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J-Law and the ‘Hustle’ for Equal Pay

The final installment of The Hunger Games movie franchise opened this past weekend. And star Jennifer Lawrence (affectionately known to her fans as J-Law) is saturating the media.

But last month J-Law made headlines for another reason: her essay about gender pay inequity. In her rant, J-Law addressed revelations from the Sony Pictures Entertainment data hack that she and Amy Adams were paid less than their male co-stars in American Hustle. When she found out about the pay difference she wasn’t mad at Sony, she was mad at herself, she wrote.
“I failed as a negotiator because I gave up early. I didn’t want to keep fighting over [the money].” A need “to be liked” and fear of appearing “difficult” kept her from demanding more money, she said. And, “based on the statistics, I don’t think I’m the only woman with this issue.”
Does J-Law know what she’s talking about? The data and the law seem to back her up.
Research studies suggest that on average women are less likely than men to negotiate for more pay; and, when they do, they are less likely to be successful and more likely to face backlash. Employers need to be aware of this dynamic, because it can unwittingly lead to pay disparities that expose them to low morale, talent flight, and legal challenges.  
The Equal Pay Act prohibits sex-based wage disparity for equal work at the same establishment. The jobs do not have to be identical, but they must be substantially equal in terms of skill, effort,      Continue Reading...
Leave as an ADA Accommodation: How Much is Enough

Consider this fact pattern:  An employee has a back problem that stretches out over a long period of time.  At some point, the back problem becomes severe enough the employee goes out on FMLA leave.  During the twelve weeks of FMLA leave, the employee ends up scheduling a surgery.  The surgery takes place near the end of the twelve week FMLA period and the employee has a set of lifting restrictions that don't allow the employee to perform the essential functions of the position.  Under those facts, there is no way the employee can return to work at the conclusion of the FMLA leave.  Now what?

Employers face fact patterns like this one on a fairly regular basis.  A reasonable accommodation under the ADA might be to provide the employee with additional leave beyond the protected twelve-week FMLA absence.  These cases are usually fact-specific and can be tricky to resolve.  

A federal court in Wisconsin recently decided a case with this set of basic facts.  In the case, the employee requested another two to three months of additional leave to allow for recovery from the surgery.  The employer denied the request for the additional leave and ended the employment relationship.  As you might expect, the employee brought an ADA claim against the employer.  In what might be a surprise for employers, the court ruled in favor of the employer.  The court focused on the fact the employee had not been able to perform the job duties for the three months during the FMLA leave and that the anticipated two to three additional months was too long for the employee to be away from work.

Keep in      Continue Reading...

Congress Repeals ACA's Auto-Enrollment Requirement

Need something to add to your list of things to be thankful for this year?

As part of the Bipartisan Budget Act of 2015, Congress has repealed the auto-enrollment requirement under Section 18A of the Fair Labor Standards Act (FLSA), which was added by the Affordable Care Act. This provision would have required an employer that has more than 200 full-time employees to automatically enroll any new full-time employee in one of the employer's health plans, unless the employee affirmatively opted out of coverage.

Implementation of this requirement had been indefinitely delayed, pending the issuance of interpretive guidance. As such, employers will not feel any immediate impact from this legislation. But the auto-enrollment requirement raised a number of sticky issues that were likely to present challenges, so the repeal is a welcome development for regulation-weary employers.


New Overtime Pay Regulations: Wait and Hurry Up

Last week a Department of Labor (DOL) official announced that the much-anticipated changes to the overtime pay rules may not be published until late 2016. That’s not a typo—she really did say 2016. But the flip side is that the rules will become effective shortly after they are published. So employers would be wise to start mapping out their potential compliance strategy now, rather than waiting until the final regulations actually drop.     

As you are probably aware, this past June the DOL issued a proposed regulatory change to the “white collar” exemptions to the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). The proposal is to increase the minimum salary that must be paid to employees to be exempt (from the minimum wage and overtime requirements of the FLSA ) for most of the “white collar” exemptions from $23,660 annually ($455 per week) to $50,440 ($970 per week) with annual automatic increases thereafter. This change will apply to all employers with white collar exempt employees, private or public sector, profit or not-for-profit.
Since June 30, the Department has received more than 250,000 public comments, which it is obligated to consider before issuing a final rule. In early November, the Solicitor of Labor, Patricia Smith, said the final rule likely will not be published until the fall of 2016 with an effective date as soon as 30-60 days after publication. Most commentators believe that the Department wants the new rule to be effective before the November 2016 general election.      Continue Reading...
Expanded Deferred Action Program Remains on Hold

In November 2014, President Obama expanded the deferred action program currently in effect.  The expansion would have extended eligibility to participate in the program to about 4 million more individuals currently in the U.S. illegally.  The program extension is currently on hold due an injunction issued by the U.S. District Court for the Southern District of Texas.  The issuance of the injunction was appealed by the federal government.  The Court of Appeals upheld the injunction in a decision issued earlier this week. 

This means the expansion of the deferred action program remains temporarily blocked from implementation until the trial of the matter takes place or the federal government successfully appeals the decision.  Stay tuned.  It will likely be months before this issue resolves itself. 

Happy Veteran's Day

Happy Veteran's Day and a thank you to all who have served or are currently serving!

For employers looking to support veterans, check out the Department of Labor Veterans' Employment and Training Service (VETS) site.  To see more click here.

Minimum Wage and Overtime Protections for Home Care Workers Effective November 12, 2015

Earlier this month the Supreme Court denied a request to delay enforcement of a new rule that extends minimum wage and overtime protections to certain home care workers. This means that certain home care workers that were previously exempt from the Fair Labor Standards Act’s minimum wage and overtime requirements as live-in domestic service employees or companionship employees are no longer exempt.  

The new rule revised and narrowed the definition of what constitutes “companionship services,” resulting in fewer employees that fall under this exemption. In addition, third-party employers, such as home care agencies, will not be able to claim either the live-in domestic service or companionship service exemptions to the FLSA—even if the third party is a joint employer with the household using the services. The new rule also requires that certain records be kept regarding domestic service employees.  

The rule is effective—and immediately enforceable—on November 12, 2015. Employers of home care workers should take steps now to ensure they are compliant. 
Home care associations intend to ask the Supreme Court to review whether the new rule is valid. But, as of now, the Court has not agreed to hear the case and even if the Court does hear the case, that will not delay the effective date of the new rule. 
EEOC Proposes GINA Guidance on Wellness Plan Incentives for Spouses

The EEOC has released a proposed rule, a fact sheet, and a set of FAQs regarding the Genetic Nondiscrimination Act (GINA) and wellness plan incentives for spouses of employees.

Under the proposed rule, an employer may offer an incentive as part of a wellness plan for an employee’s spouse to provide information about the spouse’s current or past health status, so long as the wellness plan is part of a program that is reasonably designed to promote health or prevent disease. Some additional conditions must also be satisfied, including that the total incentive for the employee and the spouse must not exceed 30% of the total cost of the group health plan coverage in which the employee and spouse are enrolled and that the spouse provide a voluntary, written authorization.  

This guidance is limited to programs that provide incentives for spouses to provide information about their current or past health status. It does not change existing GINA guidance that prohibits offering incentives to employees, spouses, or their children to provide their own genetic information, including family medical history.

These regulations are a companion to regulations under the ADA proposed by the EEOC earlier this year relating to wellness plan incentives offered to employees in exchange for undergoing a disability-related inquiry or medical examination. Under those regulations, employers generally may offer such incentives, so long as the amount of the incentives are limited to 30% of the total cost of employee-only coverage under the employer's group health plan. 

The ADA and GINA regulations      Continue Reading...

DHS Issues Proposed STEM OPT Rule

The Department of Homeland Security (DHS) issued a proposed rule providing for the extension of optional practical training (OPT) time for foreign students that obtain degrees in STEM fields of study.  STEM stands for science, technology, engineering and math.  The new regulation proposes an additional twenty-four month extension to the existing twelve month OPT period.  This extension will be made available for each degree level should the individual obtain a bachelors degree and then later obtain a masters degree.  DHS is currently preparing a listing of eligible STEM fields that will be permitted to participate in the program and will provide that information at a later date. 

The proposed rule also imposes a few requirements on employers participating in the program.  Employers will be required to participate in E-Verify, implement mentoring and training programs to further the attainment of the practical experience contemplated by the program, attest to having the resources to provide the mentoring and attest that no U.S. workers experienced job losses as a result of employing the individual participating in the OPT program.

Stay tuned for the finalization of the rule and the detailed listing of STEM degree fields.   

All I Really Need to Know About HR I Learned in Kindergarten?

Several human resources managers I work with sometimes refer to employees as their “children” and joke that at times (particularly when dealing with their “problem children”) they feel more like grade school teachers than HR managers. A recent study reaffirms the inherent truth in this analogy. 

Childish behavior is not confined to elementary school playgrounds, but is prevalent in today’s workplace, according to a new survey by Harris Poll on behalf of CareerBuilder. Over 75 percent of employees report that they have witnessed some type of childish behavior among colleagues in the workplace. Over half of those surveyed (55%) report whining by colleagues. (The only thing surprising here is that the number is not higher.) Just under half (46%) have witnessed co-workers pouting when something didn’t go their way. (That seems about right.) But what surprised me are the high rates of truly juvenile behavior, such as: making a face behind someone’s back (35%); forming a clique (32%); starting a rumor about a co-worker (30%); storming out of the room (29%); throwing a temper tantrum (27%); and refusing to share resources with others (23%). No wonder HR managers sometimes feel like elementary school teachers!
So how big is the problem? Dale Carnegie taught that when dealing with people, you need to remember you are not dealing with creatures of logic, but creatures of emotion. When humans are involved, emotions can trigger illogical, even childish, behavior. When such behavior is demeaning or distracting to others, it is unquestionably inappropriate. Childish behavior is bad      Continue Reading...
Bank Misclassified Appraisers as Exempt from Overtime Pay, Court Says

This summer a federal court ruled that a class of current and former residential real estate appraisers were improperly classified as exempt from overtime pay under the Federal Labor Standards Act (“FLSA”). In doing so, the court rejected the bank’s argument that the appraisers fell under the administrative, professional, and highly compensated employee exemptions.

The case involved two classes—one comprised of residential appraisers, and another made up of review appraisers. Both groups of appraisers alleged that the bank misclassified them as exempt from overtime under state and federal law. Last fall the parties settled the claims of the review appraisers for approximately $5.8 million, leaving only the residential appraisers pursuing their claims.
Administrative Exemption. Under the FLSA, an employee qualifies for the administrative exemption if the following three requirements are met: (1) the employee is compensated on a salary or fee basis meeting a certain threshold; (2) the employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
The parties disputed whether the appraisers’ work directly related to the bank or its clients’ general business operations. The court agreed with the appraisers’ argument that their work essentially involved production work, with no impact on the bank’s policy decisions. The court rejected the bank’s argument that appraisers engaged in advisory and consulting services, conducted business research, and      Continue Reading...
New Farmworker Safety Rule Issued

The Environmental Protection Agency (EPA) recently issued a farmworker safety rule related to pesticide use.  The new rule will likely take effect in the early part of 2017 as the full version is set to be published in the next 60 days with a 14 month implementation period before taking effect.  Some highlights of the new rule include:

  • Employees under the age of 18 will not be permitted to handle or apply pesticides.
  • Pesticide training must take place on an annual basis as opposed to once every five years.
  • Employees must be trained on how to minimize the risk of carrying home residue of the pesticides in use.
  • The usage of personal protective equipment will be expanded as well as the testing and monitoring of the equipment.
  • Employers will be required to maintain records of all pesticide use for at least two years.
  • Farm workers will now have whistle blower protections.

With these changes set to take place in 2017, employers that use pesticides will want to review the full rule upon publication and begin implementing the changes along the way. 

Tricks at Work Are No Treat for Employers

Halloween is a lot of fun for both kids and adults.  When else can we wear inappropriate costumes, gorge on unlimited candy, and create a “Walking Dead” display in our front yard?  But when the spectral mist of Halloween creeps into the workplace, things can get really scary. Here are some real-life Halloween work-place mishaps that left employers haunted:

  • A retail store put up a notice encouraging employees to come to work in costume on Halloween.  About half participated, while the other half showed up in their regular clothes.  Donna Meraz was one of the employees who didn’t wear a costume, claiming that doing so conflicted with her religious beliefs.  Later that year when Meraz’s work hours were reduced, she sued the company alleging she was retaliated against for her religious beliefs after refusing to work in costume on Halloween.  The court gave the employer a treat, dismissing Meraz’s retaliation claim. 
  • An employee brought a retaliation claim against her employer, alleging she was fired after complaining about a male supervisor who constantly made suggestive remarks about female employees.  On one occasion, a woman wore a cat costume to work on Halloween and the male supervisor allegedly said that he “liked her tail.”  Unfortunately, the male supervisor got up to other hijinks like this and the court ordered the case to a jury. 
  • Several black and Hispanic employees of a city parks department brought class action      Continue Reading...
Remembering Yogi

America lost one of its most-loved  and iconic sports legends when Yogi Berra passed away at age 90 earlier this week. Yogi was truly one of a kind—as much of a character as he was a great catcher. Make no mistake about it, Yogi was one of the best baseball players ever: 15-time All Star; 10-time World Series winner; and three-time MVP. He went on to become a successful manager, leading both American and National League teams to the World Series. But Yogi became equally famous for his “Yogi-isms,” colloquial expressions that seem nonsensical but convey deeper  meaning—bits of wisdom and wit that get to the truth in a hurry. Here are some of the most memorable Yogi-isms and what human resources professionals and personnel managers can take away from these nuggets. 

  • “You’ve got to be careful if you don’t know where you’re going ‘cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).
  • “We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there. 
  • "It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices      Continue Reading...
OFCCP Publishes Final Pay Transparency Regulations for Government Contractors

The OFCCP recently published final Pay Transparency regulations for government contractors. Mandated by Executive Order, the new regulations protect applicants and employees from adverse treatment for sharing pay information, establish employer defenses to pay-transparency discrimination claims, and impose publication requirements on contractors. 

Regulations Prohibit Pay-Transparency Discrimination
The regulations add a new anti-discrimination provision to the Equal Opportunity Clause that will become part of every government contract and subcontract. That provision states:
The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
“Compensation” is broadly defined to include not only salary and wages, but also overtime pay and shift differentials; bonuses, commissions, and profit sharing; vacation, holiday, insurance, retirement and other benefits; and stock options and awards. Unlike the NLRB’s recent pay-transparency rules, this nondiscrimination provision applies to all employees, including supervisors and managers.
In pursuing pay-transparency discrimination claims, the OFCCP will apply the “a motivating factor” standard. This means the OFCCP can prove discrimination if pay transparency was a motivating factor in an adverse employment decision, even if other legitimate grounds also animated the contractor’s decision. The OFCCP also warns that, in some cases, it will apply the McDonnell Douglas burden-shifting approach to show that an employer’s proffered justification for its actions is a pretext for discrimination. Unlike Title VII or other discrimination claims, only the OFCCP—not individual employees—can      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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