Work Knowledge Blog

Work Knowledge Blog

Get Ready for Increased On-Site FMLA Compliance Investigations

Posted in FMLA

The U.S. Department of Labor FMLA Branch Chief Helen Applewhaite recently announced the agencies’ renewed focus on conducting more on-site compliance investigations (“pivotal year for FMLA enforcement”). The DOL’s stated intent is two-fold: (1) to increase its investigators’ access to information; and (2) save time by reviewing the employer’s documents and interviewing employees on-site.

A DOL spokesman mentioned key focal points the agency is most concerned about, a list that includes exactly the type of violations that we frequently see employers having difficulty understanding and complying with. Examples include:

Refusing to authorize FMLA leave for an eligible employee; Discouraging a worker from using FMLA leave; Making someone’s request for or use of FMLA leave a negative factor in employment actions, such as hiring, promotions or disciplinary actions; and Systemic violations.

The best advice for employers in light of the DOL’s announcement that they will be increasing on-site investigations is, with the assistance of outside counsel, conductContinue Reading

If it Passes, What Exactly Will the Proposed FMLA Enhancement Act Enhance?

Posted in FMLA

On Feb. 5, 2014, Rep. Carolyn Maloney (D-NY) reintroduced a Bill, that if passed, would extend both who is covered and what is covered under the Federal and Medical Leave Act.

Who:  Extending leave protections under the FMLA to employers with 25 or more employees, a lower threshold than the current 50 or more employee requirement.  Thus, the Bill would bring many small employers under the FMLA.

What is covered:  At this time, the FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons.  The proposed expansion would allow employees to use leave for reasons that:

Do not necessarily rise to the level of a serious health condition; or In some cases, are not medically related at all. The Bill proposes up to four additional hours of FMLA leave per month of unpaid Parental Involvement and Family Wellness, to participate in or attend activities sponsored by a school or communityContinue Reading

New Definition of “Spouse” would Expand FMLA Benefits to More Same-Sex Married Couples

Posted in FMLA

Two weeks ago, the Secretary of Labor announced a proposed rule that would extend the benefits and protections of the Family and Medical Leave Act (“FMLA”) to employees in same-sex marriages, regardless of where they live. Currently, only spouses in a same-sex marriage who live in a state that recognizes same-sex marriage are entitled to FMLA leave to care for their spouse. Thus, a same-sex couple who was legally married in Rhode Island (which recognizes same-sex marriage), but who lives in Tennessee (which does not), is not afforded the protections and benefits of the FMLA for leave to care for their spouse. This is often called the “state of residence rule.”

The new definition of “spouse” that the Secretary of Labor proposed last Friday would include spouses in legally recognized same-sex marriages, regardless of where the couple resides. Put another way, as long as the employee seeking Continue Reading

President’s Recess Appointments Exceed Authority Based on Supreme Court Decision

Posted in NLRB

After months of anticipation, the United States Supreme Court today issued its opinion in the Nat’l Lab. Relations Bd. v. Noel Canning case.  No. 12-1281, slip op. at 1 (June. 26, 2014).  By way of background, on January 2, 2012, President Obama made three appointments to the National Labor Relations Board while the Senate “was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by ‘pro forma session[s],’ with ‘no business . . . transacted,’ every Tuesday and Friday through January 20, 2012.”  Id. at 2.  In a unanimous decision, the Court found that President Obama exceeded his authority by making these appointments.  Id.

Cutting to the chase, what does this mean for employers? This decision calls into question the validity of the decisions from the National Labor Relations Board since the January 2, 2012 recess appointments.  The new five member Board, includingContinue Reading

The FCRA: A Battle on Two Fronts for Employers

Posted in EEOC, FCRA, OSHA, Policies & Practices

As if employers were not already faced with enough headaches from employment-specific federal statutes, such as the Occupational Safety and Health Act or the Fair Labor Standards Act, they also have to consider the effect of other statutes, including the Fair Credit Reporting Act (“FCRA”).  The FCRA applies to any entity that uses “consumer report[s]” for “employment purposes.”  15 U.S.C. § 1681b(b).  “Employment purposes” means use of the reports for hiring decisions on job applicants, as well as for promotion or termination decisions on current employees.  See 15 U.S.C. § 1681a(h).  And the term “consumer report” includes such routine investigative documents as credit reports, criminal checks, and even motor vehicle background checks.  See 15 U.S.C. § 1681a(d)(1)(B).

Given this broad application of the FCRA in the employment context, navigation of the risks and requirements associated with the FCRA is often difficult and dangerous for employers—especially withoutContinue Reading

President Obama to Issue Executive Order on LGBT Workplace Protections

Posted in Discrimination

The White House announced on Monday that the President will sign an executive order restricting all federal contractors from discriminating against employees and applicants on the basis of sexual orientation and gender identity. It is an historic expansion of workplace rights affecting gay and lesbian rights in the workplace. The Executive Order is expected to be issued in the next several weeks.

This executive order is a partial solution to the inability of Congress to pass the long debated Employment NonDiscrimination Act (“ENDA”) which would extend Title VII protection to gay, lesbian and bisexual workers and applicants. This Executive Order will only apply to federal contractors.

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Don’t be like Donald Sterling: Pay Your Interns

Posted in Wage & Hour

The Donald Sterling saga continues to teach employers—by way of bad example—important lessons for managing employees. While Sterling’s racist comments and desperate attempts to retain ownership of the L.A. Clippers continue to grab headlines, employers who hire unpaid interns may be facing a lawsuit similar to a less publicized lawsuit filed yesterday against the beleaguered owner (at least for now) and the L.A. Clippers. Two days ago, a former intern for the Los Angeles Clippers filed a proposed wage-and-hour class action in federal court against Donald Sterling and the LA Clippers alleging that Sterling and the Clippers misclassified him and others as unpaid interns in an effort to illegally reduce labor costs. The lawsuit states that “Plaintiff’s unpaid work for defendants is part of a broader trend where employees are being misclassified as unpaid ‘interns’ in an effort by employers to avoid paying wages as required by state laws andContinue Reading

Being a HERO: Six Things You Need to Know About the Houston Equal Rights Ordinance

Posted in Discrimination, Policies & Practices

It’s been described as “an opportunity for sexual predators to have access to our families” and “an historic non-discrimination ordinance.” But rhetoric aside, the Houston Equal Rights Ordinance (“HERO”) is the law in the Bayou City. So what’s it mean for your business? You can (and should) read the complete ordinance, but here are six things you need to know:

1.  Even if you’re not in Houston, a similar ordinance may already apply.

For all the controversy surrounding its passage, HERO brings Houston in line with many of Texas’s other large cities. San Antonio, Dallas, Austin, and Fort Worth all have similar ordinances already.

2. The “bathroom provision” may still be an open issue.

The city council removed a much-publicized “bathroom provision” that would have allowed transgender people to use the restroom of the gender with whichContinue Reading

Union and Non-Union Employers Must Review Their Employee Handbooks in Light of Recent NLRB Developments

Posted in NLRB, Policies & Practices

The National Labor Relations Board recently challenged many common employee handbook provisions on the grounds that they violate employees’ protected rights under Section 7 of the National Labor Relations Act.  The challenged handbook provisions include restrictions on social media; restrictions on discussions of wage, benefits and related information; at-will provisions; and standards of behavior policies.

To learn more about the NLRB challenges, along with ways you can protect yourself from NLRB scrutiny, read our recent client alert found here.

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Discounted Damages Through Fluctuating Work Week

Posted in Wage & Hour

Wage and hour litigation has been on a meteoric rise and is unlikely to slow in 2014. Nationally, employers paid over $245 million in 2013 to resolve wage and hour cases. In Texas, Fair Labor Standards Act (FLSA) cases continue to be among the most commonly filed in federal courts. Many of these cases allege plaintiffs are due overtime after being misclassified as exempt employees.

Two recent rulings by the U.S. Court of Appeals for the Fifth Circuit define an employer’s ability to resolve these cases at a discount by applying the fluctuating work week (FWW) method of calculating damages. These savings can be significant — for example, with an employee who earns $45,000 annually and averages 45 hours per week, an employer can save $15,000 over the three year look-back permitted by the FLSA by applying this method — and multiply when considered in the common context of collective actions.

TheContinue Reading