or her paid leave benefits.

An eligible individual can submit a claim for payment of his or her paid leave benefits for a period during which he or she does not perform his or her regularly and customary work following the occurrence of a qualifying event, as provided below:

  1. Family Leave: eligible individuals may receive up to a maximum of 6 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying family leave event.
  2. Medical Leave: eligible individuals may receive up to a maximum of 2 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying medical leave event.
  3. Parental Leave: eligible individuals may receive up to a maximum of 8 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying parental leave event.
  4. Intermittent Leave: eligible individuals may receive payment for his or her paid leave benefits for intermittent leave, provided the total amount of intermittent leave shall not exceed 6 workweeks in a 52-workweek period for a qualifying family leave event, 2 workweeks in a 52-workweek period for a qualifying medical leave event, or 8 workweeks in a 52-workweek period for a qualifying parental leave event.

An eligible individual can receive benefits under any one or a combination of paid leave provided under the Act.  However, eligible employees are only entitled to receive payment for a maximum of 8 workweeks in a 52-workweek period, regardless of the number of qualifying leave events that occurred during that period.

For example, if an employee receives parental leave following the birth of twins, the employee is only entitled to 8 weeks of paid leave, not 16.  Also, if an employee receives 4 weeks of paid medical leave to care for a sick family member, and then takes parental leave a few months later, the employee is only entitled to an additional 4 weeks of paid leave within the 52-workweek period.

  1. What benefits do employees receive during paid leave?

An eligible individual who earns an average weekly wage at a rate that, on an annualized basis, is equal to or less than 150 percent of the District’s minimum wage, currently set at $11.50, are entitled to payment of benefits at a rate that equals 90% of that eligible individual’s average weekly wage rate (based on a 40-hour workweek). For those eligible individuals who earn an average weekly wage at rate that, on an annualized basis, is greater than 150% of the District’s minimum wage are entitled to paid leave benefits at a rate that equals:

  1. 90 percent of the 150 percent of the District’s minimum wage; plus
  2. 50 percent of the amount by which the eligible individual’s average weekly rate exceeds 150% of the minimum wage.

However, prior to October 1, 2021, the maximum benefit amount that any eligible individual may receive is $1,000 per week.  On October 1, 2021, and October 1 of each successive year, the maximum weekly benefit will increase in proportion to the annual average increase in the Consumer Price Index for All Urban Consumers, Washington-Baltimore metropolitan area, as published by the Bureau of Labor Statistics.

  1. What obligations do employers have under the law?

Covered employers are required to contribute 0.62 percent of the wages of each of its covered employees to the Universal Paid Leave Implementation Fund in a manner prescribed by the Mayor.

The Mayor has 180 days of the effective date of the Act to provide public notice to covered employers regarding the way contributions to the Fund shall be collected.  The Mayor must begin collecting contributions to the Fund from covered employers and self-employed individuals who opted into the paid leave program by July 1, 2019.

An employer that fails to contribute the amount required under the Act is subject to the same notice requirements, procedures, interest, penalties, and remedies set forth in section 4 of the District of Columbia Unemployment Compensation Act.

Employers are required to provide covered employees a notice, as prescribed by the Mayor, at the time of hiring and annually thereafter, and at the time the covered employer is aware that the leave is needed, that explains:

  1. the employees’ right to paid leave benefits under the Act and the terms under which such leave may be used;
  2. that retaliation by the covered employer against the covered employee for requesting, applying for, or using paid leave benefits is prohibited;
  3. that an employee who works for a covered employer with under 20 employees shall not be entitled to job protection if he or she decides to take paid leave pursuant to the Act; and
  4. that the covered employee has a right to file a complaint and the complaint procedures established by the Mayor for filing a complaint.

An employer that violates the notice requirement may be subject to a $100 civil penalty for each covered employee to whom individual notice is not delivered and $100 for each day that the covered employer fails to post notice in a conspicuous place.

  1. How is the law administered?

Under the Act, the Mayor is responsible for establishing procedures and forms for filing claims for benefits and specify what supporting documentation is required to support a claim for benefits – none of which have been contemplated.  Nonetheless, if an individual is deemed eligible to receive paid leave benefits, the Mayor shall make the first payment to the eligible individual within 10 business days of the determination or eligibility and subsequent payments are made biweekly thereafter.

Covered employers will receive notice that an employee has filed for paid leave benefits under the Act within 3 business days of the claim being filed.  However, employees are still required to give their employer notice of their leave under the Act, to the extent practicable.  If leave is foreseeable, the written notice shall be provided at least 10 days, or as early as possible, in advance of the paid leave.  If leave is unforeseeable, a notification, either oral or written, shall be provided prior to the start of the work shift for which paid leave is being used.  In the case of an emergency, the eligible individual, or another individual on behalf of the eligible individual, shall notify the employer, either orally or in writing, within 48 hours of the emergency occurring.

  1. How does the law interact with DCFMLA and existing employer paid leave policies?

The DC Family Medical Leave Act (DCFMLA), which provides for 16 weeks of unpaid leave, remains unchanged under the Act.  Therefore, employees are still eligible to take unpaid leave under DCFMLA.  When paid leave taken pursuant to the Act also qualifies for leave under the DCFMLA, the paid leave taken under the Act will run concurrently with, not in addition to, leave taken under other acts such as DCFMLA.  Nothing in the act provides job protection to any eligible individual beyond that to which an individual is entitled to under DCFMLA.

Eligible employers are not prohibited from providing individuals with leave benefits in addition to those provided under the Act but employers are still required to provide the paid leave benefits under the Act.  The provision of supplemental or greater paid leave benefits does not exempt the covered employer from providing or prevent an eligible employee from receiving benefits under the Act.

Employers should consider modifying any existing paid leave policies.  Because a covered employer is required to participate in the Fund, regardless of existing policies, employers may want to amend their paid leave policies to offer additional or supplemental paid leave benefits.  However, the parameters of the additional or supplemental paid leave should be clearly laid out to prevent any confusion about employee’s double dipping.  Employers may provide additional benefits above the maximum amount received through the Fund or provide additional paid leave beyond the eight, six, or two weeks provided under the Act.

  1. Is there an exemption or exception for small businesses?

No, there is not an exemption or exception for small businesses.  Council members Mary Cheh and Jack Evans introduce an amendment to the bill that the council did not pass, which would fund paid leave through an individual-employer mandate, in which employers pay for parental leave when employees need it, instead of the current plan to raise taxes and provide the benefit through a public-insurance program. The amendment would have also given a tax credit – not an exemption – to small businesses to help them cover their employees’ wages while they are gone.  However, under the Act that was passed, employers of all sizes must contribute to the Fund.

In sum, there remain many questions as to how the Act and the Fund will be administered, all of which should be answered after the Act becomes effective and the Mayor’s office issues forms and notices.  We will continue to keep you apprised of any developments under the Act, and what employers should do to ensure compliance.