Workplace Law Roundup
Wage and Hour Developments
One of the most significant developments from Washington is President Obama’s directive in March 2014 to the United States Department of Labor to revise current overtime exemptions for supervisors. The president made no secret of his goal: he wants to make more workers become eligible for overtime by “simplifying” the rules and regulations that set out exemptions from overtime requirements.
In many HVAC companies, there are often individuals who supervise, sell, and function as techs, too—sometimes all in the same day. Depending on the types of duties they perform and the relative proportion of exempt versus non-exempt work they perform, these employees may or may not be exempt from overtime. Confused? Don’t wait for the new and improved rules to be issued—determine now whether your pay practices comply. Why? Because all the attention being paid to the president’s order is causing a noticeable uptick in Fair Labor Standards Act litigation under the current rules.
The Department of Labor is proposing a “study” to determine whether employees understand whether they’re classified properly as employees versus independent contractors. Here’s the part of the proposal that just jumps out “Federal labor laws do not require employers to inform workers of their employment status (whether the worker is an employee or not), the basis for their status determinations, or pay (including hours worked, pay rates, and wages paid). As a result, workers may not be prepared for the consequences of misclassification.” Does it take a crystal ball to guess what may be coming? Don’t be surprised to see a new employee rights poster issued in the near future.
National Labor Relations Board News
The NLRB wants to extend the right of representation to employees who are facing discipline to non-union employees; union employees can have a fellow employee such as a union president accompany them in a disciplinary interview. The Board also wants to make it easier for unions to remain in place when a company is acquired; expand union access to employer property, require equal time to respond to company union-avoidance speeches; and require that companies allow unions the use of company email to conduct union solicitation.
New COBRA Notices
Why? So that COBRA beneficiaries will understand that because of the Affordable Care Act, they have options other than continuing coverage under a group plan at prices, which may be greater than the premiums available in the exchanges. Typically, health insurance carriers make the modifications to required forms so this is really a heads-up to make sure your carrier does so.
Employment Discrimination Cases
Discrimination cases are becoming more common and cover more areas. Here are some examples of recent cases.
Case #1: A woman requests additional time off once her FMLA leave runs out, employer denies request and terminates woman who requested additional time off because of a complicated pregnancy. You would think that once FMLA leave runs out, that’s it, no more time off, right? Not necessarily. According to the Federal Court who heard the case, additional leave beyond the FMLA’s requirements can be a reasonable accommodation under the Americans with Disabilities Act. Further, the court rejected the employer’s argument that attendance was an essential function of the job, which could not be met, and that therefore the accommodation was not reasonable.
The court went even further, saying that firing an employee for excessive absence linked to a disability could be an ADA violation. But what if you’re not a large enough employer (50 employees) or the employee isn’t FMLA-eligible (one year of employment, minimum of 1250 hours) to be covered by FMLA in the first place? If you have at least 15 employees, you’re subject to the ADA.
Case #2: Employee isn’t performing well, isn’t following instructions, supervisor meets with employee to discuss a performance improvement plan, and says, look, you’re not hearing me; you need to do your job properly. Employee gets a hearing test, the results show she needs hearing aids, and she’s eventually let go because her performance doesn’t improve. The employee has now filed an EEOC charge claiming she is disabled. Suffice it to say her performance had nothing to do with her ability to hear, but she apparently took the “you’re not hearing me” comment quite literally and has turned it into a discrimination claim.
Case #3: A gay worker’s Title VII case was allowed to move forward in court. Why is this significant? Because Title VII, the federal job discrimination law, says nothing about protecting gays and lesbians. Yet a small, but increasing number of courts, with EEOC support, are interpreting Title VII as encompassing discrimination based on gender stereotypes, and such stereotypes include challenges to “perceptions of acceptable gender roles.”
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