Author Archives: Jennifer Fowler-Hermes

Important Notice for Employers Required to Submit EEO-1 Report

The Equal Employment Opportunity Commission issued a notice this morning that, due to the recent partial lapse in appropriations, the deadline to submit EEO-1 data will be extended until May 31, 2019. The EEO-1 is an annual survey that requires certain employers to file the EEO-1 report. The EEO-1 Report, Standard Form 100, is a compliance survey that requires company employment data to be categorized by race/ethnicity. As set forth on the EEOC’s website, all companies that meet any of the following criteria are required to file the EEO-1 report annually:

  • The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
  • The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees, if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • The company is a federal government prime contractor or first-tier subcontractor subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.

Details instructions for the 2018 EEO-1 filers, including the exact date of the survey opening, will be forthcoming. Filers should refer to the EEO-1 website in the coming weeks for updates on the new schedule. Also, see the EEOC’s FAQ for further information.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Another Business Resolution: Conduct a Pay Audit in 2019

Pay Audits are different from wage and hour audits. A wage and hour audit looks at whether employees are being paid in compliance with state and federal wage and hour laws. A pay audit reviews whether there may be discrimination in pay practices within an organization. With the #metoo movement and a renewed focus on pay gaps, an internal review of pay practices could save a business from liability under the primary statutes used to combat discriminatory pay gaps – Title VII, the Florida Civil Rights Act, and the Equal Pay Act.

As with other types of claims brought under state and federal discrimination statutes, a claim of disparate pay based on any protected characteristic is subject to the same administrative filing requirement and provides the same remedies as a wrongful termination case. On the other hand, under the Equal Pay Act (which only covers disparities based on gender), there is not an administrative filing requirement, and the definitions and statute of limitations for an employee to bring a claim is the same as those in place for the Fair Labor Standards Act. Further, Equal Pay Act claims do not require proof of intent to discriminate on the part of the employer. And, not having intent as a requirement makes it easier for an employee/former employee to establish a prima facie case. Under the Equal Pay Act, an employee need only show that she works at the same location, performs substantially equal work (regardless of job title), works under substantially equal working conditions, and is paid less than a male counterpart.

In a perfectly competitive labor market, the value an employee contributes to a business should determine that employee’s wage. However, in the real world, there are disparities of income that may be due to differences in labor productivity, and there are wage disparities across genders and ethnicities. When it comes to gender, disparities may be due to:

  • Compensating wage differentials: men may be employed in more dangerous or “dirty” jobs that pay more
  • Choice of college major and choice of career
  • Time constraints: mothers may have only limited time to pursue career advancement
  • Different negotiating skills of men and women
  • The number of years of work experience
  • The number of years in continuous employment
  • The number of hours spent at work
  • Employer discrimination

As set forth above, employer discrimination is only one of several reasons why a gap may exist and employers may have pay gaps that are based on non-discriminatory reasons.  Both the civil rights statutes and the Equal Pay Act provide several defenses to claims of discriminatory pay. Employers can avoid liability by proving the pay differential is due to one of the following reasons:

  • Seniority System
  • Merit Pay System
  • System that measures quality or quantity of work
  • Factor based on any factor other than sex  (this is considered a “catch all” defense)

It is good for employers to be aware of any gaps that exist in its pay practices and understand why they exist. When an employer does not have an explanation, that is when litigation and potential liability can ensue. Below are a few ways that businesses can help prevent (and if necessary defend) discrimination in pay claims:

  • Evaluate all forms of compensation (starting salary, benefits, bonuses, shift differentials, overtime, training opportunities, separation pay, etc.) at least annually for potential pay disparities based on race/ethnicity and gender
    • Evaluate how pay raises and bonuses are determined to ensure that decisions are made in a non-discriminatory manner.
    • Evaluate how you assign your employees to specific jobs.
    • Focus on job recruitment, placement and how pay is assigned to job classes.
  • In addition to an annual assessment, throughout the year conduct periodic “spot” checks for potential compensation problems.
  • Correct problems as soon as they are discovered.
  • Evaluate how women and minorities are placed in your workforce. Do not make assumptions about what they can or cannot do.
    • Does your hiring process seek diversity in the qualified applicant pool?
    • Do you offer career training or opportunities for both genders?
    • If starting salaries and signing bonuses are negotiated, ensure that such a practice does not have an adverse impact on women or minority workers.
    • Evaluate whether all workers have equal opportunity for advancement. Placing one gender in areas that lead to greater advancement could be a violation of law.
  • Periodically review your performance evaluation process and the ratings given to each employee to determine whether the process or the ratings unfairly disadvantage women, or any other protected classes.

This post is part of a series of business resolutions to consider for the new year. In case you missed them, our previous posts in the series discussed Florida minimum wageemployee performance management, and employee handbook/wage audits.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Business Resolutions: Ensuring Your Business Starts the New Year Off Right

When was the last time that your business had a wage audit to evaluate whether your employees are properly classified under the Fair Labor Standards Act, or had your employee handbook reviewed and revised to bring it up-to-date with the law and current company practices? If it has been a few years, then this may be the year that your business resolves to invest in a wage audit and/or handbook review.

Wage audits include an evaluation of your job positions, pay and overtime policies, as well as payroll records of each position within an organization or department. Sometimes, audits can also include interviews with employees to ascertain if there are any issues that management should be aware of. Audits can reveal if a business has any issues with, not only misclassification of employees as exempt when they should be non-exempt, but whether managers are following the organization’s policies regarding overtime. As a company grows and changes, often the duties of its employees also change. Sometimes these changes are significant enough that a change in classification is in order and a failure to adjust the classification could result in liability. Further, a wage audit can often help to determine if an organization’s accountant or payroll company is calculating overtime in accordance with the applicable regulations. Many a lawsuit are filed against employers who believe that since they have enlisted the assistance of a third party, employee overtime is being calculated appropriately. That is not always the case.

Employee handbooks should be reviewed every couple of years, not only to ensure that the handbook reflects the current state of the law, but also that it reflects the actual practices of a company. Businesses grow and change, and actual practices can start to diverge from what is reflected in the handbook. It is always better to have a handbook that provides policies and procedures that the company is currently using and enforcing. It is never recommended for a company to have policies that it does not follow.

This post is part of a series of business resolutions to consider for the new year. In case you missed them, our previous posts in the series discussed Florida minimum wage and employee performance management.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Another Business Resolution: Ensure Your Business Implements Florida’s New Minimum Wage

The next suggested resolution in our series of business resolutions is one that all businesses in Florida should implement, as it is legally required. On January 1, 2019, Florida’s minimum wage will increase from $8.25 to $8.46 an hour. Employers should be prepared to make appropriate pay adjustments for their minimum wage earners. Failing to pay non-exempt employees Florida’s statutory minimum wage can result in claims against employers pursuant to Section 24, Article X of the State Constitution and Section 448.110, Florida Statutes. The maximum tip credit ($3.02) that can be taken by Florida employers with tipped employees will remain the same, but the direct wage paid to tipped employees will increase from $5.23 to $5.44 an hour.

In addition to raising the minimum wage, Florida employers are required to post a minimum wage notice in a conspicuous and accessible location. You can download the 2019 Florida Minimum Wage Notice from the Florida Department of Economic Opportunity’s website. This notice requirement is in addition to the requirement that employers post regarding the federal minimum wage (which has not been increased). There will also be commercially available Florida-specific “all-in-one posters” that satisfy both the federal and state notice requirements.

In case you missed it, our first business resolution of this series covered employee performance management.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

What Are Your Company’s Business Resolutions for the New Year?

As 2019 approaches, many companies reflect on the year that has gone by, remembering both the triumphs and missteps. As this year comes to a close, many businesses will be making business resolutions for the new year. You may already have some goals set, but if you do not, this post will be the first in a series designed to provide insight into areas where companies may want to focus in the year ahead.

We will start this series off with our colleague John Hament’s recent article from our Requisite X publication, “Adapting to Change: Reinventing Employee Performance Management.” As explained in this article, for some employers there can be downsides to the traditional annual performance evaluation system. Recognizing these downsides, and ascertaining if a different approach is good for your organization, may be a worthwhile business resolution.

Stay tuned for more resolutions to consider in 2019.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Office Holiday Parties: Avoid Adding Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Unleashing Weingarten Rights

When conducting investigations of employees in a unionized workforce, employers often feel like the lion tamer in the cage with nothing but a whip and stool between them and legal jeopardy. Unfortunately, a recent decision by the National Labor Relations Board, In re Circus Circus Casinos, may have just taken the stool away and, in doing so, created a real circus.

The National Labor Relations Act has been interpreted to allow employees to request preferred union representation for investigatory interviews that may reasonably lead to discipline. Up until [this] Circus, this right was understood to arise only if an employee requested representation. Moreover, it was well confirmed that the employee’s selection of a representative could not be used to delay an employer’s investigation. In fact, as recently as September 2017, when the NLRB released to the public an advice memorandum addressing Weingarten rights, in which it noted that:

“[I]f the employee requests an unavailable representative, it is the employee’s obligation to request an alternative available representative in order to remain under Weingarten’s protections; the employer is not required to postpone the interview, secure an alternate representative, or otherwise accommodate the employee’s specific request.”

Nonetheless, in Circus Circus the panel broke with these seemingly settled principles.

So, what led to the three-ring circus of Circus Circus? First, employer directed an engineering department temporary employee to be fitted with a respirator to comply with OSHA regulations. Citing anxiety, the employee advised the third party that was fitting the employee that he wanted to speak with a doctor. The third party denied this request and advised the employer that the temporary employee refused to cooperate.  The employer suspended the employee pending an investigation.

Subsequently, the employer’s HR representative spoke with the employee, informing him that he was to report for a “due process” meeting the next day. The HR representative advised the employee “that if he wanted Union representation that he needed to bring the steward with him.” The employee repeatedly called and left a message with his union about representation for the meeting, but he never received a return call.

The day of the meeting, the employee appeared at the employer’s facility, walking past where the union steward worked. The employee, however, did not attempt to speak with the shop steward. Instead, the employee looked around the HR representative’s office before entering, allegedly searching for a union representative. Nevertheless, no union representative was there. When the meeting began, everyone agreed that the employee stated:

“I called the Union three times [and] nobody showed up, I’m here without representation.”

After the meeting, the employee was separated. The employee would later claim that he told the employer’s representative that he wanted the union at the meeting and, moreover, the representative told him he did not need anyone present because the matter was not a disciplinary action. The employer’s representative denied these allegations.

Focusing on the employee’s statement that he attempted to reach the union, the NLRB panel, in a 2-1 decision concluded that this statement was, in fact, a request for representation. Alluding to the fact that no magic words were needed to invoke Weingarten rights, the majority decided that the employee’s statement about his unsuccessful attempt to reach a representative—standing alone—was sufficient to invoke Weingarten rights. The NLRB affirmed the administrative law judge’s order of reinstatement and backpay.

Although Circus Circus Casinos has since appealed this decision, employers will still be well-served to tread carefully when conducting employee investigations in the interim—lest they wake the lion. As such, employers may want to consider any statement by a union employee referencing their union, their steward, a witness, or a representative as invoking Weingarten rights. A failure to do so may put an employer at risk of taking a nasty bite in the form of reinstatement or back pay.

Attorney John Getty* assisted in preparing this blog post.
*Admitted in Louisiana and Georgia

The NLRB Continues to Retreat on Its Assault of Handbook Policies

In a recently released memo, the NLRB General Counsel confirmed the Board’s December 2017 signal of a shift in how the Board will scrutinize employer personnel policies. In December 2017, the NLRB changed course when it replaced the Lutheran Heritage standard, which had been aggressively used by the Board to invalidate personnel policies, with the Boeing standard (as discussed in our post from December 2017, “The NLRB’s Holiday Gift to Employers”). The Lutheran Heritage standard evaluated whether employees could “reasonably construe” a policy as barring them from exercising their rights under the NLRA. If the answer was “yes,” the policy was improper. The Lutheran Heritage standard was often applied in a manner that gave the appearance that the NLRB thought employees were lacking in intellect or common sense. Thus, the switch to the Boeing standard was generally celebrated by employers.

Even so, many employers felt that although the Boeing standard was a step in the right direction, it was somewhat complicated. In response to these criticisms, on June 6, 2018, NLRB General Counsel Peter Robb issued GC 18-04 “Guidance on Handbook Rules Post-Boeing.” This guidance provides examples of the policies (which he refers to as rules) that would fit into each of the three categories, and also makes it clear that the NLRB will no longer interpret ambiguities in rules against the drafter, “generalized promises should not be interpreted as banning all activity that could be considered included.”

The memo explains that the Boeing standard balances the personnel policy in question’s impact on NLRA-protected rights with the employer’s legitimate business justifications. The Boeing analysis uses three categories to determine the legality of rules:

Category 1: Rules that are Generally Lawful to Maintain

Category 2: Rules Warranting Individualized Scrutiny

Category 3: Rules that are Unlawful to Maintain

The memo goes on to state that Category 1 includes rules that may have been found unlawful under the Lutheran Heritage standard. It also explains that the types of rules in this category are generally lawful because the rules do not prohibit or interfere with the exercise of NLRA-protected rights or because there are business justifications associated with the rule. Rules in this category include:

(a) civility rules;

(b) no photography, no-recording rules;

(c) rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;

(d) disruptive behavior rules;

(e) rules protecting confidential, proprietary, and customer information or documents;

(f) rules against defamation or misrepresentation;

(g) rules against using employer logos or intellectual property;

(h) rules requiring authorization to speak for company; and

(i) rules banning disloyalty, nepotism, or self-enrichment.

The memo provides that charges alleging that rules in Category 1 are facially unlawful are to be dismissed, recognizing however, that special circumstances could render a normally lawful rule in Category 1 unlawful. Facially lawful rules cannot be used to prohibit protected activity or to discipline employees for engaging in protected activity.

Category 2 rules are to be evaluated on a case-by-case basis. Such rules are not facially lawful or unlawful. If rules in this category restrict NLRA-protected rights, then the question is whether the employer’s business interest in having the rule outweighs the restriction on NLRA-protected rights. Some “possible examples” of Category 2 rules are:

(a) broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;

(b) confidentiality rules that encompass employer business or employee information;

(c) rules regarding disparagement or criticism of the employer;

(d) rules regulating the use of the employer’s name;

(e) rules generally restricting speaking to the media or third parties;

(f) rules banning off-duty conduct that might harm the employer; and

(g) rules against making false or inaccurate statements.

Category 3 rules are unlawful to maintain because they prohibit or limit NLRA-protected conduct and the adverse impact on NLRA-protected rights outweigh any justifications for them. Category 3 rules include:

(a) confidentiality rules specifically regarding wages, benefits, or working conditions; and

(b) rules against joining outside organizations or voting on matters concerning.

In light of Boeing and GC18-04, employers should be more confident in their ability to maintain appropriate policies for their workplaces, including those that dictate professional behavior. The new approach is clearer and provides for a balancing of employer justifications with employee rights, resulting in common-sense personnel policies being upheld as lawful. Employers are now better positioned to defend attacks on their well drafted, common-sense personnel policies.

Summer associate Ryan Larson assisted in preparing this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Employers Hear Music as the Supremes Cut into Employee Class Actions

The United States Supreme Court recently decided two cases addressing class-action proceedings. These cases show that “Things Are Changing” and employers will no longer have “Nothing But Heartache.” Both decisions are employer-friendly, in that these opinions effectively limit participation in class-action lawsuits.

In Epic Systems Corp. v. Lewis, the Supreme Court upheld the enforceability of class-action waivers in employee arbitration agreements. Arbitration is an alternative means of resolving a dispute without proceeding to a court trial. A class-action waiver in the employment context is a contract provision in an arbitration agreement that prevents employees from resolving employment disputes in a group. The Court found that employers can put these waivers in their arbitration agreements, and the waivers do not invalidate the agreements. Opponents to these waivers are now screaming, “Stop, In the Name of Love.”

Now, some “Reflections.” In light of this decision, employers should keep two things in mind.

  • The Epic Systems decision does not represent a blanket endorsement of arbitration agreements; rather, this decision requires courts not to overturn arbitration agreements solely because they contain class-action waivers. This case does not prevent courts from refusing to enforce arbitration agreements for other reasons.
  • Epic Systems does not mean all employers should declare, “I’ll Try Something New,” and adopt arbitration agreements. Employers considering using arbitration agreements should evaluate whether arbitrating their disputes is the right choice. Employers should keep in mind that by agreeing to arbitration, they are generally giving up their right to appeal an adverse decision.

In the second case, China Agritech v. Resh et al., which was not an arbitration case, the Court held that employees/former employees who were not certified as members of a class-action lawsuit before the legal deadline to join the lawsuit could not file a new class-action suit after the passage of the statute of limitations on the initial class action. Thus, some employees/former employees who do not timely protect their rights will no longer be able to belt, “You Keep Me Hangin’ On.”

“No Matter What Sign You Are,” as an employer these decisions are “Automatically Sunshine” and maybe even a bit of “Buttered Popcorn.”

Summer associate Kelley Thompson assisted in preparing this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Planning for the Next Hurricane: Employee Pay During and After a Storm

With the onset of the 2018 hurricane season and the effects of Hurricane Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Heathcare employers also have new ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s recent article, “Senior Living Providers: Are you ready for the Beryl, Chris, and Debby?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558