Category Archives: Uncategorized

Massachusetts Court Has Determined that Employees Exempt from Federal Overtime Laws May Not Always Be Exempt from State Law

Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act (FLSA) addresses agriculture employers that encompasses farming and all divisions performed by a farmer along with the duties on a farm or in conjunction to operating a farm.

Federal law states

Virtually all employees engaged in agriculture are covered by the Act in that they produce goods for interstate commerce. There are, however, some exemptions which exempt certain employees from the minimum wage provisions, the overtime pay provisions, or both.

Continue reading Massachusetts Court Has Determined that Employees Exempt from Federal Overtime Laws May Not Always Be Exempt from State Law

NOW AVAILABLE: NY City Online Anti-Sexual Harassment Training Program

Attention NY City employers, as of April 1, 2019, all NYC employers with at least 15 employees are required to conduct annual, interactive sexual harassment training.  This training must be conducted once per calendar year.

To make complying with this new requirement easier for NYC employers, the NYC Commission on Human Rights recently published its interactive, an online anti-sexual harassment training program that meets the NYC training requirements AND the NY State training requirements.

NYC employers are able to develop their own training or hire an outside party to provide the training, but will then need to demonstrate that their training program meets the requirements of NYC Local Law 96 (2018) as well as those under NY State law.  Therefore, in order to ensure compliance, it is recommended that NYC employers use the training program provided by the NYCCHR.

Remember, anti-sexual harassment training that meets NYC’s requirements must be provided to:

  • any NYC employee who works more than 80 hours in a calendar year and for at least 90 days,
    • including independent contractors in NYC who have performed work for the company for more than 90 days and more than 80 hours in the calendar year
  • any employees who work a portion of their time in NYC or interact with employees in NYC, even if they are based elsewhere.

In addition, NYC law requires employers keep a record of all trainings, including a signed employee acknowledgment for at least three years.

Finally, the first round of training must be completed no later than December 31, 2019!

For more information regarding NYC anti-sexual harassment training requirements, FAQs may be found here.

NEW GUIDANCE From the Massachusetts Department of Family and Medical Leave

As we previously reported (in “NEW LAW – Paid Family and Medical Leave Coming to Massachusetts“), starting in 2021,  employees will be able to begin collecting paid family and medical leave benefits.

The Massachusetts Department of Family and Medical Leave recently published its draft regulations relating to the  Massachusetts Paid Family and Medical Leave Law.  While these proposed regulations largely mirror the existing law, they offer additional guidance on the following topics: Continue reading NEW GUIDANCE From the Massachusetts Department of Family and Medical Leave

NEW LAW: Maryland Minimum Wage To Increase To $15 By 2025

On March 28, 2019, the Maryland General Assembly voted to override the governor’s veto of a minimum wage bill (SB 280).  In taking this action, the Maryland legislature has enacted a new law increasing Maryland’s minimum wage from $10.10 to $15 an hour by 2025.

Under this new law, minimum wage in Maryland will start to increase in 2020 in accordance with the following schedule:

For large employers (employers with 15 or more employees)

  • January 1, 2020 — $11.00 per hour
  • January 1, 2021 — $11.75 per hour
  • January 1, 2022 — $12.50 per hour
  • January 1, 2023 — $13.25 per hour
  • January 1, 2024 — $14.00 per hour
  • January 1, 2025 — $15.00 per hour

For small employers (employers with 14 or fewer employees)

  • January 1, 2020 — $11.00 per hour
  • January 1, 2021 — $11.60 per hour
  • January 1, 2022 — $12.20 per hour
  • January 1, 2023 — $12.80 per hour
  • January 1, 2024 — $13.40 per hour
  • January 1, 2025 — $14.00 per hour
  • January 1, 2026 — $14.60 per hour
  • July 1, 2026 — $15.00 per hour

The new law takes effect on June 1, 2019, with the first increase occurring on January 1, 2020.  It is recommended that all Maryland employers prepare for these increases.

Intermittent FMLA For Chronic Health Conditions? Doctor’s Notes May Be Required

Generally, when an employee takes a medical leave of absence, treatment by a medical provider is often assumed.  The frequency of the employee’s doctor’s visits is rarely scrutinized.

According to a recent Pennsylvania federal court decision in Watkins v. Blind and Vision Rehabilitation Services of Pittsburgh that is not always a wise approach. When evaluating FMLA entitlements, the importance of verifying the employee’s continuing medical treatment cannot be ignored.

Watkins who worked for Blind and Vision Rehabilitation Services (BVRS) as an employment specialist was a military veteran who suffers from PTSD.  Watkins was injured in July of 2015 when someone fired multiple bullets at the car she was driving.  Along with damages to her car, including tires shot out out and a shattered window, a bullet just missed her head, lodging itself in the driver’s side headrest.  The random act of violence triggered Watkins PTSD symptoms. After the incident, she had difficulty functioning, experienced, anxiety, irritability, and stress.  Additionally, Watkins was fearful of leaving her home and suffered from a loss of concentration.

In June of 2016 Watkins began experiencing performance issues, including submitting inaccurate client information for financial reimbursements.  She was issued a notice of unsatisfactory work performance.  Watkins was told to submit the necessary information to remedy the situation.  She did not, was further counseled and performance issues continued.  On July 5, Watkins did not report to work to complete backlogged paperwork saying she was having a mental health emergency.  On July 6, BVRS received a letter from Watkins medical provider stating she was being treated for PTSD and given a return to work date as July 7.  Watkins did not return to work as per her medical provider’s letter and instead had only sporadic attendance thereafter.  Eventually, Watkins was terminated for job abandonment.

Watkins sued BVRS alleging they had failed to provide her with FMLA benefits to which she was entitled.  BVRS asked the court to dismiss the case on summary judgment, in part because Watkins could not produce evidence that she had a serious health condition, (being a requirement) that would entitle her to the protections of FMLA.  Because Watkins was never admitted to a hospital or had inpatient treatment, she had to show she was receiving continuing medical treatment from a healthcare provider for her serious medical condition.

The court recognized that PTSD can be a chronic aliment continuing over extended periods of time.  Under FMLA, Watkins had to additionally show that she was receiving continuing treatment for PTSD.  This would mean periodic visits to a  medical provider at least twice a year.  Even though Watkins testified that she had been in treatment for seven years and in the beginning,  she had seen her medical provider regularly, she admitted that the visits were now on an as needed basis. Ultimately because Watkins could not establish that she visited a medical provider at least twice a year for PTSD, Watkins could not show that she had a serious medical condition and was entitled to FMLA leave.

Take away?

Employers should look carefully at the certification form completed by an employee’s healthcare provider, when an employee requests FMLA for their own serious medical condition.  There are two questions an employer will want answers to regarding whether or not the employee will qualify for an FMLA leave:

  • Does the provider identify a period of hospitalization or identify recent dates of treatment?
  • Does the medical provider state that the employee will need periodic visits with a medical provider at least twice a year?

A negative answer to those questions could indicate that the employee does not qualify for FMLA leave. That being said, it is important to consult with your HR professional and or legal counsel before denying FMLA leave.

NEW LAW – Wisconsin Updates Child Labor Law Requirements

Wisconsin Governor Scott Walker recently signed 2017 Wisconsin Act 11 into law. This new law updates and modernizes the Wisconsin “child labor” laws.

This act made two major changes to the child labor laws in Wisconsin. The first was cosmetic – changing references from “child labor” to “employment of minors.” The second was substantive – repealing the requirement that 16- and 17-year-olds obtain a state-issued permit before they can begin most work activities. Under the new law, 16- and 17-year-olds who wish to perform work in Wisconsin will no longer need to obtain a work permit.

The new law does not remove the following requirements:

  • Minors 14 years and younger are prohibited from most employment in the state of Wisconsin;
  • Minors younger than 16 year are still required to obtain work permits for a $10 licensing fee (which must be reimbursed by their employers);
  • The existing laws regarding the hours of work and conditions of employment for minors did not change.

The new law went into effect on June 23, 2017. Wisconsin employers who employ minors should review their hiring practices and verify they comply with the Wisconsin child labor laws.

Illinois Now Requires Child Bereavement Leave

A newly passed Illinois law (the Child Bereavement Act) requires Illinois employers who are covered under the FMLA to provide employees with unpaid bereavement leave in the event of the death of the employee’s child.

Under the new law, an employee is entitled to receive a maximum of 2 weeks (10 work days) of unpaid bereavement leave to:

  1. attend the funeral or alternative to a funeral of the employee’s child;
  2. make arrangements necessitated by the death of the employee’s child; or
  3. grieve the death of the employee’s child.

For purposes of this leave, “child” means the employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.

An employee is required to provide the employer with at least 48 hours’ advance notice of the employee’s intention to take bereavement leave for this purpose, unless providing such notice is not reasonable and practicable. The employee may also choose to substitute paid leave he have accrued, such as sick or personal days, for the bereavement leave; thereby making the leave a paid leave of absence. Finally, the employee must complete the leave within 60 days after the date on which the employee receives notice of the death of the child.

An employer may require that the employee provide “reasonable documentation” (e. g. a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency) of the employee’s need for this type of leave.

In the event of the death of more than one child in a 12-month period, an employee is entitled to up to a total of 6 weeks of bereavement leave during the 12-month period.

Bone Marrow and Organ Donation Leave Effective Today

As previously reported (in “Bone Marrow and Organ Donor Leave Coming to Wisconsin Workplaces July 1, 2016“), in April of 2016, Governor Scott Walker signed Senate Bill 517 into law. This bill requires covered Wisconsin employers (in other words, employers who employ 50+ employees in Wisconsin) to provide leave to their employees for the purpose of donating bone marrow or an organ.

Today, this law goes into effect.  Covered employers must now be prepared to grant  eligible employees up to 6 weeks of job-protected, unpaid leave in a 12-month period for the purpose of donating bone marrow or an organ. To be eligible for this leave, an employee must

  1. have been employed by the same employer for more than 52 consecutive weeks and
  2. have worked for the employer for at least 1,000 hours during the preceding 52-week period.

In addition, covered employers must post the Wisconsin Bone Marrow and Organ Donation Leave Act notice in a conspicuous location in the workplace starting July 1, 2016.  This notice is available in both English and Spanish.

Finally, employers with 25 to 49 employees are required to post a notice which states the employer’s policies for bone marrow and organ donation leave.

We recommend that affected Wisconsin employers review their leave policies and work-site postings to verify that they are in compliance with this new law.

Recovering Drug Addict Can Be Covered Under The ADA

The EEOC recently filed a lawsuit against a temporary labor agency because they violated the Americans with Disabilities Act, (ADA) when they refused to hire a recovering addict because of her disability.

According to the charges filed by the EEOC, the applicant (Ms. Cox) has been in a medically supervised rehabilitation program for four years and has not used illegal drugs since enrolling in the program. As part of her rehabilitation program, Ms. Cox uses medically prescribed methadone.

In January of 2015, Ms. Cox applied for an open production labor position with a client of the staffing agency. During the application/interview process, the manager told Ms. Cox that she had enough experience to advance to the next step of the hiring process, which included a pre-employment drug test.  Ms. Cox was then given a cup and asked to provide a urine sample.

After giving the sample, Ms. Cox disclosed to the hiring manager that she was in a medically supervised methadone treatment program. The hiring manager took the cup back and said “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” The applicant repeatedly called back informing the hiring manager that she did not have any medical restrictions from performing the labor position. Yet, the company refused to hire Ms. Cox because she used methadone.

In commenting on this case, the EEOC Regional Attorney Debra M. Lawrence stated, “Medically prescribed methadone is a common and safe treatment for people recovering from drug addiction.  The Commission will take action if an employer refuses to hire a qualified applicant based on unwarranted or speculative fears or biases about her disability or her medically supervised drug rehabilitation.”

The take-home lesson for employers — if your company uses pre-employment drug testing during the hiring process, an applicant’s medically supervised drug rehabilitation is a protected disability that cannot be the basis for refusing to hire an otherwise qualified applicant.  Employers should take a careful look at their hiring policies (especially with respect to drug testing) to verify that they are compliant with the ADA.

No Change to Missouri Minimum Wage For 2016

The Missouri Division of Labor Standards recently announced that Missouri’s minimum wage (currently $7.65 per hour) will NOT increase for 2016.

Despite the fact that Missouri’s minimum wage is unchanged for 2016, the Missouri Division of Labor Standards has issued a new minimum wage poster for 2016, which employers must post in a conspicuous place in the workplace starting January 1, 2016.

The minimum wage poster for 2016 is available here.