Every employer has faced this type of request … Joe employee needs to take a leave of absence to care for his ailing mother. Joe is an FMLA-eligible employee (he’s worked for the company for more than 12 months and for at least 1,250 hours in the past 12 months). Joe works in an office with more than 50 employees. Finally, the reason for the leave is FMLA-qualifying (his mother has a serious health condition).
On March 28, 2019, the U.S. Department of Labor (DOL) released a proposed rule that, if adopted, will clarify and update the “regular rate of pay” requirements in the Fair Labor Standards Act.
As a reminder, under the FLSA, employers are required to pay non-exempt employees overtime at 1.5 times their “regular rate of pay” for all hours worked over 40 in a workweek. The regular rate of pay is all compensation from the employer that is not specifically excluded in section 7(e) of the FLSA. Some types of pay that are excluded from the regular rate of pay calculation include:
- Discretionary bonuses,
- vacation, sick or holiday pay,
- the cost of health insurance,
- employer contributions to retirement accounts,
- reimbursements for business expenses.
The New York City Commission on Human Rights (NYCCHR) has released their model policies for the New York City lactation room law, which went into effect on March 18, 2019. Local Law 185 and Local Law 186 , which passed in 2018 require:
- Employers to provide employees with lactation accommodations,
- Including a lactation room where employees can pump breast milk,
- A reasonable time in which to pump breast milk.
- Employers to have a written lactation policy that meet specific requirements under the law and employers must provide the policy to all new employees.
All employees must be trained.
The National Labor Relations Board (NLRB) historically has had broad reach when scrutinizing an employer’s company policies; however, two recent memorandums set a new standard in determining whether company policies violate the National Labor Relations Act, which prohibits employers from “restraining, coercing, or interfering with” employees who are attempting to improve working conditions.
Over the last decade, facially neutral policies, including Social Media, Cell Phone and Pay policies have been deemed illegal, if they are overly restrictive and unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).
The Philadelphia City Council recently passed the Fair Workweek Employment Standards Ordinance. Under this new law, which goes into effect on January 1, 2020, bring predictable scheduling requirements to large retail, hospitality and food service employers in Philadelphia.
Who is considered a large retail, hospitality and food service employer?
For purposes of the new law, a “large employer” is any retail, hospitality and food service employer who employs 250+ employees (full-time, part-time, or temporary) and has 30 or more locations worldwide.
Most importantly, the law considers franchises with separate ownership, but part of the same chain of business (e.g. all McDonalds franchises in Philadelphia) as the same “large employer” for purposes of this law. This means that many (if not all) franchise businesses in Philadelphia will be subject to this new law. Continue reading NEW LAW: Philadelphia Passes Predictable Scheduling Law
The Washington Department of Labor and Industries (L&I) clarified existing policies on Tips, Gratuities, and Service Charges. Here are 5 points to review in your policies that apply to Tipped Employees:
#1. All tips belong to the employee.
- Existing policy: All tips must go to the tipped employee and employers cannot take a “tip credit” toward the employee’s minimum wage (tip pooling is permitted).
- Clarification: The employer may have a policy prohibiting the employee from accepting tips or gratuities, but if a customer leaves a tip “in defiance of a policy” the employee must be permitted to keep the tip.
#2. Exempt individuals may not be part of a tip pool.
- Existing policy: Tip pooling can be mandatory however, per Federal and State guidelines, Managers and Supervisors may not be included in a tip pool.
- Clarification: The interpretation of “Manager and Supervisor” now includes any individual that is “Exempt” under RCW 49.46.010(3)(c).
- Note: Exempt employees can accept tips, but only for services that they “directly provide” to customers and they may not participate in a tip pool.
The Oregon Supreme Court recently held that the “social host” exemption that protects servers and bartenders from claims against them does not protect employers from other possible negligent acts related to events where alcohol is present.
In the case of Schutz v. La Costita III, Inc., 364 Or. 536 (March 14, 2019), the plaintiff filed claims against the restaurant that served her drinks, the supervisor who encouraged her to drink, and against her employer who she claimed did not adequately train the supervisor on appropriate team building events.
The Plaintiff, Ashley Schultz, claims that her supervisor regularly pressured workers to attend after work events where alcohol was involved. Fearing that she would not advance in the company if she did not participate in one of these events, Schultz finally decided that she would attend after numerous requests. During the event, the supervisor encouraged more drinking and was critical of employees who did not drink enough. Ashley wanted to please her supervisor, but in doing so became intoxicated. When she left the restaurant to return home, she got into a car accident which caused her serious injuries. Continue reading NEW CASE: New Risk for Oregon Employers Encouraging Alcohol at After Work Gatherings
Pittsburgh employers should be aware that the City Council just passed a new ordinance expanding protections for pregnant employees. The ordinance will impact private employers with requirements similar to Federal Pregnancy Discrimination Act, Americans with Disabilities act and other related EEOC guidance.
In an unprecedented move, Pittsburgh’s ordinance is one of the first cities to extend protections for partners of pregnant women. Partner is defined broadly to mean a person of any gender with whom a pregnant woman has a relationship of mutual emotional and/or physical support (and does not require a marital or domestic relationship).
The new ordinance amends section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code, providing further protections by making pregnancy its own protected class. Additionally, it extends the laws anti-discrimination provisions to partners of pregnant employees. Continue reading NEW LAW: Pregnancy Accommodation Now Required For Pittsburgh Employees And Partners
It’s that time of the year again …
The Federal Civil Penalties Inflation Adjustment Act of 1990 was amended and is required to annually adjust the civil monetary penalty levels due to inflation ideally no later than January 15 of each year. However due to funding issues the final 2019 ruling was delayed just a bit this year.
But don’t worry, the Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019 regarding the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA) and for Occupation Safety and Health Association (OSHA) is now available.
The DOL has established that employers who repeatedly or willfully violate federal minimum wage or overtime requirements under the FLSA will receive a maximum penalty of $2,014; an increase from $1,964. Continue reading NEW LAW: US DOL Increases the Penalties for Violations of Several Laws