Tag Archives: employees

Just the Facts on the Vaccine: What Employers Need to Know

Join the Lakewood Ranch Business Alliance for an interactive, virtual Q&A session featuring Williams Parker labor and employment attorney Jennifer Fowler-Hermes.

Jennifer will provide employers with an update on what they need to know about providing the COVID-19 vaccine to employees—those who want to take it and those who don’t.

Wednesday, February 10, 2021
8:00 – 9:00 a.m.
via Zoom
No cost to members or non-members

Register at lwrba.org/events

Participation is encouraged, and questions may be submitted in advance.

Jennifer Fowler-Hermes is a partner and chair of the Labor & Employment practice at Williams Parker. She is a board certified labor and employment attorney with over 20 years of experience helping businesses effectively navigate an array of labor and employment matters. In addition to advocating for clients in litigation matters, Jennifer provides advice and guidance regarding day-to-day employment-related business decisions; delivers management training; drafts employment-related documents, contracts, and policies; collaborates with clients in the management of a crisis (such as COVID-19); coordinates employer responses to agency investigations; and leads management-side collective bargaining teams. She is also a Qualified Arbitrator for all Florida Courts and a Florida Supreme Court Certified Civil Circuit Mediator.

Florida Raises Minimum Wage

Effective January 1, 2021, Florida’s minimum wage rate will increase from $8.56 per hour to $8.65 per hour. Florida’s minimum wage law applies to all employees in the state of Florida who are covered by the federal minimum wage law. For “tipped employees” who meet eligibility requirements for the tip credit under the federal Fair Labor Standards Act (FLSA), employers may take a “tip credit” of up to $3.02 per hour for tips received by the employee. However, they must still pay employees a direct wage. The direct hourly wage for tipped employees in Florida for 2021 is $5.63 (the 2021 Florida minimum wage rate ($8.65) minus the federal tip credit ($3.02)). Both Florida’s minimum wage rate and the direct hourly wage rate for tipped employees are higher than the federal rates, so Florida employers must pay employees the higher Florida rates.

In addition, in November 2020, Florida voters passed Amendment 2 by a constitutional referendum. Effective September 30, 2021, Florida’s minimum wage will rise from $8.65 to $10 an hour and increase $1 every year until it reaches $15 per hour on September 30, 2026. Starting September 30, 2027, Florida’s minimum wage rate will be adjusted annually for inflation.

If employers have not already done so, they should make appropriate pay adjustments for their minimum wage earners. Employers who must pay their employees the Florida minimum wage must post a notice of the state minimum wage requirement (besides posting a notice as required by the FLSA) in a conspicuous and accessible location. The Florida notice is available online.

Important Changes to FFCRA Leave Requirements – Including a Change to the Definition of Health Care Provider

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations addressing the availability of employee leave under the Families First Coronavirus Response Act (FFCRA). These regulations were issued in response to a federal court finding that the DOL exceeded its authority in its original regulations.

The FFCRA, created in response to the COVID-19 public health emergency, requires employers with fewer than 500 employees to provide their employees with paid sick leave (termed Emergency Paid Sick Leave or “EPSL”) and expanded family medical leave (referred to as Emergency Family Medical Leave of “EFML”). There are exemptions to the leave requirements.

In early spring, the DOL issued its initial regulations addressing a host of questions regarding the application and interpretation of the FFCRA. In those regulations the DOL clarified which employees counted as “health care providers” for purposes of one of the exemptions to the leave requirements. Several of the DOL’s regulations were challenged in federal court in New York. Recently, that court ruled that the DOL’s rules on the following topics were unlawful:

(1)  the broad definition of an employee who is a “health care provider”;

(2)  the requirement that an employer must consent to intermittent leave under FFCRA;

(3)  the requirement that an employer must have available work before an employee can receive either EPSL or EFML, which DOL had termed the “work availability requirement”; and

(4)  the types of notice and documentation an employee must provide before taking FFCRA leave.

Below is a summary of how the DOL addressed the foregoing issues.

Definition of Health Care

The DOL narrowed the definition of “health care provider.” Previously, an employee could be considered a “health care provider” for purposes of the exemption, if the employer was a health care provider—regardless of what role the employee played within the organization. Now, the term “health care provider” is defined as those employees who are already defined as “health care providers” for purposes of providing certifications under existing FMLA regulations, along with those employees who provide diagnostic, preventive, treatment or other services that are integrated with and necessary to health care and the provision of patient care, and if not provided, would adversely impact patient care.

The revised regulations clarify the types of services that are considered health care services or the provision of patient care:

  • Diagnostic: Includes taking or processing samples, performing, or assisting in x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventive: Includes screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment: Includes performing surgery or other invasive or physical interventions, prescribing medication, providing, or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
  • Integrated: Those services that are “integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

Beyond outlining the characteristics, the revised regulations provide a helpful, non-exhaustive list of exempt employees:

  • nurses, nurse assistants, medical technicians, and others directly providing diagnostic, preventive, treatment, or other integrated services;
  • employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
  • employees who are “otherwise integrated into and necessary to the provision of health care services,” such as laboratory technicians who process test results necessary to diagnoses and treatment.

Conversely, the following employees should no longer be considered exempt from FFCRA leave entitlement:

  • IT professionals,
  • building maintenance staff,
  • human resources personnel,
  • cooks,
  • food services workers,
  • records managers,
  • consultants, and
  • billers.

Work Availability Requirement

The DOL did not change its position on the work availability requirement. DOL maintains its position that for an employee to take FFCRA leave, an employer must have work available for the employee to perform when the need for FFCRA leave occurs. If the employee is not scheduled to work—whether due to a furlough, business closure, or otherwise—there is no work from which to take leave.

The DOL did clarify that the employee’s FFCRA reason for leave must be the sole reason that he or she is not working. An employer cannot use work unavailability as a pretense to prevent an employee from taking EPSL of EFML leave.

Definition of “Intermittent Leave

Similarly, the DOL has not substantially altered its intermittent leave rule, even though the district court rejected the original regulation. The new regulations detail additional analysis for why the DOL reached the conclusion it did. A key point the DOL raises is that an employer should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.”

Documentation and Notice Requirements

The DOL slightly adjusted the documentation rules to confirm that, like under the FMLA, an employee is not required to provide documentation before leave in every situation. Rather, an employee may provide documentation as soon as practicable.

Additionally, the DOL clarified that employees must provide the employer with notice as soon as practical when they seek EFML leave to care for a child whose school or place of care is closed. Thus, when an employee receives notice that school will be closed, the employee should notify their employer about the need for leave.

Concluding Thoughts

The change to the scope of the health care provider exemption is the most important change about which employers will have to address. Those in the health care industry should perform an analysis of employees’ job classifications to determine whether certain employees remain eligible to be exempt as “health care providers” under the revised definition. In light of the revised regulations, all employers should review their current leave practices and adjust accordingly.

Aside from the changes to the definition of health care provider, the revised regulations do not fundamentally change the DOL’s prior interpretation. Instead, the changes provide further clarification as to the basis for the DOL’s position. We suspect that the DOL promulgated these new regulations, in part, to support its position in later legal fights.

Attorney John Getty and legal clerk Kimbrell Hines contributed to this post.

Watch On-Demand: Webinar on Novel Issues Relating to Employees Working Remotely

As more employees work from home, employers are facing questions about how to comply with employment laws in a manner that minimizes risks associated with remote work. Our Business Solutions team recently presented a webinar addressing many of the employment-related issues arising from remote work. The head of our Labor & Employment practice, Jennifer Fowler-Hermes and L&E attorney John Getty were joined by Brad Hall, a workers’ compensation defense attorney, to discuss a variety of topics, including how to properly track work hours, complying with employment laws, the importance of telework agreements, and whether and to what extent workers’ compensation laws apply. Watch it on-demand below.

 

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

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

BREAKING NEWS: Final Overtime Rule Released

Employers, the long wait is over. You finally have an answer regarding whether the federal overtime regulations are going to be changed. As discussed in our earlier blog posts Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions and Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees, in March 2019, the U.S. Department of Labor abandoned its 2016 attempt to increase the salary threshold for exempt employees when it issued a much-anticipated proposed rule. On September 24, 2019, the DOL formally rescinded the 2016 rule and issued its new final overtime rule.

The new rule, taking effect on January 1, 2020, increases the earnings thresholds necessary to exempt executive, administrative, professional, and highly compensated employees from the Fair Labor Standard Act’s overtime pay requirements from the levels that had been set in 2004.  Specifically, the new final rule:

  • Increases the “standard salary level” from $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • Raises the total annual compensation level for “highly compensated employees” from $100,000 to $107,432 per year; and
  • Revises the special salary levels for workers in U.S. territories and in the motion picture industry.

And, for the first time, the final rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level for executive, administrative, and professional employees (not highly compensated employees).

Employers take note, however, that the new final rule does not change the duties portions of the otherwise affected exemptions. For more information about the new final rule, you can go to the Department of Labor website.

As New Year’s Day will be here before we know it, this is a good time for employers to audit their pay practices to make sure that employees are properly classified, update timekeeping and payroll systems, and train reclassified employees on new processes before the new rule takes effect.

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

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

Avoiding Errors in the Match Game: Responding to the Rising Number of “No-Match” Letters

Starting late last year and continuing on the heels of tax season, the Social Security Administration (SSA) has been sending employers Employer Correction Request Notices, also known as EDCOR notices or “no-match” letters. An example “no-match” letter is available at the SSA’s website. These “no-match” letters notify an employer that the information submitted on an employee’s W-2, such as the Social Security Number or SSN, does not match the SSA’s records. Even though it’s not conclusive evidence that an employee is not authorized to work in the United States, it can put an employer on notice of a possible issue, which can lead to potential compliance issues and liability under federal law. See our previous discussion here and here on recent Form I-9 compliance issues.

Of course, common discrepancies can also trigger a “no-match” letter, such as  unreported name changes, typos or input errors by the SSA, reporting errors by an employer or employee, errors in recognizing multiple last names or hyphenated last names, or identity theft.

In other words, “no-match” letters can arise because of simple administrative errors. Employers should not presume the “no-match” letter conveys information about an employee’s immigration status or authorization to work within the United States. Still, the “no-match” letters may also indicate that an individual provided false identification.

Employers must be cautious when dealing with a “no-match” letter. An overreaction—such as requesting excessive or unnecessary documentation from employees—can violate the anti-discrimination provisions in federal law, which generally prohibit discriminatory employment practices because an employee’s national origin, citizenship, or immigration status. Thus, an employer should not attempt to do any of the following after receiving a “no-match” letter:

  • Take any adverse employment action against an employee subject to a “no-match” letter, including—but not limited to—firing, demoting, cutting hours, reducing the wages of, or writing up such an employee;
  • Follow different procedures for different classes of employees based on the employees’ respective national origin or citizenship status;
  • Require the employee immediately provide a written report that the SSA verified the requisite information (primarily because the SSA may not ever provide such a report);
  • Immediately reverify the employee’s eligibility to work by requesting a new Form I-9 based solely on the “no-match” letter; or
  • Require an employee produce any specific I-9 documents, such as a Social Security card, to address the no-match issue.

The question then becomes: How should employer respond to a “no-match” letter?

Unfortunately, the letters usually do not identify the employees for whom the SSA finds there is a “no-match” issue. To determine which employees’ information is at issue, an employer must first register with the SSA’s Business Service Online website. Through that website, an employer can then compare the employee names and SSN information in its files against the SSA’s records to make sure the information was correctly submitted, and no typographical error occurred. If an employer determines it misreported the information, it can issue a correction through an updated IRS Form W-2C. An employer generally has 60 days from receipt of the “no-match” letter to issue a Form W-2C to make corrections if that is the cause of the “no-match.”

Should an employer determine that it properly reported the information, then the employer will need to further investigate and may want to seek guidance from counsel before taking further action.

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