Safety Matters

By Kathleen J. Jennings (kjj@wimlaw.com)

When it comes to safety in the workplace, there are some obvious hazards that anyone should be able to identify and correct. One of them is access to exits. However, according to the Washington Department of Labor and Industries, the folks at Dollar Tree have not gotten that message. That agency has issued a proposed $503,200 fine for alleged safety problems in a single store. Most the violations involved storing merchandise in stock rooms where aisles and exit ways were reportedly blocked or too narrow and boxes were haphazardly stacked. Furthermore, there were repeat violations, which increased the amount of the proposed fine. In a written statement, Anne Soiza, assistant director for occupational safety at the Washington Department of Labor and Industries stated: “Even after multiple large fines, it appears this company has not gotten the message to ensure their safety and health system is working in every Washington store location.”

This is an issue that can and should be addressed by a comprehensive safety program that creates and supports a culture of safety. That program and the attendant training should empower employees to take action when they see obvious safety hazards such as blocked exits. In the absence of that culture, you can expect employees to take their safety complaints to a state or federal safety agency, which will conduct an inspection and issue a monetary fine.

The Bottom Line: A good safety program is priceless. Not only does a good safety program prevent workplace injuries and accidents and helps to control insurance and workers’ compensation costs, but it also shows employees that the employer takes their personal safety seriously, which enhances employee morale and retention.

Do you need a safety program or safety audit? Contact Larry Stine for more information.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Responding to Social Security No-Match Letters: What Employers Need to Know

By Kathleen J. Jennings (kjj@wimlaw.com)

Since March 2019, the Social Security Administration (SSA) has sent out approximately 575,000 Employer Correction Notices, generally known as “No-Match” letters. What is a “No-Match” letter? It is a letter from the SSA informing an employer that it has at least one employee whose name and Social Security number combination on a filed W-2 do not match SSA records. The letters inform employers that they need to take corrective action but warn them not to “use this letter to take any adverse action against an employee.”

In a new twist, the recently sent letters instruct employers to register for the agency’s Business Services Online. This raises some concerns about whether SSA will share online information with other federal agencies, such as ICE. For now, however, SSA says that such sharing is not likely because data from W2s is tax information and disclosure is governed by the Internal Revenue Service.

What should an employer do if it receives a No-Match letter for one of its employees?

  • First, check your employment records to see if there is a typographical error. Did someone input a number incorrectly?
  • Second, if there is no error on the employer’s part, then the employer should inform the employee of the situation and ask the employee to bring his/her social security card to an HR representative for verification. The HR representative should document the meeting and make a copy of the card.
  • Third, if the social security card matches the information on the No-Match letter, the employer should direct the employee to resolve the situation with the SSA. This should be done in writing.
  • While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match than initially contemplated.

Employers should not jump to conclusions when they receive these letters. If an employee’s name and SSN don’t match SSA’s records, this does not necessarily mean the employee is not authorized to work. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. Because of this, an employer should not assume that an employee referenced in a no-match letter is not work authorized and should not take adverse action against the referenced employee based on that assumption. Such action could subject the employer to liability for discrimination under the antidiscrimination provision of INA. When in doubt, consult with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

EEO-1 Pay Data Due By September 30

By Kathleen J. Jennings (kjj@wimlaw.com)

If your company is required to file EEO-1 reports, then you need to be aware of the latest development in the litigation regarding the addition of pay data to the EEO-1: the federal judge in that case has ruled that EEO-1 pay data must be submitted by September 30, 2019. The federal judge further ruled that employers must turn over two years of pay data to the EEOC. Fiscal year 2018 data is due by Sept. 30, but the EEOC may choose the second year of data it will request from employers: either 2017 or 2019. If the EEOC selects 2017 data, it will be due by Sept. 30, along with the 2018 data. If the EEOC chooses to collect 2019 data, it will be due in Spring 2020. The judge ordered the EEOC to make a decision by May 3 and to inform employers about the 2018 data by April 29 on its website.

EEO-1’s can be filed electronically, but the EEOC’s electronic portal is not ready to accept the pay data in EEO-1’s. However, it was the EEOC that proposed the September 30 deadline, so presumably, it will be ready to accept the pay data by that date. EEOC has stated that it is planning to use an outside contractor to assist with the project.

Who must file an EEO-1? Generally, companies with 100 or more employees and federal contractors with 50 or more employees. These employers will be required to submit employee data, organized into categories of race, sex, ethnicity, and one of 10 job categories. That information is then sorted into one of 12 pay bands.

Employers who are required to file EEO-1s should be collecting the pay data now in preparation for the new filing deadline. There may be further delays or developments, but the best approach right now is to be prepared to meet the new deadline.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

US Supreme Court to Decide Whether Title VII Protects LGBT Employees

By Kathleen Jennings (kjj@wimlaw.com)

Today, the US Supreme Court agreed to consider three appeals court cases involving the issue of whether Title VII’s prohibition of discrimination on the basis of sex covers sexual orientation or gender identity. Currently, there is a split among the Circuits on this issue; the Seventh and Second Circuits have held that sexual orientation is protected by Title VII, and the Eleventh Circuit has held that it is not. In addition, the Sixth Circuit has held that Title VII protects a worker from discrimination on the basis of gender identity. Because of this split in the Circuits, it was only a matter of time until the US Supreme Court decided to take up this issue.

Title VII of the 1964 Civil Rights Act prohibits job discrimination because of “sex.” The narrow interpretation of Title VII does not expand the word “sex” to include sexual identity or transgender status. In 1989, the US Supreme Court held that discrimination on the basis of sex encompasses “sex stereotyping,” and prohibits discrimination against an employee on the basis of non-conformance to sex-based stereotypes. This interpretation has been utilized in some cases where LGBT have alleged that they were discriminated against because they did not conform to the stereotypes of their gender.

Others are urging the courts to adopt a more modern understanding of “sex” that encompasses job bias against a worker who is gay, lesbian, bisexual, or transgender.

Keep in mind that while we wait for the Supreme Court’s decision on this issue of federal law, which should be issued by this summer, several states and localities have enacted their own laws that protect LGBT workers from discrimination. Companies need to keep up with all of the laws in the states where they do business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

DOL Issues New Joint Employer Guidance

By Kathleen J. Jennings (kjj@wimlaw.com)

The U.S Department of Labor (DOL) has been busy, at least when it comes to walking back proposed rules issued during the previous Administration. On April 1, 2019, the DOL announced a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements.

The Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages. This is a major issue for companies that could be potentially liable for wage and hour violations of contractually related companies, such as staffing companies and companies in franchise relationships.

In 2017, the DOL withdrew the previous administration’s sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment. That previous Obama-era guidance memo said that joint employment should be applied “as broad as possible” under the Fair Labor Standards Act.

Now the DOL proposes a four-factor test that would consider whether the potential joint employer actually exercises the power to:

  • Hire or fire the employee;
  • Supervise and control the 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 proposal also includes a set of joint employment examples for comment that would further assist in clarifying joint employer status:

    (1) Example: An individual works 30 hours per week as a cook at one restaurant establishment, and 15 hours per week as a cook at a different restaurant establishment affiliated with the same nationwide franchise. These establishments are locally owned and managed by different franchisees that do not coordinate in any way with respect to the employee. Are they joint employers of the cook?

    Application: Under these facts, the restaurant establishments are not joint employers of the cook because they are not associated in any meaningful way with respect to the cook’s employment. The similarity of the cook’s work at each restaurant, and the fact that both restaurants are part of the same nationwide franchise, are not relevant to the joint employer analysis, because those facts have no bearing on the question whether the restaurants are acting directly or indirectly in each other’s interest in relation to the cook.

    (2) Example: An individual works 30 hours per week as a cook at one restaurant establishment, and 15 hours per week as a cook at a different restaurant establishment owned by the same person. Each week, the restaurants coordinate and set the cook’s schedule of hours at each location, and the cook works interchangeably at both restaurants. The restaurants decided together to pay the cook the same hourly rate. Are they joint employers of the cook?

    Application: Under these facts, the restaurant establishments are joint employers of the cook because they share common ownership, coordinate the cook’s schedule of hours at the restaurants, and jointly decide the cook’s terms and conditions of employment, such as the pay rate. Because the restaurants are sufficiently associated with respect to the cook’s employment, they must aggregate the cook’s hours worked across the two restaurants for purposes of complying with the act.

    (3)  Example: An office park company hires a janitorial services company to clean the office park building after-hours. According to a contractual agreement with the office park and the janitorial company, the office park agrees to pay the janitorial company a fixed fee for these services and reserves the right to supervise the janitorial employees in their performance of those cleaning services. However, office park personnel do not set the janitorial employees’ pay rates or individual schedules and do not in fact supervise the workers’ performance of their work in any way. Is the office park a joint employer of the janitorial employees?

    Application: Under these facts, the office park is not a joint employer of the janitorial employees because it does not hire or fire the employees, determine their rate or method of payment, or exercise control over their conditions of employment. The office park’s reserved contractual right to control the employee’s conditions of employment does not demonstrate that it is a joint employer.

    (4) Example: A country club contracts with a landscaping company to maintain its golf course. The contract does not give the country club authority to hire or fire the landscaping company’s employees or to supervise their work on the country club premises. However, in practice a club official oversees the work of employees of the landscaping company by sporadically assigning them tasks throughout each workweek, providing them with periodic instructions during each workday, and keeping intermittent records of their work. Moreover, at the country club’s direction, the landscaping company agrees to terminate an individual worker for failure to follow the club official’s instructions. Is the country club a joint employer of the landscaping employees?

    Application: Under these facts, the country club is a joint employer of the landscaping employees because the club exercises sufficient control, both direct and indirect, over the terms and conditions of their employment. The country club directly supervises the landscaping employees’ work and determines their schedules on what amounts to a regular basis. This routine control is further established by the fact that the country club indirectly fired one of landscaping employees for not following its directions.

    (5)  Example: A packaging company requests workers on a daily basis from a staffing agency. The packaging company determines each worker’s hourly rate of pay, supervises their work, and uses sophisticated analysis of expected customer demand to continuously adjust the number of workers it requests and the specific hours for each worker, sending workers home depending on workload. Is the packaging company a joint employer of the staffing agency’s employees?

    Application: Under these facts, the packaging company is a joint employer of the staffing agency’s employees because it exercises sufficient control over their terms and conditions of employment by setting their rate of pay, supervising their work, and controlling their work schedules.

    (6)  Example: An association, whose membership is subject to certain criteria such as geography or type of business, provides optional group health coverage and an optional pension plan to its members to offer to their employees. Employer B and Employer C both meet the association’s specified criteria, become members, and provide the association’s optional group health coverage and pension plan to their respective employees. The employees of both B and C choose to opt in to the health and pension plans. Does the participation of B and C in the Association’s health and pension plans make the association a joint employer of B’s and C’s employees, or B and C joint employers of each other’s employees?

    Application: Under these facts, the association is not a joint employer of B’s or C’s employees, and B and C are not joint employers of each other’s employees. Participation in the association’s optional plans does not involve any control by the association, direct or indirect, over B’s or C’s employees. And while B and C independently offer the same plans to their respective employees, there is no indication that B and C are coordinating, directly or indirectly, to control the other’s employees. B and C are therefore not acting directly or indirectly in the interest of the other in relation to any employee.

    (7) Example: Entity A, a large national company, contracts with multiple other businesses in its supply chain. As a precondition of doing business with A, all contracting businesses must agree to comply with a code of conduct, which includes a minimum hourly wage higher than the federal minimum wage, as well as a promise to comply with all applicable federal, state, and local laws. Employer B contracts with A and signs the code of conduct. Does A qualify as a joint employer of B’s employees?

    Application: Under these facts, A is not a joint employer of B’s employees. Entity A is not acting directly or indirectly in the interest of B in relation to B’s employees – hiring, firing, maintaining records, or supervising or controlling work schedules or conditions of employment. Nor is A exercising significant control over Employer B’s rate or method of pay – although A requires B to maintain a wage floor, B retains control over how and how much to pay its employees. Finally, because there is no indication that A’s requirement that B commit to comply with all applicable federal, state, and local law exerts any direct or indirect control over B’s employees, this requirement has no bearing on the joint employer analysis.

    (8) Example: Franchisor A is a global organization representing a hospitality brand with several thousand hotels under franchise agreements. Franchisee B owns one of these hotels and is a licensee of A’s brand. In addition, A provides B with a sample employment application, a sample employee handbook, and other forms and documents for use in operating the franchise. The licensing agreement is an industry-standard document explaining that B is solely responsible for all day-to-day operations, including hiring and firing of employees, setting the rate and method of pay, maintaining records, and supervising and controlling conditions of employment. Is A a joint employer of B’s employees?

    Application: Under these facts, A is not a joint employer of B’s employees. A does not exercise direct or indirect control over B’s employees. Providing samples, forms, and documents does not amount to direct or indirect control over B’s employees that would establish joint liability.

    (9) Example: A retail company owns and operates a large store. The retail company contracts with a cell phone repair company, allowing the repair company to run its business operations inside the building in an open space near one of the building entrances. As part of the arrangement, the retail company requires the repair company to establish a policy of wearing specific shirts and to provide the shirts to its employees that look substantially similar to the shirts worn by employees of the retail company. Additionally, the contract requires the repair company to institute a code of conduct for its employees stating that the employees must act professionally in their interactions with all customers on the premises. Is the retail company a joint employer of the repair company’s employees?

    Application: Under these facts, the retail company is not a joint employer of the cell phone repair company’s employees. The retail company’s requirement that the repair company provide specific shirts to its employees and establish a policy that its employees to wear those shirts does not, on its own, demonstrate substantial control over the repair company’s employees’ terms and conditions of employment. Moreover, requiring the repair company to institute a code of conduct or allowing the repair company to operate on its premises does not make joint employer status more or less likely under the act. There is no indication that the retail company hires or fires the repair company’s employees, controls any other terms and conditions of their employment, determines their rate and method of payment, or maintains their employment records.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

DOL Issues Proposed Rule Updating Regular Rate Requirements

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, for the first time in more than 50 years, the U.S. Department of Labor today announced a proposed rule to clarify and update the regulations governing regular rate requirements.

Regular rate requirements define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.

Under current rules, employers are discouraged from offering more perks to their employees as those perks may be vaguely defined in calculating an employees’ regular rate of pay. The proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. According to the DOL, because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.

The Department proposes clarifications to confirm that employers may exclude the following from an employee’s regular rate of pay:

•    the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;

•    payments for unused paid leave, including paid sick leave;

•    reimbursed expenses, even if not incurred “solely” for the employer’s benefit;

•    reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;

•    discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;

•    benefit plans, including accident, unemployment, and legal services; and

•    tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, “call back” pay, and others. The public may submit comments about this proposed rule by 11:59 pm on May 28, 2019.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Strategies for Addressing Sexual Harassment in the Workplace; One Size Does Not Fit All

By Kathleen J. Jennings (kjj@wimlaw.com)

Today the U.S. Equal Employment Opportunity Commission (EEOC) convened an “Industry Leaders Roundtable Discussion on Harassment Prevention.” Representatives from a diverse group of industries and associations discussed challenges their members and the public face in addressing issues raised by the #MeToo movement. Participants also shared strategies they have implemented to improve workplace culture and reduce harassment.

  • Rosanna Maietta, Executive Vice President of Communications & Public Relations of the American Hotel & Lodging Association and President of the American Hotel and Lodging Educational Foundation, described the 5-Star Promise, a pledge to provide hotel employees with employee safety devices and to adopt enhanced policies, trainings and resources to improve hotel safety, including preventing and responding to sexual harassment and assault.
  • Andy Brantley, President and CEO of the College and University Professional Association for Human Resources, shared that “we cannot simply ‘train away’ harassment. Training and heightening awareness will always be important, but we must be committed to creating and sustaining workplace cultures that do not tolerate harassment in any way, shape or form.”
  • Stephanie Martz, Senior Vice President and General Counsel of the National Retail Federation, explained that “retailers recognize that training and a company culture of respect and inclusion are critical to effective prevention and compliance efforts.” She noted one challenge her organization and its members have identified is the importance of tailoring training to address the unique realities of the retail workplace.
  • Bobby Franklin, President and CEO of the National Venture Capital Association, emphasized that “harassment is interconnected with the lack of diversity and inclusiveness in our industry.” As a result, his organization surveys members to understand the scope of the harassment problem in their industry, and it has taken multiple steps to improve education by drafting model policies and a best practices guide.
  • James Banks, Jr., General Counsel of the Society for Human Resources Management, stated that his organization is providing human resource professionals with programming on workplace civility, inclusion, workplace investigations that can improve culture, and anti-harassment strategies. Mr. Banks explained that “the #MeToo movement has been a call to action for organizational leaders to assess their workplaces to ensure they have a healthy culture and live that culture in all they do.”

The Takeaway: In order for an employer to effectively deal with sexual harassment in the workplace, it must create a culture where harassment is not tolerated by anyone. Supervisor and employee training are tools that can help a company to achieve that goal, and they should be tailored to the needs of the particular industry and workforce. However, the commitment to a workplace culture that does not tolerate sexual harassment must start with upper management. And that means that sometimes upper management is going to have to make some difficult decisions if they learn that a valued manager or high performing employee has committed sexual harassment; if they take no action against that person, employees will see that the company is not willing to “put their money where their mouth is.”

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.