Employer Law Report

Paying workers after inclement weather closes businesses

In the wake of Hurricane Irma, many employers have questioned their obligation to pay employees while their businesses have been closed. The answer will be different for employees who are exempt and non-exempt under the federal Fair Labor Standards Act (FLSA).

Under the FLSA, employees who are exempt from overtime requirements must receive their full salary for any week in which the employees perform work, regardless of the number of days or number of hours of work performed in that week. Thus, if an exempt employee only works one day during the week, he or she is still entitled to his or her full salary. When an office is closed for less than a week due to inclement weather, the exempt employee is entitled to his or her full salary, even if the employee does not have any available paid time off.

However, nonexempt employees must be paid according to the number of hours worked during any particular workweek and will receive overtime for any hours worked above 40 during a week. If an office is closed because of inclement weather, the FLSA does not require employers to compensate nonexempt employees who are not performing work during the closure. Any paid time off used by nonexempt employees is not working time and will not count toward hours worked for purposes of calculating overtime. Nonexempt employees must perform more than 40 hours in a workweek to be paid overtime.

In addition to federal law requirements, employers should review any inclement weather or other policies to see if they afford employees greater rights than provided under law. Employers should also check their policies to ensure they are consistent with or more generous than federal and/or state law. If you have employees outside of Florida who are affected by business closings due to weather, check your state law for different or additional obligations.

President Trump nominates Peter Robb to serve as general counsel to the National Labor Relations Board

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Last week, President Trump nominated Peter Robb, a management-side labor attorney, to serve as general counsel to the National Labor Relations Board (NLRB). As the top lawyer for the NLRB, the general counsel has a great many responsibilities, which include giving advice to the regional offices of the NLRB concerning enforcement issues. The advice is often communicated in advice memoranda. These advice memos are critical because they advise the regional offices on how to interpret and to enforce labor law. It is the regional offices that process unfair labor practice charges and union representation petitions. As a result, the office of the general counsel can have a significant influence on what employers can expect to face in NLRB enforcement proceedings.

If Robb is confirmed by the Senate, which is likely, he will take over when current General Counsel Richard Griffin’s four-year term expires on Oct. 31, 2017. Based on his professional background and experience, there is reason to expect that Robb will take a more employer-friendly position on many labor law issues than his predecessors did during the Obama administration. For example, Robb has been critical of the NLRB’s efforts to shorten the timeframe in which an employer can react to a union election petition. Continue Reading

Workers’ compensation law changes

Recently, Gov. Kasich signed into law the workers’ compensation budget. In addition to funding the Ohio Bureau of Workers’ Compensation (BWC), the bill enacted a number of substantive changes to the law. These changes are effective Sept. 29, 2017. Below are some of the significant amendments impacting Ohio employers:

  • Decreases statute of limitations: For claims with dates of injuries on or after Sept. 29, 2017, injured workers must file a claim application within one year of the date of injury. This is a reduction from the current two year time limit.
  • Extends deadline to file court appeal if settling claim: The new law extends the time to appeal a final ICO order to the court of common pleas from 60 days to 150 days if the parties file a “notice of intent to settle” the claim within 30 days of receipt of the appealable order.
  • Prohibits payment of compensation to incarcerated dependents: Previously, dependents were eligible to receive benefits even if incarcerated. Further, this law applies to incarcerations, regardless of whether in jail or prison.
  • Permits the BWC to waive 90 day examinations: For state-funded employers, typically the BWC schedules an examination to evaluate an injured worker’s extent of disability after 90 days of being off work. Now the BWC can waive that examination unless the employer objects.
  • Increases amounts included in handicap reimbursements: Settlement amounts are treated as a reducible cost for handicap reimbursements.
  • Dismisses PPD applications: The BWC may now dismiss C-92 applications if an injured worker fails to attend a PPD examination. Previously these claims were suspended, thereby tolling the statute of limitations.
  • Raises the maximum attorney fees for a successful court appeal to $5,000.

Most of these changes impact claims with dates of injuries occurring on or after Sept. 29, 2017. Employers should double check to determine whether rules governed by these new amendments apply or whether the former rules apply.

Texas district court strikes down Obama DOL’s proposed overtime rule

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Last week, a federal judge in Texas struck down a proposed Obama-era rule that would have expanded the number of workers who qualify for overtime pay under the Fair Labor Standards Act (FLSA).

The proposed rule

In 2016, the Obama administration’s Department of Labor (DOL) planned to implement a new rule that would have more than doubled the minimum salary threshold for “exempt” status under the FLSA from $23,660 to $47,476 per year. Under the DOL’s proposed rule, an employee who made an annual salary below $47,476 would have been entitled to overtime pay for all hours worked beyond 40 a week. We last reported on the proposed salary increase in November of 2016, when federal court Judge Amos Mazzant of the Eastern District of Texas issued a nationwide preliminary injunction against the DOL’s rule. Our blog post outlines the Texas court’s holding and rationale.

What happened this week?

On Aug. 31, Judge Mazzant issued another decision, striking down the Obama administration’s proposed salary threshold rule. As a result, the minimum salary for exempt status under the FLSA will remain, for the time being at least, at $23,600.

Judge Mazzant held that the DOL exceeded its authority by issuing the proposed rule because the department focused too heavily on employees’ salary-levels, rather than their job duties, to determine if they were exempt from overtime under the FLSA. Judge Mazzant struck down the rule, holding that because the DOL’s proposed rule would have doubled the annual salary threshold from $23,660 to $47,476, it would have made salary-level the predominant factor in determining who is exempt from overtime under the FLSA. It should be noted, however, that Judge Mazzant did not rule on the general lawfulness of a salary-level test; he only evaluated the salary-level test the DOL proposed in this instance. Continue Reading

Employer alert: Revised I-9 form required beginning Sept. 18, 2017

United States Citizenship and Immigration Services (USCIS) is again releasing a new and updated version of Form I-9, the Employment Eligibility Verification document. Since November 1986, all U.S. employers have been required to complete and retain the I-9 for new employees. The most recent version of the form went into effect on Jan. 22, 2017, but, for some unknown reason, USCIS is now issuing another version. This new version will be mandatory as of Sept. 18, 2017. The easiest way to identify the new form is by the date (07/17/17) noted in the bottom left corner; the prior version was dated 11/14/2016.

A couple of points to bear in mind:

  1. The new I-9 must be used for any new employees hired on or after Sept. 18, 2017. There is no need to complete the new form for any current employees, and employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9.
  2. The new form has the same expiration date as the prior version—08/31/2019—so employers should be careful to use the proper version of the form with 07/17/17 noted in the bottom left corner.

Continue Reading

Courts in Massachusetts and Rhode Island permit medical marijuana users to pursue disability discrimination claims

Recent decisions from the Massachusetts Supreme Judicial Court and a Rhode Island Superior Court have held that a discharged employee and a rejected applicant, both of whom tested positive for marijuana, may pursue disability discrimination claims under state law. These are among the first decisions issued that address whether employers have a state law obligation to reasonably accommodate the medical marijuana use of their disabled employees and applicants.

Because marijuana use – whether for medicinal or recreational purposes – remains unlawful under federal law, employers have no obligation under the Americans with Disabilities Act to reasonably accommodate its use by disabled employees or applicants. But what about in states, including Ohio, where medicinal marijuana use is legal under certain circumstances? Is there an obligation to reasonably accommodate marijuana use under state disability discrimination law? Is an employer that takes an adverse action against an applicant or employee who is a medical marijuana user engaging in disability discrimination in violation of state law? It appears that the answer to these questions, at least in Massachusetts and Rhode Island, is yes. For the reasons discussed below, Ohio may be different. Continue Reading

OSHA proposes delay to electronic injury reporting requirement and no mechanism in place on OSHA’s website for electronic reporting compliance

The compliance deadline for Occupational Safety and Health Administration’s (OSHA) electronic injury and illness reporting rule has come and gone, and there is no mechanism in place for employers to electronically report work-related injuries and illnesses. On June 27, 2017, OSHA proposed moving the July 1, 2017 mandatory compliance deadline to Dec. 1, 2017. The window for public comment on the proposed delay closed on July 13th. At present, the “proposed delay” remains a “proposal,” but, even so, OSHA does not yet have the mechanism in place for compliance with the electronic reporting requirement.

For many years, OSHA required employers with 10 or more employees to keep a log of employees’ work-related injuries and illnesses, but most employers were not required to routinely submit them to OSHA. Only certain high-risk industries, such as construction, manufacturing and agriculture, were required to submit their records to OSHA by mail. In 2013, OSHA decided to move to an electronic reporting system and increase the number of employers required to submit their illness and injury logs to OSHA. Had the rule taken effect, establishments with 250 or more employees would have been required to submit their 2016 Form 300A by July 1, 2017. These same employers would have been required to submit all of their 2017 forms (300A, 300 and 301) by July 1, 2018. Smaller employers with 20-249 employees in moderate-risk industries, such as waste collection, residential care facilities and retail sales, would have been required to submit only the 300A on an annual basis beginning on July 1, 2017.

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Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the en banc decision, the full 8th Circuit refused to enforce the NLRB’s unfair labor practice finding and held that an employer may fire an employee for “making a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The court emphasized that “allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business” and that the fired MikLin employees made a conscious decision maximize this effect by choosing to launch their attack during flu season. The court added:

“By targeting the food product itself, employees disparaged MikLin in a manner likely to outlive, and also unnecessary to aid, the labor dispute. Even if MikLin granted paid sick leave, the image of contaminated sandwiches made by employees who chose to work while sick was not one that would easily dissipate.”

Continue Reading

The return of Department of Labor Opinion Letters

On June 27, 2017 the U.S. Department of Labor (DOL) announced it would reinstate the practice of issuing Opinion Letters. The Wage and Hour Division will once again use Opinion Letters to provide guidance to employers and employees on various topics.

Under the Obama Administration, the DOL stopped issuing Opinion Letters in favor of the more broad “Administrator Interpretations.” Between 2010 and 2016, the DOL only published 11 Administrator Interpretations. Two of these 11 Interpretations were recently rescinded, as we previously reported. Continue Reading

Florida federal judge holds that supermarket chain’s website must be accessible to disabled

In the first trial on the merits involving website accessibility, a federal judge in Florida ruled on June 13, 2017, after a two-day bench trial, that supermarket chain Winn-Dixie violated the Americans with Disabilities Act (ADA) by failing to make its website accessible. Juan Carlos Gil, a blind Florida man who attempted to use Winn-Dixie’s website to locate Winn-Dixie store locations, fill and refill prescriptions, and obtain store coupons, sued Winn-Dixie alleging that he was unable to access these services because the website was not integrated with his screen reader technology. Screen reader technologies such as JAWS read the content of websites to blind users and assist them through voice prompts in navigating websites.

ADA Title III background

 ADA Title III requires that places of public accommodation provide “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Twelve categories of public accommodations are established in the ADA, 42 USC § 12181(7), and include retail stores, restaurants, grocery stores, hotels, among other categories of businesses open to and serving the public. Continue Reading

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