Tag Archives: Florida

Leave for Family of Members of the Armed Forces Deployed to a Foreign Country (Part V of FMLA Series)

In light of recent military deployments, employers should be reminded of Qualifying Exigency Leave provided for by the Family and Medical Leave Act (FMLA). We have been posting a series about navigating the complex maze that is the FMLA. At this time, we are now taking a turn down this multicursal puzzle to address the first of two specific types of leaves that are only available for family members of covered service members, the Qualifying Exigency Leave. In Part VI of this series, we will address leave to care for a covered service member with a serious injury or illness.

Eligible employees may take up to 12 weeks of FMLA leave because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a military member on covered active duty (or has been notified of an impending call or order to active duty status). This leave is provided for one or more of the following reasons:

  1. Short-notice deployment
  2. Military events and related activities
  3. Childcare and school activities
  4. Financial and legal arrangements
  5. Counseling
  6. Rest and recuperation
  7. Post-deployment activities
  8. Parental care
  9. Additional activities

What is covered active status?

This means the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation during a war or national emergency declared by the President or Congress.

How can an employer verify the military member’s covered active duty status?

The employer can contact the Department of Defense.

When a parent is seeking leave related to a child’s active military duty, is there an age limit?

No.

What is a short-notice deployment?

It is when the military member is notified of an impending call to covered active duty seven or less calendar days from the date of deployment.

What events and related activities qualify for exigency leave?

Any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member; and to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the military member.

Similarly, what childcare and school activities qualify for exigency leave?

  • Arranging for alternative childcare for a child of the military member when the covered active duty or call to covered active duty necessitates a change in childcare arrangement
  • Providing childcare for a child of the military member on an urgent, immediate need basis (but not routine everyday basis)
  • Enrolling or transferring a child of the military member to a new school or day care facility
  • Attending meetings with staff at a school or daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, and meetings with school counselors

Can leave taken for childcare and school activities apply to adult children of military members?

No, for the purposes of these qualifying exigencies, the child of the military member must be either under the age of 18 or, if over 18, incapable of self care because of a mental or physical disability at the time that FMLA leave is to commence.

What type of financial or legal arrangements are covered?

Those required to address the military member’s absence while on covered active duty or call to covered active duty status, such as financial and healthcare powers of attorney, transferring bank account signature authority, obtaining military ID cards, or preparing/updating a will or living trust.

Is there a limit to the amount of exigency leave that can be taken for rest and recuperation?

Yes. The limit is 15 calendar days to spend time with a military member who is on short term temporary Rest and Recuperation leave during deployment.

Are there requirements on who can step in to assist with the care of a military member’s parent?

Yes. Although the employee taking leave does not need to be related to the military member’s parent, the military member must be the parent, spouse, or child of the person taking leave.

Does entitlement to exigency leave end when the deployment is over?

No, arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military are covered if within 90 days following the termination of the military member’s covered active duty status. Further, issues that arise from the death of a military member while on covered active duty status, such as making funeral arrangements and attending funeral services are also covered.

What if there are other issues that arise from a military member’s covered active duty that are not specifically spelled out in the regulations?

They may be covered, if the employer and employee agree that such leave qualifies as an exigency and agree to both the timing and duration of such leave.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The fourth post  addressed issues related to an employee taking leave for his or a family member’s serious health condition. The next post in the FMLA series will address to care for a covered service member with a serious injury or illness.

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

Florida’s 2020 Minimum Wage Increase

On January 1, 2020, Florida’s minimum wage increased from $8.46 to $8.56 an hour ($12.84 for overtime). If employers have not already done so, they should make appropriate pay adjustments for their minimum wage earners. Employers with minimum wage employees (including tipped employees) that have already issued their first payroll for the year without this ten-cent adjustment, should remedy any underpayment as soon as possible but no later than the next payroll by providing the pay difference, including any additional overtime, for the prior workweek.

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 $5.44 to $5.54 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 2020 Florida Minimum Wage Notice from the Florida Department of Economic Opportunity’s website. This notice is in addition to the requirement that employers post a notice 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.

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

BREAKING NEWS: Another New Rule Regarding Overtime Pay for the New Year

Employers, another new overtime rule was just released. To complement the final rule increasing the minimum salary threshold for exempt employees, which takes effect on January 1, 2020, which we discussed in an earlier blog post, the U.S. Department of Labor (DOL) issued a final rule on December 12, 2019, clarifying that employers may offer perks and benefits to their employees without affecting the amount of overtime compensation owed. This final rule will be effective on January 15, 2020.

Prior to this new rule, the DOL’s regular rate regulations have not been significantly revised in over 50 years. At that time, typical compensation consisted predominantly of traditional wages, paid time off for holidays and vacations, and contributions to basic medical, life insurance, and disability benefits plans. Since then, the workplace and the law have changed.

First, employee compensation packages, including employer-provided benefits or “perks,” have evolved significantly. Many employers, for example, now offer various wellness benefits, such as fitness classes, nutrition classes, weight loss programs, smoking cessation programs, health risk assessments, vaccination clinics, stress reduction programs, and training or coaching to help employees meet their health goals.

Similarly, both law and practice concerning more traditional benefits, such as sick leave, have evolved in the decades since the DOL first promulgated related regulations. For example, instead of providing separate paid time off for illness and vacation, many employers now combine these and other types of leave into paid time off plans. Moreover, in recent years, a number of state and local governments have passed laws requiring employers to provide paid sick leave.

Recently, several states and cities have also begun considering and implementing scheduling laws, which require penalty payments to employees when employers utilize certain scheduling practices. Some of these laws expressly exclude the penalty payments from the regular rate under state law, and employers may be confused as they try to determine how these and other penalty payments may affect regular rate calculations under federal law.

In the new final rule, the DOL updated the regulations to reflect these and other such developments in the 21st-century workplace. The final rule announced on December 12, 2019, redefines what forms of payment employers include and exclude in the FLSA’s “time and one-half” calculation when determining overtime rates. It clarifies which perks and benefits must be included in the regular rate of pay, as well as which perks and benefits an employer may provide without including them in the regular rate of pay for purposes of calculating overtime compensation.

Specifically, the final rule clarifies that employers may offer the following perks and benefits to employees without risk of additional overtime compensation liability:

  • discretionary bonuses (noting that just calling a bonus discretionary does not determine whether it is actually discretionary);
  • cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;
  • payments for unused paid leave, including paid sick leave or paid time off;
  • payments of certain penalties required under state and local scheduling laws;
  • reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”;
  • certain sign-on bonuses and certain longevity bonuses;
  • cost of office coffee and snacks to employees as gifts;
  • contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense; and
  • payments for bona fide meal periods when no work is performed.

The final rule also made two substantive changes about other forms of compensation. “Call-back” pay and other payments similar to call-back pay no longer have to be “infrequent and sporadic” to be excludable from an employee’s regular rate. Also, a monetary limit related to the alternative “basic rate” that may be used in specific circumstances was changed from $0.50 to 40 percent of the higher of the applicable local, state, or federal minimum wage.

More information on the final rule is available at the DOL website.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

A Reminder on How to Avoid the Naughty List When it Comes to Office Holiday Parties

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 continuing to make headlines (think Tony Robbins, Bryan Singer, and Les Moonves), 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

Monster of a Florida Non-Compete Statute Survives Challenge

Earlier this year, the Florida Legislature enacted a statute that some claim is too similar to a Halloween movie monster. Much like all good movie monsters, this statute, Section 542.336 of the Florida Statutes, was created with the best of intentions. According to the legislative history, the statute was designed to combat the effects of the increasing concentration and consolidation of physician services, which reduced patients’ access to physicians and increased costs. To accomplish these goals, the statute alters existing Florida law on restrictive covenants, colloquially referred to as non-competes, which are usually enforced as long as they were reasonable in geographic scope and duration as well as supported by legitimate business interests.

Section 542.336, though, nullifies certain types of non-competes. It specifically nullifies non-competes that prohibit physicians with a specialty from competing in the same county with their former employers if that healthcare entity employs or contracts every other physician with that specialty in that county. Such non-competes are nullified until three years after another healthcare entity has begun offering the same medical specialty services in the county.

But, like any movie monster released into the wild, the statute has some troubling aspects. As an initial matter, it is wholly unclear whether the statute applies only to agreements entered into after its effective date or whether it also applies to all pre-existing contracts. It is also unclear what types of practices would be considered a medical specialty subject to the statute. Additionally, it is unclear the date that starts the three-year period, after which the non-competes subject to the statute can be enforced.More concerning is how Section 542.336 affects medical practices in the more rural counties in Florida or in which there are few, if any other, physician practitioners.

These troubling aspects have already been felt by at least one practice, 21st Century Oncology, Inc., which employed all of the radiation oncologists practicing in Lee County, Florida. Earlier this year, 21st Century Oncology sued the State of Florida, moving for a preliminary injunction on the statute, arguing that the law was unconstitutional. In 21st Century Oncology, Inc. v. Moody, the court acknowledged the plaintiff’s comparison of the new statute to the monster from the “fetid depths of a jungle swamp” in the film Creature from the Black Lagoon; however, the court was not persuaded that the statute is as unconstitutional as 21st Century claimed. According to the court, Section 542.336 serves a significant, legitimate public purpose, which does not render the employment contracts between practices and physicians wholly valueless. It, therefore, was not found unconstitutional under current federal case law. Hence, the statute survived 21st Century’s constitutional challenge.

Given the that this new statute survived its first challenge, healthcare practices should review their existing non-competes to determine what, if any, impact Section 542.336 will have on them. Additionally, individuals or entities looking to invest in new practices should be mindful of the new statute when considering the acquisition. Such investors may want to consider other means to entice practitioners to stay on, such as deferred compensation plans.

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

FMLA: Forgetting Minutiae Lead to (legal) Actions (Part IV)

Resuming our journey through the complex maze that is the Family and Medical Leave Act, we turn now to address – through a series of questions and answers – important aspects of FMLA when employees are dealing with their own serious health conditions (when they cannot perform their essential job functions) or the serious health conditions of their spouses, parents, or children. Previously, we addressed aspects of FMLA leave (i.e., up to 12 weeks of unpaid leave during the year) for employees who are expanding their family through births, adoptions, or foster child placement.

So, employees are entitled to FMLA leave if they have a serious health condition?

Correct.

And, they can take leave when a spouse, parent, or child has a serious health condition?

Again correct. Employees can also take leave to care for their spouse, parent, or child with a serious health condition.

What about grandparents or siblings?

Generally, no. Employees are not entitled to FMLA to care for grandparents or siblings or cousins or really any other family member other than their spouse, parent, or child. However, if a grandparent acted in loco parentis (acts as a parent) to the employee before the employee was of age, then FMLA leave could be taken.

I noticed that you italicized the phrase “serious health condition” above, was there a reason for doing that?

Yes, we were trying to draw your attention to that phrase because it has a special meaning under the FMLA.

What does it mean?

It means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care, or (2) continuing treatment by a health care provider.

What is considered inpatient care?

Inpatient care means that the person receiving treatment has to stay overnight in a hospital, hospice, or residential medical care facility.  It also includes periods of incapacity or subsequent treatment that’s connect to the overnight stay.

And, what do you mean by “continuing treatment by a healthcare provider”?

That phrase refers to any of the following types of ongoing treatment: incapacity and treatment, pregnancy or prenatal care, chronic conditions, permanent or long-term conditions, and conditions requiring multiple treatments.

You did that italicizing thing again with the word incapacity.

Yes, we did.  That’s because the word incapacity also has a special meaning.

What is the special meaning for incapacity?

An incapacity means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition, which lasts longer than three days.

Are there any limits on what’s included in the incapacity period?

Yes. To qualify for FMLA coverage, the incapacity must also involve:

  • Treatment two or more times by a health care provider, under the supervision of a healthcare provider, or due to a referral by a health care provider, within 30 days of the first day of incapacity; or
  • Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

So, does a period of incapacity require a visit with a health care provider?

Yes.

Who qualifies as a healthcare provider?

Health care providers include professionals who you would normally think about, like doctors of medicine or osteopathy (authorized by the State in which the doctor practices), podiatrists, dentists, optometrists, nurse practitioners, physician assistants, or clinical psychologists.

Is that all?

No. Under the FMLA, a healthcare provider can also include chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist), nurse-midwives, clinical social workers, or any healthcare provider that an employer or the employer’s group health plan’s benefits manager accepts to certifying for purposes of a benefit claim that the individual has a serious health condition.

Going back to the period of incapacity lasting more than three days, are there any additional requirements involved with that period?

There are. The first (and sometimes only) in-person treatment visit with a healthcare provider must happen within seven days of the first day of incapacity.

Can you have partial day incapacities that count towards that original three-day requirement?

No, partial days of incapacity cannot be combined to satisfy the requirement that the incapacity extend more than 3 days or 72 hours.

Can an employee receive FMLA leave if they schedule all of their routine physical exams over three days and miss three full days of work?

No. The treatment at issue does not include routine physical examinations, eye examinations, or dental examinations. The treatment protected by the FMLA is generally limited to examinations to determine if a serious health condition exists and evaluations of that condition.

You mentioned earlier that the requirement for continuing treatment by a healthcare provider includes treatment for pregnancy or prenatal care, right?

Yes, it does. However, a pregnant employee can still be entitled to FMLA leave if the employee does not receive medical treatment for the absence. For example, a pregnant employee unable to report to work because of severe morning sickness would be entitled to FMLA for that absence.

You mentioned that chronic conditions can be a qualify reason, what are those?

A chronic serious health condition is one which:

  • Requires periodic visits for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
  • Continues over an extended period of time (including recurring episodes of a single underlying condition); and
  • May cause episodic rather than a continuing period of incapacity.

How periodic must a visit be?

It must be at least twice a year.

Are there examples of conditions that may cause episodic rather than continuing periods of incapacity?

Yes, those types of conditions may include asthma, epilepsy, diabetes, and similar types of conditions.

So, diabetes can be considered a chronic condition for which employees may use FMLA leave?

Yes, if it requires in-patient care or if it requires an employee go to the doctor at least twice a year.

Now, what about permanent or long-term conditions, must there be active treatment for all covered absences?

No. Although the individual suffering from a permanent or long-term condition must be under the continuing supervision of a health care provider, that individual is not required to receive active treatment during each covered absence.

Are there any examples of these types of conditions?

Examples of permanent or long-term conditions that fall in this category include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

What types of conditions requiring multiple treatments would qualify for FMLA leave?

Either, restorative surgery after an accident or other injury; or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The next post in the FMLA series will address the qualifying reasons arising from issues specific to military members and their families.

Special thanks to Associate John Getty for his assistance with this blog post.

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

Restrictions on Vaping and Texting Go Into Effect: Today is Gonna be the Day That the Florida Legislature Is Gonna Throw It Back to Employers*

By now you should’ve somehow realized that today (July 1, 2019) the amendment to the Florida Clean Indoor Air Act, which implements the 2018 constitutional amendment prohibiting vaping in the workplace, goes into effect.

Hopefully, businesses and employers realize what they have gotta do now that the use of e-cigarettes in indoor workplaces is prohibited. The word is on the street that indoor workplaces will become an oasis for non-smokers – who likely never really had a doubt that that the fire in the hearts of vaping employees would eventually go out.

Employers can no longer choose to allow employees to vape indoors. Those using e-cigarettes will now be relegated to designated smoking areas–-presuming employers provide smoking areas. Although we don’t believe any vaping employees will feel that great about this decision now, it is the law, and maybe it’s gonna be something that saves them.

Beyond that, all roads that employees have to drive are winding, and now all the lights from their cellphones won’t be blinding. Because, as of today, texting while driving has become a primary offense rather than being a secondary offense. There are many things that we’d like to say about this, but primarily, this means employee drivers can be pulled over for texting while driving without violating any other traffic law. Maybe, this will be a law that saves people.

Regardless, employers will need to throw it back to employees who are driving while working, and make sure that they somehow realize what they’re not to do. We don’t believe that any managers should refrain from training their subordinates and requiring employees to avoid texting-and-driving. That way, the managers can also be the ones who save their employee drivers and protect their employers’ businesses. Read more about the new texting law.

Both of these laws—after all—could have positive consequences on the health and well-being of workers and be the laws that save them.

* see ”Wonderwall” Oasis 1995

Special thanks to Associate John Getty for his assistance with this blog post.

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

FMLA: Forgetting Minutiae Leads to (legal) Actions (Part III)

After providing a general overview of the convoluted maze that is the FMLA, explaining  which employers are subject to the FMLA, and describing which employees are eligible for leave, we now continue our journey by addressing when an employee can take FMLA.

Eligible employees of covered employers may take up to 12 workweeks of leave during any
12-month period for one, or more, of the following reasons:

1. The birth of the employee’s son or daughter, or to care for the newborn child.
2. For placement with the employee of a son or daughter for adoption or foster care.
3. To care for the employee’s spouse, son, daughter, or parent with a serious health
condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse,      son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status).

These reasons—along with a few others involving military service members that we will address in a future blog post—are known as “qualifying reasons” under the FMLA. Some of these qualifying reasons are straightforward while others involve important nuances. For today’s post, we’re going to address the issues that come up with points 1 and 2 above (the birth, adoption, or fostering of children) through another series of questions and answers.

I have an employee who qualifies for FMLA leave, and the employee is about to have a new child. What rights does that employee have?

As noted above, an employee who qualifies for FMLA can take up to 12 workweeks of leave during a 12-month period for the birth or care of a newborn child.

Does an employee have to take all the qualifying leave at one time?

It depends. An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy child or placement of a healthy child for adoption or foster care, but only if the employer agrees.  If the employer does not agree, then the time off will be all at one time.

Does an employee need to take all of their FMLA leave for the birth of the child right after the child is born?

Not necessarily, an employee can take leave for the birth of a child any time up to 12 months after the child’s birth.

 Are both parents entitled to leave for the birth of their child?

Generally, both parents are entitled to leave for the birth of the employee’s child. However, if both spouses work for the same employer, the total combined leave taken by both spouses for the birth of the child or to care for the child after birth may be limited to a combined total of 12 weeks of leave during any 12-month period. In other words, both spouses have 12 weeks combined for the newborn child. Thus, the mother and father could both take 6 weeks each. Or the mother could take 9 weeks, and the father 3 weeks. Alternatively, if the mother takes 12 weeks, then her spouse would not be entitled to any FMLA leave.

Where both spouses use a portion of the total 12-week FMLA leave entitlement for the birth of a child, each spouse would be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes.

The foregoing is also true for the placement with the employee of a child for adoption or foster care. For purposes of the FMLA, a spouse includes a married husband or wife (husband or wife refers to the other person with whom an individual entered into marriage), which includes same-sex spouses.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The next FMLA post in this series will address the qualifying reasons involving an employee’s own serious health condition or the serious health condition of family members.

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

Planning for Hurricane Season: Employee Pay During and After a Storm

With the onset of the 2019 hurricane season and the effects of Hurricanes Michael and 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.

Healthcare employers also have 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 article, “Senior Living Providers: Are You Ready for Andrea, Barry, and Chantal?

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

Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees

As previously reported, the U.S. Department of Labor issued a proposed rule addressing exemptions for bona fide executive, administrative, professional, and outside sales employees (the “white-collar” exemptions”) under the Fair Labor Standards Act. Presuming the rule goes into effect, the new minimum salary threshold for these employees will be $35,308 per year (or $679 per week).

Beyond changing the minimum salary threshold for the “white-collar” exempt employees, the DOL also proposed increasing the exemption threshold for a smaller category of employees: “highly-compensated” employees. Previously, any employee whose primary duty was performing office or non-manual work and who customarily and regularly performed at least one duty or had at least responsibility of a bona fide executive, administrative, or professional employee could be exempt–if the employee made at least $100,000 a year and received at least $455 each week on a salary or fee basis. In essence, the “highly-compensated” employees exemption combines a high compensation requirement with a less-stringent, more-flexible duties test in comparison to those used under the “white-collar” exemptions.

Like the DOL’s proposed changes to the “white-collar” exemption, the DOL’s proposed changes to the “highly-compensated” exemption does not alter the duties requirements. Rather, the DOL proposes an increase to the annual and weekly salary thresholds. But in this instance, the increase is substantial. The proposed new threshold jumps from $100,000 under the current rules up to $147,414, of which $679 must be paid weekly on a salary or fee basis. That is an approximate 50 percent increase, and it is about $13,000 higher than what had been previously proposed when changes were considered in 2016.

Now, despite the change raising eyebrows, one could question whether it would have significant impacts because most workers paid $100,000 or more often already fall into one or more of the other exemptions. The DOL itself acknowledges in the proposed rulemaking that it estimates only about 201,100 workers nationwide would become eligible for overtime due to this salary increase. In comparison, the DOL expects the “white-collar” salary change will impact approximately 1.1 million workers nationwide.

The common view remains that the new minimum salary thresholds will likely go into place later this year (2019) but likely no later than January 1, 2020. Although that later date is almost seven months away, that deadline is rapidly approaching. Hence, it is worth reiterating that employers should begin evaluating their staff to determine who, if anyone, may be affected and determine how to proceed. Similarly, this rule change provides employers an opportunity to audit all of their employees (even those unaffected by the proposed rule changes) to make sure each one is properly classified. And if they are not, employers can time any reclassifications with those made to meet the new rule changes to possibly minimize bringing attention to and potential liability for any past misclassifications.

In the meantime, the DOL will accept comments from interested parties until May 21, 2019 at 11:59 PM ET. The public will be able to provide electronic comments at regulations.gov (after searching for RIN no. 1235-AA20) or via mail to the address below (identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA20).

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210

John C. Getty
jgetty@williamsparker.com
(941) 329-6622