Tag Archives: employer policies

UPDATED: Addressing COVID-19: Employment Law Update and General Guidance for Employers

This post has been updated as of March 19 with the latest information available. Updates are noted in bold red text throughout. 

Given the ongoing concerns about the COVID-19 coronavirus (“COVID-19”) epidemic, employers in all fields want some practical guidance on how to address this situation. Regardless of field, employers should understand that there is a patchwork of intersecting laws that impact decisions they are and will be making as matters develop, touching on disease prevention safety steps, workplace attendance, wage and hour issues, leave rights and obligations, healthcare privacy, discrimination, harassment, and potential short-term layoffs.

We offer this general FAQ for the time being, which is based on the best information available as of today, March 19, 2020. It applies only to U.S. employers, primarily in Florida. Each situation will be fact-specific. As such, this FAQ may not fully address all questions an employer may have. For particular questions, we are happy to assist employers as they navigate through these turbulent times.

VALUABLE WEBSITES FOR EMPLOYERS TO MONITOR

The information we provide in this FAQ is as up-to-date as can be when it is posted and we will continue to provide updates as new information becomes available. The answers provided below represent a general overview; and moreover, the understanding of the risks COVID-19 present individuals and businesses is being updated constantly. Below are links to various websites that we understand present the most up-to-date information along with additional details on more specific situations. Employers should consider monitoring these websites as appropriate for their situation.

  1. CDC COVID-19 Website
  2. CDC’s Most Recent Guidelines for 15 Days to Slow the Spread (Issued March 16, 2020)
  3. CDC’s Frequently Asked Questions
  4. CDC’s Interim Guidance for Businesses and Employers
  5. CDC’s Environmental Cleaning and Disinfection Recommendations
  6. CDC’s Travel and Country Risk Assessments
  7. CDC’s Information for Healthcare Professionals
  8. CDC’s Information for Healthcare Facilities (including Long-Term Care Facilities)
  9. Occupational Safety and Health Administration Website on COVID-19
  10. OSHA’s Guidance on Preparing Workplaces for COVID-19
  11. Equal Employment Opportunity Commission Website on COVID-19 [Website updated with new information on March 18, 2020.]
  12. EEOC’s Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
  13. Department of Labor Website on COVID-19
  14. DOL’s Guidance on COVID-19 and the Fair Labor Standards Act
  15. DOL’s Guidance on COVID-19 and the Family and Medical Leave Act
  16. DOL’s Fact Sheet #17G: Salary Basis Requirement and Part 541 Exemptions Under the FLSA (Addressing circumstances in which an employer may make deductions from pay)
  17. Florida Department of Health General Website on COVID-19
  18. Florida Department of Health’s Interactive Website on COVID-19 Data and Surveillance
  19. Florida Department of Health’s Collection of Executive Orders addressing COVID-19
  20. Florida Department of Economic Opportunity Press Release on Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19
  21. State of Florida Business Damage Assessment Website
  22. State of Florida Emergency Bridge Loan Program Website

Additionally, employers should carefully pay attention to any new legislation enacted by the federal, state, or local governments, which may affect employee’s rights in the face of COVID-19.

IMPORTANT LEGISLATION [NEW SECTION ON MARCH 19, 2020]
On March 18, 2020, Congress passed the President signed the Families First Coronavirus Response Act, or H.R. 6201. Our team is actively reviewing this new law and will offer guidance in a separate post.

CURRENTLY KNOWN INFORMATION ABOUT COVID-19

What symptoms does an individual with the COVID-19 coronavirus exhibit?

Generally, according to the Centers for Disease Control and Prevention, individuals with COVID-19 manifest symptoms as a mild to severe respiratory illness with fever, cough, and difficulty breathing, and these symptoms may appear in as few as two days or as long as 14 days after initial exposure.

SAFETY STEPS FOR EMPLOYERS

What’s the main workplace safety guidance employers should be following?

As noted above, OSHA recently published Guidance on Preparing Workplaces for COVID-19, which identifies various steps employers can take to help protect their workforce. OSHA divides workplaces and operations into four risk zones that determine the best work practices and precautions an employer should take:

  1. Very High Exposure Risk:
  • Healthcare employees performing aerosol-generating procedures on known or suspected pandemic patients
  • Healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients
  1. High Exposure Risk:
  • Medical transport of known or suspected pandemic patients in enclosed vehicles
  • Healthcare delivery and support staff exposed to known or suspected pandemic patients
  • Performing autopsies on known or suspected pandemic patients
  1. Medium Exposure Risk:
  • Employees with high-frequency contact with the general population (such as schools, high population density work environments, and some high-volume retail)
  1. Lower Exposure Risk (Caution):
  • Employees who have minimal occupational contact with the general public and other coworkers (such as office employees)

What steps can an employer take now to minimize risk of transmission?

Encourage employees to take the same steps they would be taking to avoid the common cold or seasonal flu: Avoid exposure. According to federal guidance, employers should tell employees:

  • Wash hands often with soap and water for at least 20 seconds, and if not available, use an alcohol-based hand sanitizer;
  • Avoid touching eyes, nose, and mouth with unwashed hands;
  • Avoid close contact with others, especially sick individuals;
  • Refrain from shaking hands;
  • Cover one’s mouth when coughing, preferably with one’s elbow;
  • Sneeze with a tissue, then throw the tissue in the trash;
  • Clean and disinfect frequently touched objects and surfaces—although it’s worth noting that some disinfectant wipes require that the wiped surfaces air dry before they are effectively disinfected; and,
  • Most importantly, stay home when sick.

Additionally, an employer should likely do the following:

  • Monitor local information about COVID-19 in the community;
  • Know the signs and symptoms of COVID-19 and what to do if staff become symptomatic at the worksite;
  • Review, update, or develop workplace plans to include liberal leave and telework policies;
  • Consider 7-day leave policies for people with COVID-19 symptoms;
  • Consider alternate team approaches for work schedules;
  • Encourage staff to telework (when feasible), particularly individuals at increased risk of severe disease;
  • Work with all local employers to ensure all workers have the financial support to stay home with any respiratory symptoms;
  • Encourage personal protective measures among staff (e.g., stay home when sick, handwashing, and respiratory etiquette as noted above);
  • Clean and disinfect frequently touched surfaces daily;
  • Ensure hand hygiene supplies are readily available in building, preferably at entrances to the workplace and work areas;
  • Limit large work-related gatherings (e.g., staff meetings, after-work functions);
  • Cancel non-essential work travel; and,
  • Cancel work-sponsored conferences, tradeshows, etc.

Please note that there is specific advice for healthcare settings and other groups. Such employers should review CDC guidance along with state and local public health officials’ guidance.

May an employer ask an employee to stay home or leave work if they exhibit COVID-19 symptoms? [Answer Updated on March 19, 2020]

Yes, according to the EEOC, employers are permitted to ask an employee to seek medical attention and get tested for COVID-19. Likewise, the EEOC confirms, based on the CDC and state and local public authorities’ declaration states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.

Still, it pays to avoid panic, and supervisors should understand that they should not overreact when an employee appears for work with potential COVID-19 symptoms—they are simply enacting safety precautions.

More specifically, an employer should focus on the following symptoms:

  • Fever;
  • Chills;
  • Cough (especially a dry cough);
  • Shortness of breath; and/or
  • Sore throat.

Based on the available guidance, the most common COVID-19 symptoms are fever and a dry cough—albeit not all individual’s experiences with COVID-19 are uniform.

Beyond the symptoms, employers should also consider certain risk factors that the CDC has identified based on travel or contact with an individual suffering from COVID-19. The risk assessment is available at this link.

What should we do if an employee tests positive for COVID-19?

CDC guidance suggests that employees should send home all employees who worked closely with that employee for fourteen days to limit the spread of infection. Before the employee departs, ask them to identify all individuals who worked in close proximity (about six feet) with them in the previous two weeks to get a full list of those who likely should be sent home. When sending the employees home, an employer should not identify the infected employee. Identifying the employee potentially violates privacy and confidentiality laws.

Next, the employer also should inform their building management so they can take whatever precautions they deem necessary. The employer should ask their cleaning staff to provide a deep cleaning of the affected work areas.

Do employers have to document any confirmed COVID-19 cases?

According to recent OSHA guidance, a covered employer should record any COVID-19 related illness in its OSHA 300 log if the following criteria are met:

  • An employee has a confirmed case of COVID-19;
  • The employee’s confirmed case of COVID-19 is considered work-related per 29 CFR 1904.5 (i.e. if, outside certain exceptions, an exposure in the work environment caused or contributed to the resulting illness or aggravated a pre-existing injury or illness); and,
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

Should an employer take an employee’s temperature at work to determine whether he or she might be infected? [ANSWER UPDATED ON MARCH 19, 2020]

Yes, according to the EEOC, an employer may take an employee’s body temperature. The Americans with Disabilities Act restricts medical examinations that an employer can make. The EEOC considers taking an employee’s temperature to be a “medical examination.” But, according to new EEOC guidance, “because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

Please note that there remains separate guidance issued by the CDC for healthcare providers, healthcare facilities, and long-term care facilities, which can be found here and here, on how to handle body temperature checks.

Finally, it remains the case that an infected individual may not necessarily exhibit a fever. That may ultimately make temperature checks ineffective.

 

Can an employer force an employee to come to work even if they fear catching COVID-19?

Employees are only entitled to refuse to work if they believe they are in imminent danger, which means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [law.]”

Importantly, the threat must be immediate or imminent. An employee must believe that death or serious physical harm could occur within a short time. With COVID-19, requiring travel to China or Italy or to work with patients in a medical setting without personal protective equipment may meet this definition. Otherwise, most work conditions likely would not meet the elements required for an employee to refuse to work.

Still, this guidance is general. Employers must determine whether the circumstances have shifted such that a workplace places employees in imminent danger before determining whether they may lawfully require employees to come to work. It may still be best to allow flexibility to maintain employee morale. An employer may consider allowing employees to use any available leave or allow remote work. Further still, employers may wish to allow employees to go into the negative in their sick leave bank as a special allowance to address this situation. Of course, not all employers can make special allowances due to their financial condition, and they should handle it as best as they are able.

May an employer require medical certification before an employee returns to work? [ANSWER UPDATED ON MARCH 19, 2020]
According to the EEOC, employers may ask for a doctor’s note certifying an employee’s fitness for duty when an employee returns to work related to COVID-19. But, the EEOC notes that healthcare professionals will likely be overwhelmed, which will significantly delay such a discharge. The CDC has encouraged employers not to require “a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.” Instead of a certification, the EEOC suggests that “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”

If an employer is hiring, may it screen applicants for symptoms of COVID-19? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer—as long as it does so for all entering employees in the same type of job.

May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, any medical exams are permitted after an employer has made a conditional offer of employment. But, again, it is worth noting that there is some indication that not all infected individuals exhibit a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to current CDC and EEOC guidance, yes, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
Noting current CDC guidance, the EEOC advises employers that this individual cannot safely enter the workplace. And as such, an employer may withdraw a job offer from such an individual.

Can an employer force an employee to cease discussing whether the worksite is unsafe because of potential COVID-19 exposure?

Likely no. The National Labor Relations Act protects non-supervisory employees—union and non-union alike—to engage in “protected concerted activity for mutual aid or protection.” Such activities include circumstances in which two or more employees act together about working conditions, participating together to refuse to work in unsafe conditions, and/or joining with co-workers to talk to the media about problems in the workplace. Employees are generally protected against discipline or discharge for engaging in protected activities.

EMPLOYEE TRAVEL

May an employer impose consequences, including unpaid leave, for an employee who engages in activities contrary to CDC recommendations such as going on a cruise or traveling outside of the US?

It depends. Employers in the healthcare or long-term care industries should consult the requirements specific to their industries.

All other employers may take action to protect their workplaces and customers from employees who engage in conduct that is determined to increase the risk of spreading COVID-19, and particularly if the conduct is contrary to CDC recommendations. If an employee has traveled to a Level 3 country, the employee can be required to remain at home. However, this is a fact-specific and quickly changing area. If the conduct does not involve a clear CDC recommendation, and the employer intends to prohibit the travel or suspend the employee without pay, the employer should consult counsel as to the specifics. The reasonableness of the employee’s activities and the employer’s response will depend on the level of risk or recommendation by the CDC at the time of travel and desired return to work and the nature of the work. Regardless, the employer should take caution to not regard such an employee as having a disability or illness because of the conduct, should protect the employee’s confidentiality of health information, and should ensure that the employer’s reaction is not and does not appear to be related to an employee’s protected characteristics, such as national origin, age, or pregnancy.

WAGE AND HOUR ISSUES

Are employers required to pay employees who are not working?

The Fair Labor Standards Act (FLSA) address minimum-wage and overtime. Generally, the FLSA does not require an employer pay employees who are not working. But, an employer may have a legal obligation to keep paying employees because of an employment agreement, a collective bargaining agreement, or some other state law.

Employers should consider salary issues with exempt employees. If an exempt employee performs at least some work during the workweek, the FLSA regulations will require that the employer pay the employee his or her entire salary for that workweek. There can be exceptions—for instance, according to DOL guidance, an employer does not have to pay an exempt employee who decides to stay home and performs no work even when the office is open.

Of course, employers may wish to consider the public relations aspect of not paying employees in this situation. Given adverse media related to COVID-19, an employer’s reputation could be damaged.

May an employer apply vacation or PTO leave to COVID-19-related absences?

Presuming no agreement or state law prevents it (which Florida law does not), yes, an employer may allow an employee to apply leave for COVID-19 related absences. Note, however, that the salary requirements for exempt employees may affect the use of leave under various circumstances.

When allowing remote work, what guidance should employers provide non-exempt employees?

In situations where remote work becomes required, employers should make sure they remind non-exempt employees about the following key points:

  • The non-exempt employee’s time records should accurately reflect all time actually worked.
  • Overtime is prohibited unless the employee’s supervisor approved the overtime beforehand.
  • Working unauthorized overtime constitutes misconduct and subjects the employee to discipline.
  • The option for remote work is temporary under the circumstances; the employer may end any remote work situation at any time and for any reason.

EMPLOYEE LEAVE AND ADA ISSUES

Does the Family and Medical Leave Act apply to COVID-19?

The FMLA may protect employees requesting leave if they are eligible. No law, however, prevents an employer from voluntarily extending an employee’s leave without any legal obligation to do so.

Still, employees are not entitled to FMLA leave to stay home to avoid catching COVID-19. We suggest that an employer may wish to consider leave requests depending on these circumstances. If there are questions, speak with legal counsel to try to avoid potential litigation.

Are there any ADA-compliant questions employers can ask their employees to determine their respective ability to work during a pandemic?

Yes, according to the EEOC, an employer can ask that employees complete the following survey to determine potential non-medical reasons for absences during a pandemic (e.g. curtailed public transportation or school or childcare closures):

EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

  • If schools or day-care centers were closed, you would need to care for a child;
  • If other services were unavailable, you would need to care for other dependents;
  • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
  • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

There may, depending upon an employer’s situation, be additional ADA-compliant questions. Any other questions should be reviewed with counsel.

During a pandemic, may an ADA-covered employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?

Generally, no. However, if the pandemic becomes severe or serious according to local, state, or federal health officials, ADA-covered employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only then may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to determine which employees are at a higher risk of complications.

HIPAA ISSUES

How does COVID-19 affect HIPAA privacy rules?

They are not affected. HIPAA rules remain in effect even with a pandemic.

How should employers treat medical information?

Generally, employers should treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with their group health plan.

Yet, an employer may share the protected information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. Before doing so, attempt to get the individual’s written or verbal permission to disclose this information. When unable to do so, the protected information can be shared if doing so would be in the individual’s best interests. In addition, an employer can disclose this protected information to authorized personnel without permission if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

What obligations do employers have under the HIPAA privacy rules if contacted by health officials about one of our employees?

An employer should only disclose information to authorized personnel, and only after they have properly been identified.

WORKERS’ COMPENSATION ISSUES

If an employee contracts COVID-19 at the workplace, does the employee have a workers’ compensation claim?

It depends. When the employee is a healthcare worker or a first responder, then an employee who contracts COVID-19 likely has a workers’ compensation claim—albeit subject to specific state law on the subject.

For other types of employees, the answer is not clear-cut and depends on the situation. Generally, an employee must show they suffered a work-related injury or “occupational disease,” and that the injury or disease was proximately caused by their employment to establish a workers’ compensation claim.

In this instance (again subject to state law), COVID-19 likely will not be considered an injury. Rather, it likely will be analyzed under the “occupational disease” framework. Under that framework, an employee usually has to show that (1) the disease arose out of and was in the course of employment; and (2) the disease arose out of or was caused by conditions peculiar to the work, creating a greater degree of risk for contracting the disease compared to the general public. This determination will likely be made on a case-by-case basis, and it is difficult to tell in advance whether non-healthcare workers or first responder employees will be able to establish such an “occupational disease.”

DISCRIMINATION OR HARASSMENT ISSUES

Does an employer have any discrimination or harassment issues related to COVID-19?

As in any other situation, an employer cannot apply disparate treatment to employees based on their nation of origin. Employers should watch to make sure no employees are being subjected to disparate treatment or harassed in the workplace because of their national origin. However, note that if an employee, regardless of their race or national origin, was recently in China, Iran, or Italy and shows COVID-19 symptoms, employers may have a legitimate reason to bar that employee from the workplace.

SUSPENSION OF OPERATIONS AND LAYOFF ISSUES

If an employer is forced to suspend operations because of COVID-19 and the aftermath, does the employer have any legal obligations due to the suspension?

Potentially, yes. If an employer is covered by the Worker Adjustment and Retraining Notification (WARN) Act, which applies to employers with 100 or more full-time employees, they may have to provide certain notices to affect employees if there has been a “plant closing” or “mass layoff,” regardless of reason. Please note that these quoted terms are special, nuanced words with specific meanings defined by federal regulations. They do not cover every single layoff or plant closure.

What are a “plant closing” and a “mass layoff”?

A “plant closing” is defined as the permanent or temporary shutdown of a site that results in an employment loss for 50 or more employees during any 30-day period. A site can include one or more facilities or operating units at single location. On the other hand, a “mass layoff” is a reduction-in-force other than a plant closing that results in an employment loss at a single site for 500 or more employees, or at least 50 or more employees and at least 33% of the employer’s active workforce.

Also, for purposes of WARN, a layoff must last at least six months. Of course, in situations like this, it is hard to know how long a layoff may occur.

What type of notice must employers provide under WARN?

Under WARN, employers must provide at least 60 calendar days of notice before a covered plant closure or mass layoff. Also, under WARN, employers must provide notice to unions and certain local government entities along with certain specified information.

Still, WARN has a specific exception when layoffs occur due to unforeseeable business circumstances. It is possible this provision could apply to COVID-19—albeit there is no certainty and this exception is repeatedly litigated.

Even then, an employer still must provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” Stated differently, after an employer evaluates the immediate impact of COVID-19 upon its business and workforce, it likely must then provide specific notice to affected employees. The notice must explain why the employer could not provide notice for the statutorily-required period. In this instance, the explanation would be because of how COVID-19 was not foreseeable.

Keep in mind that some states have “mini-WARN” laws that may apply, but Florida is not one of them.

Will the DOL enforce WARN given the seemingly-unprecedented outbreak?

Unknown at this time. But employees and lawyers representing them may still bring a suit even if the DOL does not.

Consequently, it is recommended that employers carefully evaluate their current situations to determine if there has been or will be a triggering event under WARN. If so, employers should consider providing as much notice to affected employees as possible given the circumstances.

We will continue to provide additional updates as new information becomes available.

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

Coronavirus and the Workplace

wash hands

With fears of COVID-19 or Coronavirus Disease mounting, businesses and employers should not only understand how the disease could affect their workplaces, but also take steps to minimize any possible impact.  To assist with this objective, the United States Centers for Disease Control and Prevention (CDC) issued an Interim Guidance for businesses and employers in non-healthcare settings. Other guidance directed at specific industries, such as healthcare, airlines, and ship industry have also been issued.

Below are several strategies that employers can implement now:

  • Actively encourage sick employees to stay home, especially those with symptoms of acute respiratory illness, until free of fever (100.4˚F or greater) and any other symptoms for at least 24 hours without using fever-reducing or other symptom-altering medicines.
  • Do not require a healthcare provider’s note to validate the illness as medical facilities may be extremely busy and unable to provide documentation timely.
  • Anticipate employees may need to stay home to care for sick family members.
  • Send home sick employees upon arrival or when symptoms appear.
  • Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees.
  • Provide tissues, alcohol-based hand sanitizer, and soap and water.
  • Perform routine environmental cleaning, including frequently touched surfaces, like workstations, desks, countertops, doorknobs, keyboards, remote controls, and telephones.
  • Advise employees before traveling to check CDC’s Traveler’s Health Notices.
  • Adopt additional measures to respond to employees or their family members who have COVID-19:
    • Notify employee’s supervisor.
    • Inform fellow employees of their possible exposure.
    • Refer ill and exposed employees to a CDC guidance for how to conduct a risk assessment.
    • Maintain sick employees’ confidentiality as required by Americans with Disabilities Act.
  • Design infectious disease outbreak response plan.
  • Prevent discrimination in the workplace—do not make determinations of risk based on race or national origin.

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

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

No Fooling: DOL Proposes New Rule to Determine Joint-Employer Status

As a rule of thumb, skepticism is in order for any news blasted out on April Fool’s Day. For that reason, you could easily believe that the U.S. Department of Labor (DOL) was joining in the tomfoolery this year when it issued a new Notice of Proposed Rulemaking on April 1, 2019 to address joint employment under the Fair Labor Standards Act (FLSA), but, that wasn’t the case.

Through its April 1, 2019 notice, the DOL seeks to revise regulations on joint employment issues. A joint employer is any additional individual or entity who is equally liable with the employer for the employee’s wages, including minimum wages and overtime. Presently, the regulations state that multiple persons or companies can be joint employers if they are “not completely disassociated” with respect to the employment of an employee. The phrase “not completely disassociated” is not clearly explained in the regulations, which has led to thorny issues when dealing with the employees of subcontractors, franchisees, and similar relationships.

To address such issues, the DOL proposes a four-factor analysis that considers whether the employer actually exercises the power to:

  • Hire and fire an employee;
  • supervise and control an employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The DOL indicates that there are other factors that should and should not be considered. It also clarifies certain business models and practices or contractual language that does not make a joint employer status more or less likely. A Fact Sheet issued with this proposed rule does a fair job of summarizing the other factors. For example, the DOL indicates that just because a company reserves the right in a contract to exercise control over another company’s workers does not—by itself—make a company more or less likely to be considered a joint employer. Rather, a company must actually exercise the contractual control to become a joint employer. Likewise, the DOL notes that just because a company can require another contracting party to institute anti-harassment policies, workplace safety measures, or wage floors does not make it more or less likely the two companies are joint employers.

The April 1, 2019 notice began the notice-and-comment process. The DOL will accept comments from interested parties for 60 days. The public will be able to provide electronic comments at www.regulations.gov (after searching for RIN no. 1235-AA26) or via mail addressed to:

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

(identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA26).

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

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

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

Arbitration Update: Eleventh Circuit Finds in Favor of Florida Employers

Florida employers are beginning to benefit from recent U.S. Supreme Court and National Labor Relations Board (NLRB or Board) rulings.  On June 26, 2018, the federal Eleventh Circuit Court of Appeals issued two decisions in favor of Florida employers in which it rejected NLRB rulings that the employers had violated the National Labor Relations Act (NLRA). The cases are Everglades College, Inc. v. NLRB and Cowabunga, Inc. v. NLRB.

Applying the Supreme Court’s Epic Systems decision (for further information on Epic, click here), the Eleventh Circuit held in both cases that the inclusion of class and collective action waivers in these employers’ mandatory arbitration agreements did not violate the NLRA. Additionally, relying on the Board’s Boeing decision (for more information, on Boeing click here), the Eleventh Circuit vacated the NLRB’s holdings that the arbitration agreements were unlawful because employees could “reasonably believe that they were prohibited from filing unfair labor practice charges with the NLRB.”

In Boeing, the NLRB retroactively changed the rationale it used to evaluate the lawfulness of facially neutral employee policies, thus eliminating the broadly applied “reasonably believe” standard that prohibited any rule that could be interpreted as covering protected activity. Without that standard, the Board could not defend its prior decisions in the appeals. Therefore, the Eleventh Circuit remanded the remaining issues in the cases to the NLRB so that it can apply its new Boeing rationale, which does not interpret ambiguities against the drafter and does not ban all activity that could conceivably be included in generalized provisions.

Even with the NLRB General Counsel’s recent memo addressing the application of the Boeing standard (for more on the memo, click here), it is unclear how the Boeing rationale will apply to arbitration agreements. Regardless, employers should remain hopeful as the new standard provides for a more balanced review.

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

[Editor’s Note: Williams Parker attorney Gail E. Farb represented the employer in the Everglades College, Inc. case cited above.]

An Employer’s Response to #MeToo

If you did not know the name Harvey Weinstein prior to October 2017, you should now, following the well-publicized allegations against him of sexual assault and harassment spanning decades. The focus on the allegations against Weinstein has resulted in women and men sharing their personal accounts of sexual assault and harassment. Often these personal accounts of improper sexual behavior are tied to the workplace and are prompting a national conversation of the abuse of power in the workplace. Many of these accounts are being made with the hashtag #MeToo. Even persons not willing to share the specifics of their experiences have been using #MeToo to confirm that they were indeed victims. The hashtag itself is not a specific call to action but instead aims to raise awareness of the magnitude of the problem of sexual assault and harassment.

Improper conduct by those in positions of power in several large companies is now being highlighted, and high-ranking officials in several of those companies are having to answer for their conduct, even if such conduct is outside of a relevant limitations period for a legal claim. On November 1, 2017, NPR’s senior vice president for news resigned on the heels of allegations of sexual harassment against him by several women, including two that, according to the Washington Post, claim that “he unexpectedly kissed them on the lips and stuck his tongue in their mouths.” Questions are now being asked regarding when NPR, and other companies, first learned of allegations of harassment and why firmer action was not taken by the company.

Due to this intense focus on harassment in the workplace, companies may want to evaluate if the policies and procedures that they have in place are sufficient, if their leadership truly understands what is appropriate behavior, and if employees are familiar with how to make complaints. To do this employers should consider the following:

  • Review written policies to ensure they are easily understood and provide the proper protections for employees
  • Conduct management training regarding harassment and appropriate behavior
  • Conduct employee training to ensure employees are aware of policies in place to protect them and understand the reporting procedures

Employers should anticipate that, with the increased focus on sexual misconduct, an issue may come up within their own companies. Understanding the issue and being prepared to provide a proper response is usually a better option for employers than merely responding to an issue when it arises.

You may also want to read our past posts relating to sexual harassment.

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

Offensive Facebook Posts May Be Protected Speech

Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired for posting highly offensive comments about his supervisor. Although this case, National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017), involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a breakroom conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee’s employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.

In Pier Sixty, the employee posted on Facebook that his supervisor is a “NASTY MOTHER F—ER” and “F—his mother and his entire f—ing family!!!”  The post criticized his supervisor’s communications style, saying, “…don’t know how to talk to people!!!!”  The post also included a pro-union statement, “Vote YES for the UNION!!!!!!”

The court weighed the protections (here, concerted activity) versus how abusive or “opprobrious” the comments were. The court reviewed the context of the statements, including that the employer was found to have permitted past vulgarity and to have engaged in other efforts to impede unionizing efforts. Commenting that these posts fall on the “outer bounds” of protected activity, the court declared the posts to be within the bounds of protected concerted activity and required the employer to bring the discharged employee back to work.

Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying on at-will status.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628