By: Christina M. Reger
To help employees address their pressing employment problems, the Department of Labor is introducing:
worker.gov
What is it?
The website is a collaborative effort between the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Department of Justice. The website “remov[es] the guesswork, and provid[es] workers access to critical information about their rights under the major labor statutes in a way that makes sense for them.”
How does it work?
The site will ask you what your job title is, and then provide the employee with many handy links to educate them on a variety of employment law problems. Clicking on a link to explain the problem will provide them with another link to file a claim, right from the worker.gov site.
Does it apply to everyone?
As the DOL explains, “in the coming weeks and months, the site will expand to target more and more occupations, informed by use and feedback. In future releases, as users answer more questions, the site will learn to narrow in on the precise information that workers need most. For example, if workers who identify as construction workers most often look for information about worker safety and wage theft, the site will begin to feature that information more prominently for users who identify themselves as construction workers.”
How Does Your Employer Wellness Program Measure Up?
By: Christina M. Reger
Last Friday, the EEOC published proposed amendments to GINA, the Genetic Information Nondiscrimination Act as it relates to Employer Wellness Programs.
What is GINA you ask? GINA prohibits employers from discriminating against employees because of their genetic information, including genetic information of family members such as spouses, unless one of six narrow exceptions applies. One of those narrow exceptions is when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program.
What do the current regulations say? Under the current EEOC regulations implementing GINA, employers are prohibited from offering incentives in return for genetic information. Therefore, an employer offering a wellness program had to tread lightly so as not to violate GINA.
What does the proposed regulations say? An employers that offer wellness programs as part of group health plans may provide limited financial and other inducements (also called incentives) in exchange for an employee’s spouse providing information about his or her current or past health status information.
What is the financial incentive that an employer may offer? “The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.”
How does this affect me? The enactment of these regulations will provide clarity to employers and offer additional benefits to keep employees healthy that will benefit everyone.
Attached below are links to the EEOC press release:
http://www.eeoc.gov//eeoc/newsroom/release/10-29-15.cfm
EEOC Q&A: http://www.eeoc.gov//eeoc/newsroom/release/10-29-15.cfm
And EEOC Small Business Fact Sheet: http://www.eeoc.gov//laws/regulations/fact-sheet-gina-wellness.cfm
Just Because the Employee is a Temp Does Not Mean That You (The Employer) Do Not Have to Pay Overtime
By: Christina M. Reger
New Jersey snack food company, J&J Snack Foods Inc., learned the hard way.
The company must pay $2.1M to temp workers that were shorted overtime pay. $1.26M of that sum goes directly to 465 works who did not receive overtime wages.
If you are working with a temporary agency, make sure that they are properly paying the individuals that are working for you, and if you don’t know, stop reading, pick up the phone and ask. If you have further questions, pick up the phone and call me.
For the complete story, please visit:
http://www.philly.com/philly/business/labor_and_unions/20151028_N_J__snack_food_maker_paying__2_1_million_to_temp_workers_shorted_overtime_wages.html#dkG02VEAHPS8uKoG.03
The New DOL Overtime Rules are Coming. Big Companies Take Action – Are You?
By: Christina M. Reger
A recent article from Philly.com summarizes how Vanguard Group recently reclassified 2,100 of its employees from exempt (salaried) to non-exempt (hourly) in response to the recent proposed changes to the Fair Labor Standards Act, which employment lawyers expect to go into effect in 2016.
If you were waiting to see what the big companies are doing to address the proposed regulations, here is your sign. They are acting in anticipation of what is to come. Don’t wait until the laws are in effect, or worse, until you get that lawsuit, to take action. Now is the time to consider your workforce and make the appropriate changes.
If you have questions, or would like to discuss the matter further, please contact me.
For a complete copy of the article, please visit:
http://www.philly.com/philly/blogs/inq-phillydeals/Vanguard-2000-workers-to-overtime-list.html#cpRUUVaTkj0FLvuj.03
Department of Labor to Pay $1.5 Million to Employer
By: Christina M. Reger
The Fifth Circuit Court of Appeal the Department of Labor agreed to pay an employer $1.5M to settle claims involving the DOL’s overly aggressive behavior.
I know many of you are probably thinking, “It’s about time!” or “Now the DOL has a taste of their own medicine” or even “What comes around goes around.” Let’s just make sure that when it comes back around to you or your clients, you are ready!
http://www.wagehourinsights.com/dol-news/dol-to-pay-15-million-to-employer-for-bad-faith-investigation/#.VhmCNBUcE_A.email
It’s Not Too Late to Respond – The DOL Proposed Overtime Rules Deadline is September 4th
By: Christina M. Reger
Attention Business Owners:
More than 2,000 comments have already been posted in response to the U.S. Labor Department’s proposals regarding the federal Fair Labor Standards Act’s Section 13(a)(1) exemptions. Under the proposed regulations, the overtime threshold could be as high as $970 per week ($50,440 annually) – a far cry from the current $455 per week ($23,660 per year).
Time is running out to comment or object. The deadline is September 4, 2015. Attached here is an objection from the National Association of Women Business Owners. Do not wait for someone else to object on your behalf. These proposed regulations will impact your business.
EEOC Rules Discrimination Based on Sexual Orientation is Sex Discrimination
By: Christina M. Reger
The News:
In a recent decision, the EEOC ruled that a claim for discrimination based on sexual orientation can be brought under Title VII of the Civil Rights Act of 1964. While many commentators have called this ruling “groundbreaking,” for employers in the counties surrounding Philadelphia, it creates more inconsistency and confusion.
Why Do I Care:
Federal courts have not yet weighed in on this recent EEOC decision. However, the Third Circuit has previously ruled (in 2001) that Title VII does not cover discrimination based on sexual orientation. A lot has changed since 2001, including amendments to the Philadelphia Fair Practices Ordinance which prohibits discrimination based on sexual orientation in Philadelphia.
But what about my business outside of Philadelphia County?
Well, as of now, your employee may be successful in an EEOC charge against your business for sexual orientation discrimination, but you, the employer, will likely prevail on appeal in court – a costly battle to undertake for a small or mid-sized business. Employers in the counties surrounding Philadelphia should be mindful and align their policies with the more stringent standards for the greatest protection.
The Nitty Gritty:
The case involved a Supervisory Air Traffic Control Specialist at a Agency’s Southern Region, Air Traffic Control Tower in Miami, Florida who alleged that he was passed over for a promotion to a permanent position because he was an openly gay male.
The EEOC interpreted Title VII’s prohibition of sexual discrimination to prohibit employer from “’rel[ying] on sex-based considerations’ or take gender into account when making employment decisions.” The Commission held, “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
In reaching its conclusion, the Commission held “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual Orientation’ as a concept cannot be defined or understood without reference to sex.”
Copy of decision attached here.
Your Independent Contractors (1099ers) are Probably Misclassified
By: Christina M. Reger
As non-exempt (hourly) employees, workers are guaranteed minimum wage, overtime compensation, and a host of insurances. Independent contractors do not enjoy such perks. In breaking news last week, the Department of Labor published a memo emphasizing the broad and expansive definition of employee under the Fair Labor Standards Act (FLSA) and concluding (some may say cautioning) that “most workers are employees.”
Due in large part to the growing number of independent contractors and the corresponding decrease in the number of “employees,” Administrator Weil’s memo interpreted the FLSA’s “suffer or permit to work” and provided an “economic realities test” to assist employers in determining whether their workers are employees or truly independent contractors by asking these six simple questions:
Is the work performed an integral part of the employer’s business?
Does the worker have an opportunity to impact profit or loss?
Does the worker have an investment in the business relationship?
Does the worker utilize special skills or take independent initiative?
Is the relationship between the worker and the employer permanent or indefinite?
Does the business exercise significant control over the worker?
Now is the time, to (call me) take a look at your workforce. Otherwise, you could be (calling me) looking at back pay for up to three years, interest, penalties, and oh yeah, attorneys’ fees.
New Proposed Overtime Rules are Here!
By: Christina M. Reger
It’s here – the time has come. It is the moment I have been preaching about. The Department of Labor has issued new regulations regarding overtime. Several significant changes:
The overtime pay threshold: The DOL proposes that the minimum weekly salary to qualify for an exemption under the Fair Labor Standards Act be set at $921 per week ($47,892 annually). In 2016, that number will increase to about $970 a week ($50,440 a year).
The highly compensated employee threshold was also impacted: The total annual compensation requirement needed to exempt highly compensated employees would climb approximately 22% from $100,000 to $122,148 — or the 90th percentile of salaried workers’ weekly earnings.
The salary threshold will no longer remain stagnant: For the first time ever the salary thresholds will be tied to an annual increase without further rule-making. The DOL is proposing using one of two different methodologies to do this — either keeping the levels chained to the 40th and 90th percentiles of earnings, or adjusting the amounts based on changes in inflation by tying them to the Consumer Price Index.
Still up for grabs: The duties related test: The Department of Labor has not (YET) changed any of the exemptions’ requirements as they relate to the kinds or amounts of work performed. In its proposed rule, the DOL seeks comment on whether to adjust the duties test to something more quantitative. Some discussion on this topic has been requiring that a certain percentage of an employee’s time be spent performing an exempt primary duty. Said another way, a certain percentage (50% or higher for example) cannot be spent on non-exempt duties.
Now, once you catch your breath remember, this is not the law – YET. So, plan ahead. Think about your workforce as it relates to your needs, and then call me.
Helpful Resources published by the Department of Labor
http://www.dol.gov/whd/overtime_pay.htm?utm_source=The+Employer+Handbook&utm_campaign=0b98a5c1b7-Email_Newsletter&utm_medium=email&utm_term=0_97bdd2bd3b-0b98a5c1b7-12283989
In case you can’t get enough of this stuff
http://www.wage-hour.net/post/2015/06/30/Proposed-Regulations-Published-Salary-Floor-Would-Be-Doubled.aspx
President Obama’s bylined column in the Huffington Post
http://www.huffingtonpost.com/barack-obama/a-hard-days-work-deserves-a-fair-days-pay_b_7691922.html
EEOC Issues Guidance on Pregnancy Discrimination
By: Christina M. Reger
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance), along with a question and answer document and a fact sheet for small businesses.
http://www.eeoc.gov//laws/guidance/pregnancy_guidance.cfm
If you would like to discuss any concerns regarding these guidelines or need to update your policies to conform, please contact me.