The North Carolina Department of Labor Says that Employers Can Fire Employees Who Do Not Show Up for Work During a Hurricane. That Does Not Mean It is A Good Idea.

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

In North Carolina, a major hurricane is not necessarily a good excuse for employees to miss work, at least according to the North Carolina Department of Labor.

This is what the North Carolina Department of Labor website says:

Does my employer have the right to make me come to work during adverse weather conditions?

Yes. Since an employer does not have to have an adverse weather policy at all, the employer can simply inform its employees that they must report to work whenever the business is open regardless of the weather conditions or road conditions. With very few employment law exceptions (discussed below), an employer can make staying at work or reporting to work during adverse weather a condition of employment.

And it does not matter if a ‘state of emergency” has been declared:

What if the governor declares a “state of emergency” and asks everyone to stay off the roads?

It does not matter if state officials have declared a state of emergency and are advising people to stay off of the roads. The decision to stay open or to close, for its employees to remain at work or leave early, or for its employees to report to work or not during adverse weather conditions, is entirely up to each individual employer to make on its own.

Just because an employer can require employees to work during a hurricane does not mean that it should. If it is unsafe for employees to travel or even remain in the area (due to an evacuation order), the employer that requires employees to report to work anyway may be violating public policy and placing people under unnecessary risk of harm. Placing employees in unnecessary danger may also violate OSHA’s General Duty clause. And finally—it just looks bad. Unless the business is one that provides important public services (such as a hospital or utility), let employees stay home (or evacuate) and be safe.

Pro tip: If your business does not have a written adverse weather policy, it is time to implement one. At a minimum, an employer should have a policy regarding how it will communicate with employees about any closing of the business due to adverse weather so employees do not make unnecessary trips.

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.

©2018 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.

 

 

Department of Labor to Hold “Listening Sessions” on Overtime Rule

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

Remember the uproar about the increase in the salary threshold for certain overtime exemptions? Although implementation of the substantial salary threshold increase proposed by the Obama administration never came to fruition, the issue has not gone away entirely. Today, the Wage and Hour Division (WHD) of the U.S. Department of Labor announced that in the upcoming weeks it will hold “public listening sessions” to gather views on the Part 541 white collar exemption regulations, often referred to as the “Overtime Rule.” Issued under the Fair Labor Standards Act, these regulations implement exemptions from overtime pay requirements for executive, administrative, professional, and certain other employees. The Department plans to update the Overtime Rule and is interested in hearing the views and ideas of participants on possible revisions to the regulations.

According to its website, the WHD seeks public input on questions such as:

  • What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply?
    • Why?
  • What benefits and costs to employees and employers might accompany an increased salary level?
    • How would an increased salary level affect real wages (e.g., increasing overtime pay for employees whose current salaries are below a new level but above the current threshold)?
    • Could an increased salary level reduce litigation costs by reducing the number of employees whose exemption status is unclear?
    • Could this additional certainty produce other benefits for employees and employers?
  • What is the best methodology to determine an updated salary level?
    • Should the update derive from wage growth, cost-of-living increases, actual wages paid to employees, or some other measure?
  • Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees?
    • If so, how should these updates be made?
    • How frequently should updates occur?
    • What benefits, if any, could result from more frequent updates?

If you or your business want to share your thoughts with the WHD about these issues, you can attend the listening sessions in any of the following cities:

September 7, 2018, 10am-12pm

Intercontinental Buckhead Atlanta

3315 Peachtree Rd NE- Trippe Room

Atlanta, GA

September 11, 2018, 10am-12pm

Jackson Federal Building

912 2nd Ave., Ste. 566

Seattle, WA

September 13, 2018, 10am-12pm

Holiday Inn Country Club Plaza

One E 45th St, -Ballroom A/B

Kansas City, MO

September 14, 2018, 10am-12pm

Remington Arms Room

DFC- Building 41

Denver, CO

September 24, 2018, 10am-12pm

Rhode Island Convention Center

1 Sabin Street- Room 551A/B

Providence, RI

There is no fee to attend the listening sessions; however, registration is required.

We expect that there will be some increase in the salary threshold for the overtime pay requirements for executive, administrative, professional, and certain other employees, but it will not be as large as the one proposed by the Obama administration. We will continue to provide updates on this issue.

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

©2018 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.

EEOC Continues to Aggressively Pursue Litigation Against Employers

By Kathleen Jennings (kjj@wimlaw.com)

Despite being well over a year into the new Republican administration, the EEOC shows no signs of slowing down its aggressive litigation efforts. In just the last week, the EEOC announced three multi-million dollar settlements of lawsuits that it brought against private employers.

  • On July 30, 2018, the EEOC announced that the SLS Hotel, operated by hotel, restaurant and nightlife company called “sbe”, will pay $2.5 million and provide other relief to settle the discrimination lawsuit brought by the EEOC. According to the EEOC’s lawsuit, black Haitian dishwashers were wrongfully terminated on the basis of their race, color, and national origin and were replaced by a staffing agency workforce of mostly light-skinned Hispanics. The terminated dishwashers worked in the kitchens of The Bazaar by José Andrés, Katsuya, and the Hyde Beach-all restaurant venues located at SLS Hotel, in South Beach.

    The dishwashers testified that their supervising chefs referred to them as “slaves” and reprimanded them for speaking Creole, even amongst themselves, while Hispanic employees were allowed to speak Spanish. The testimony also revealed that the black Haitian dishwashers complained to human resources about discrimination and about having a “racist” supervisor but, instead of addressing these complaints, the SLS Hotel fired the entire dishwashing department made up primarily of black Haitians, without providing them an opportunity to apply to the staffing agency before their termination.

  • On August 1, 2018, the EEOC announced that a U.S. District Court approved a consent decree between Alorica, Inc. and the EEOC for $3.5 million and remedial measures to resolve a sexual harassment lawsuit. According to the EEOC, male and female customer service employees were subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC further alleged that the onsite human resources staff failed to properly address the harassment despite repeated complaints by employees.

     

    In addition to the monetary relief, Alorica agreed to significant injunctive relief in the form of a three-year consent decree, which includes the hiring of a third-party monitor; the creation of an internal equal employment opportunity consultant and internal compliance officer; and, sexual harassment training, including incorporating civility and bystander intervention training, for its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

     

  • Also on August 1, 2018, the EEOC announced that Koch Foods, one of the largest poultry suppliers in the world, will pay $3.75 million and furnish other relief to settle a class employment discrimination lawsuit filed by the EEOC. According to the EEOC’s lawsuit, Koch subjected Hispanic employees and female employees to a hostile work environment and disparate treatment based on their race/national origin (Hispanic), sex (female), and further retaliated against those who engaged in protected activity. EEOC alleged that supervisors touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for normal everyday work activities. Further, a class of Hispanic employees was subject to retaliation in the form of discharge and other adverse actions after complaining.

    In addition to paying the money, Koch Foods will take specified actions designed to prevent future discrimination, including implementing new policies and practices designed to prevent discrimination based on race, sex or national origin; providing anti-discrimination training to employees; creating a 24-hour hotline for reporting discrimination complaints in English and Spanish; and posting policies and anti-discrimination notices in its workplace in English and Spanish.

Note that in all of these cases, the employers did not admit to liability.

The Takeaway: The EEOC continues to file enforcement actions against employers, primarily in the areas of harassment and disability discrimination, which are among its enforcement priorities. One of the major downsides of an EEOC-filed lawsuit is that the EEOC almost always insists on a press release publicizing the amount of any settlement. This is in contrast with the settlements of most privately filed employment lawsuits, where the parties can usually agree to keep the amount of the settlement confidential.

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

©2018 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.

 

Today is the 28th Anniversary of the Americans With Disabilities Act (ADA)

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC sent out a tweet to remind us that today is the 28th Anniversary of the signing of the Americans with Disabilities Act (ADA) by President George H.W. Bush.

A case filed by a pro se plaintiff in Alabama reminds us that a person does not have to be disabled to be protected from discrimination by the ADA; the ADA also protects an employee whose employer erroneously perceives him/her to be disabled. In the case of Ruggieri v. The City of Hoover, AL, Case No.: 2:18-CV-0476-VEH (Motion to Dismiss denied July 24, 2018), the plaintiff alleged that his violated the ADA when it required him to attend psychiatric counseling. The plaintiff contended that he was the only one in his department required to do so, thereby showing it was inconsistent with job requirements and business necessity. The ADA provides that a covered employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

The City moved to dismiss on a number of procedural grounds. Among the arguments made by the City was that the plaintiff’s EEOC Charge (which generally provides the factual basis of a subsequent lawsuit) was deficient because the plaintiff did not allege that he was disabled. The district court rejected this and other arguments by the City. While giving the Plaintiff some latitude because he was not represented by an attorney, the court noted that the ADA protects employees who are not disabled. Further, the section of the ADA that prohibits medical examinations unless they are job-related and consistent with business necessity is not limited only to persons who are actually disabled.

This case is in the early stages, so we don’t know all of the facts. Nevertheless, it appears that the City could have handled the situation a lot better. If an employer wants an employee to undergo a physical or mental examination, it needs to have a good job-related reason, with supporting documentation, and it should share that reason with the employee so there are no misunderstandings.

This case also reminds us that an employer cannot blithely refer an employee to “anger management counseling.” Ideally, if the employer believes that an employee has demonstrated behaviors in the workplace that warrant a referral to anger management counseling, the employer should attempt to persuade the employee to attend such counseling voluntarily. However, if the employer requires an employee to attend anger management counseling as a condition of employment, this requirement may be construed as a “medical examination” under the ADA, and the employer must have a job-related reason consistent with business necessity to support it. Consult with experienced employment counsel to make sure that your company is not violating the ADA.

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

©2018 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.

 

Supreme Court Nominee Kavanaugh Has Record of Pro-Business Decisions

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

On Monday, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals was nominated to the U.S. Supreme Court. Kavanaugh is a graduate of Yale Law School who clerked for retiring Justice Kennedy (at the same time as Justice Gorsuch). He was appointed to the D.C. Circuit in 2003 by George W. Bush and was confirmed after 3 years.

If confirmed (which is probable), Kavanaugh would bring a pro-business approach to the highest court. Some of the labor and employment issues where his vote could influence the direction of the law are the following:

  • Harassment of the basis of sexual orientation. As discussed in previous blog posts, there is currently a conflict in the Circuits regarding whether Title VII covers harassment on the basis of sexual orientation. I predict that with Kavanaugh in the majority, the Supreme Court will narrowly interpret Title VII and find that it does not cover harassment on the basis of sexual orientation.
  • Joint employer test. The legal issue of whether one business is the joint employer of another business’s employees is an important one for businesses that subcontract out some work to other businesses. Under the Obama administration, the parameters of the joint employer relationship were expanded. In his writings for the D. C. Circuit, Kavanaugh has taken a narrow view of joint employer issues. Should the issue of what constitutes a joint employment relationship come to the Supreme Court, it is probable that Kavanaugh will continue to use that narrow approach.
  • Mandatory arbitration of employment disputes. In the most recent session, the Supreme Court upheld the validity of class action waivers. It is likely that the issue of mandatory arbitration agreements for individual employment disputes could come before the Supreme Court next term. If so, it is probable that the Court, including Kavanaugh, will uphold the use of mandatory arbitration agreement for individual disputes.
  • Deference to administrative agency interpretations and rulemaking. In his writings, Kavanaugh does not appear to be a big fan of administrative agencies, and he appears to be disinclined to show deference to their interpretations of their regulations.

The takeaway: The addition of Kavanaugh to the Supreme Court will result in more favorable decisions for employers and businesses.

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

©2018 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.

 

Certain Employers Required to Electronically Submit Form OSHA 300A By July 1

By Kathleen Jennings (kjj@wimlaw.com)

Some companies may not be aware that effective July 1, 2018, they are required to report certain information electronically to OSHA pursuant to the Improve Tracking of Workplace Injuries and Illnesses final rule.

Establishments with 250 or more employees that are required to keep injury and illness records, as well as establishments with 20-249 employees in certain high-risk industries must submit information from their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Note that covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

In April, OSHA announced that affected employers in state-plan states that have yet to adopt the electronic recordkeeping rule are nevertheless required to submit their 300A data by the July 1 deadline. (These states include California, Maryland, Utah, Washington, and Wyoming.) Employers in those states are required to use federal OSHA’s Injury Tracking Application (ITA) to submit their data.

Some states, such as Washington and Wyoming, have disputed federal OSHA’s authority to require establishments under state plan jurisdiction to follow the federal requirements, and OSHA has admitted that it does not have the authority to cite employers in those states that fail to submit their 300A data by the July 1 deadline. Nevertheless, employers in state-plan states are advised to submit 300A data to federal OSHA by the July 1 deadline.

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

©2018 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.

Happy Birthday, FLSA!

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

Today, the Fair Labor Standards Act (FLSA) turns 80 years old. In 1938, the FLSA, signed into law by Franklin Delano Roosevelt, established a federal minimum wage, the 40-hour workweek, overtime, and limits on child labor. Think about what the world of work must have looked like before those measures were implemented.

Moreover, think about how the world of work has changed since 1938. Back then, most workers clocked in and out of work on timeclocks usually actual time cards. Now, some workers simply sign in and out of work on an app on their phones. Indeed, the new “gig economy” is presenting challenges to the continued relevance of the FLSA, and some updates to the law are going to be necessary in order to keep up with the changing workplace. However, as demonstrated by the Obama administration’s attempt to expand the salary threshold for the overtime exemption, any changes are likely to draw opposition and pushback.

Members of the House and Senate marked the FLSA’s birthday by introducing bills to make farmworkers eligible for overtime pay. Under the current law, farmworkers are not eligible to receive overtime pay. The new bill is unlikely to pass this year but could gain support if Democrats win control of either the House or Senate following November’s midterm elections.

Here’s how your company can celebrate the FLSA’s birthday: review your exempt employees and their duties to make sure that they are correctly classified. And remember: simply paying an employee a salary does not automatically make the employee exempt.

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

©2018 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.