On September 11, 2020, the United States Department of Labor (DOL) issued revisions to the Rule implementing the Families First Coronavirus Response Act (FFCRA) to clarify workers’ rights and employers’ responsibilities regarding FFCRA paid leave.  The revised Rule will take effect on September 16, 2020. The Ruling The revised Rule is the DOL’s response to a ruling entered on August 3, 2020, by the United States District Court for the Southern District of New York (District Court) in a lawsuit filed by the State of New York challenging certain provisions of the Rule.  As previously reported, the District Court granted partial summary judgment in favor of the State of New York and ruled that four parts of the Rule were invalid:  (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave (the “work-availability requirement”); (2) the definition of “health care provider” for purposes of the “health care provider or emergency responder” exemption; (3) the requirement that an employer consent in order for an employee to take intermittent leave under the FFCRA; and (4) the requirement that an employee submit documentation to their employer as a pre-condition to leave.  Following the District Court’s ruling, employers in New York faced uncertainty as they evaluated whether and how to apply the FFCRA. The Revised Rule In recognition of the “pressing need for clarity in light of the District Court’s decision,” the DOL issued the revised Rule “to reaffirm its regulations in part, revise its regulations in part, and further explain its positions.” Work-Availability Requirement The revised Rule first reaffirms the work-availability requirement, explaining that an employee may only take paid sick leave or expanded family and medical leave under the FFCRA to the extent that any qualifying reason is a but-for cause of his or her inability to work.  Thus, if an employer has no work for the employee to perform, the employee is not entitled to paid sick leave or expanded family and medical leave under the FFCRA. Employer Approval for Intermittent Leave Likewise, the revised Rule reaffirms that employer approval is needed to take intermittent FFCRA leave in all situations in which intermittent FFCRA leave is permitted.  On this point, the DOL explained that the employer-approval condition balances the employee’s need for leave with the employer’s interest in avoiding disruptions to operations. According to the DOL, the employer-approval condition allows both employers and employees flexibility in agreeing upon telework and scheduling arrangements that may reduce or even eliminate an employee’s need for FFCRA leave by reorganizing work time to accommodate the employee’s needs related to COVID-19. The Definition of “Health Care Provider” With regard to the definition of “health care provider” for purposes of the “health care provider or emergency responder” exemption, the revised Rule adopts an amended regulatory definition including: (1) the FMLA definition of “health care provider” (any employee who is a health care provider under 29 CFR 825.102 and 825.125), and (2) any other employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated and necessary to the provision of patient care and, if not provided, would adversely impact patient care. While the DOL’s expanded definition of “health care provider” is broader in scope than the classic FMLA definition of “health care provider,” the DOL made clear that it is not enough that an employee works for an entity that provides health care services.  Certainly the revised definition includes nurses, nurse assistants, medical technicians, and any other persons who directly provide patient services, and would also include individuals whose work impacts diagnostic, preventative, and treatment services, such as lab technicians.  Other employees covered by the revised definition include those who provide services that if not provided would adversely affect patient care.  The Supplementary Explanation that precedes the revised Rule explains that examples include, individuals who bathe, dress, hand feed, or take vital signs of patients, individuals who set up equipment for medical procedures, and individuals who transport patients and samples.  The DOL also provided a non-exhaustive list of employees who are excluded from the definition of “health care provider,” including IT employees, building maintenance staff, human resources personnel, cooks, food services workers, records managers, and billers.  According to the DOL, the services provided by these employees may be related to patient care but they are too attenuated to be integrated and necessary components of patient care.  As such, healthcare employers should immediately evaluate the revised Rule and its impact on their leave decisions. Timing of FFCRA Documentation Finally, the revised Rule clarifies that an employee is not required to submit documentation concerning the need for leave prior to taking paid sick leave or expanded family and medical leave, but rather should submit documentation as soon as practicable.  The DOL notes that in most cases, the requirement to submit documentation will be when the employee provides notice of the employee’s need for leave.  However, when the need for expanded family and medical leave is foreseeable, such as when an employee receives advance notice of a school closure, the employee is likewise required to provide notice as soon as practicable, which would occur before taking leave. Updated FAQs In addition to issuing the revised Final Rule on September 11, 2020, the DOL updated its FAQs to reflect its new guidance concerning the application of the FFCRA. Next Steps for Employers It is yet to be determined whether the revised Rule will satisfy the concerns addressed in the District Court’s ruling, or whether the DOL will face additional challenges by the State of New York or other jurisdictions.  Regardless, employers should apply the FFCRA consistent with the revised Rule and should consult counsel with any questions.  Importantly, health care employers who may have exempted some or all of their employees from the FFCRA based on the DOL’s prior definition of “health care provider” for purposes of the “health care provider or emergency responder” exemption should consult with counsel to determine the new scope of exempted employees and the proper path forward for their organization.

On April 1, 2020, the United States Department of Labor (DOL) issued a Final Rule implementing the Families First Coronavirus Response Act (FFCRA).  Shortly thereafter, the State of New York filed suit against the DOL, arguing that several features of the Final Rule exceeded the DOL’s authority under the FFCRA. Yesterday, the United States District Court for the Southern District of New York granted partial summary judgment in favor of the State of New York and “vacated” four aspects of the Final Rule. Specifically: (1) the “work-availability requirement”; (2) the definition of “health care provider” for purposes of the “health care provider or emergency responder” exemption; (3) the requirement that an employer consent in order for an employee to take intermittent leave under the FFCRA; and (4) the requirement that an employee submit documentation to their employer as a pre-condition to leave. The Court’s ruling could have a significant impact on how FFCRA leave is administered in New York, and potentially across the Country if other states follow in New York’s footsteps. First, without the “work-availability requirement,” an employee is entitled to paid FFCRA leave even if an employer is temporarily closed or they are placed on furlough because the employer does not have work.  The Court analogized a furloughed employee to a teacher on paid parental leave who would still be considered to be on “leave” even if school is called off for a snow day. Although the Court invalidated the requirement, on this issue the Court acknowledged that the statutory language on this point was ambiguous, and that the DOL has the authority to issue guidance on the matter.  Further, while the Court held that the DOL’s “barebones explanation for the work-availability requirement is patently deficient,” it did not find that the conclusion was inconsistent with the statute.  As a result, even leaving aside the possibility of a different outcome on appeal, the DOL may be able to address the Court’s concern through a more thoroughly reasoned explanation of its interpretation. Second, the Court’s Order dramatically narrows the scope of the “health care provider or emergency responder” exemption, which allows an employer of an employee who is a health care provider or emergency responder to exclude the employee from taking leave under the FFCRA.  The DOL’s Final Rule defined a “health care provider” much more broadly than the statute as: anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity.  This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. The DOL’s broad definition provided many health care related employers the option to apply the exemption to virtually all of their employees. By vacating the Final Rule’s definition of “health care provider,” the only positions clearly included within the definition are those identified in the Family and Medical Leave Act’s (FMLA) definition of “health care provider,” which is limited to “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate)” or “any other person determined by the Secretary to be capable of providing health care services.” (A listing of those other persons is available here).  In rejecting the DOL’s definition, the Court acknowledged that the DOL, though the Secretary of Labor, has authority to expand the definition of the term beyond what is set forth in the statute.  However, it required that there be “at least a minimally role-specific determination” with respect to the application of the exemption.  As a result, even absent an effective appeal, the DOL could take steps to refine this definition, in which case it will be more likely to receive deference from a reviewing court. The Final Rule permits employees to take FFCRA leave intermittently only if the employer and employee agree, and even then, only for a subset of qualifying reasons where there is a minimal risk that the employee will spread COVID-19 to other employees. On this point, the Court agreed with the limitation on the reasons for which employees may take intermittent leave but vacated the requirement that an employer must consent to intermittent leave. Accordingly, the ruling would not require employers to grant intermittent leave when there is a risk of spreading COVID-19 to other employees. However, this decision indicates that employers who do not currently permit intermittent leave under circumstances where there is not a risk of spreading COVID-19 may be at risk if they do not do so going forward. Finally, the Court found that the requirement that an employee submit documentation concerning the need for leave as a condition precedent to taking FFCRA leave was inconsistent with the notice provisions contained in the FFCRA. At this point, it is unclear whether the DOL will move to stay the order pending appeal to the Second Circuit.  What is clear, unfortunately, is that employers are once again faced with uncertainty as they evaluate whether and how to apply the FFCRA.  The Court’s opinion does not apply beyond New York, and it does not mean that the problems with the DOL’s Final Rule cannot be remedied, but employers should take notice and consult with counsel to determine the proper path forward for their organization.

On April 1, 2020, the Wage and Hour Division of the Department of Labor (“DOL”) issued temporary regulations (“Regulations”) to implement the Public Health Emergency Leave (“Emergency FMLA Leave”) and Emergency Paid Sick Leave (“Paid Sick Leave”) benefits available under the Families First Coronavirus Response Act (“the “Act”). The Regulations took immediate effect, on the effective date of the Act, and remain in effect through December 31, 2020, when the Act expires. The Regulations expand on the DOL’s guidance or “Families First Coronavirus Response Act: Questions and Answers,” which were issued late the week of March 23 and updated over the following weekend.  In some instances, the Regulations are inconsistent with the DOL’s former guidance – particularly with regard to: (1) The reasons an employee may take Paid Sick Leave, (2) The applicability of the integrated employer and joint employer tests which are used to determine the number of employees for purposes of coverage under the Act, and (3) The documentation employers may request to determine an employee’s eligibility for leave under the Act. The DOL updated its previous guidance or Questions and Answers on April 1, 2020 (here), to conform to the Regulations. A brief summary of several sections that (1) depart from the DOL’s former guidance or (2) provide new information the DOL did not previously address is below. Government Orders The Regulations expand the qualifying reasons for Paid Sick Leave to include containment, shelter-in-place and stay-at-home orders.  However, an employee is only entitled to Paid Sick Leave if the order “cause[s] the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order.” Significantly, the Regulations further broaden “Subject to a Quarantine or Isolation Order” to include: when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them. Advice to Self-Quarantine The Regulations state that an employee has been “advised by a health care provider to self-quarantine due to COVID-19 concerns” for purposes of Paid Sick Leave if: (i) A health care provider advises the Employee to self-quarantine based on a belief that— (A) the Employee has COVID-19; (B) the Employee may have COVID-19; or (C) the Employee is particularly vulnerable to COVID-19; and (ii) following the advice of a health care provider to self-quarantine prevents the Employee from being able to work, either at the Employee’s normal workplace or by Telework. Similarly, the Regulations provide that an employee may take Paid Sick Leave to care for another who has received any of the same recommendations.  On that point, the Regulations explain that to qualify for Paid Sick Leave, the other person must be: an Employee’s immediate family member, a person who regularly resides in the Employee’s home, or a similar person with whom the Employee has a relationship that creates an expectation that the Employee would care for the person if he or she were quarantined or self-quarantined. For this purpose, ‘individual’ does not include persons with whom the Employee has no personal relationship. Seeking a Diagnosis With respect to people who suspect that they are ill, the Regulations clarify that if an employee is taking leave because they are “experiencing COVID-19 symptoms and seeking medical diagnosis,” the employee’s Paid Sick Leave “is limited to the time the Employee is unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test.” Employer Coverage The Regulations provide that all common employees of joint employers or all employees of integrated employers must be counted together to determine coverage under the Act.  We have covered this issue in more detail here. Notice of Need for Leave and Documentation of Need for Leave The Regulations regarding documentation of the need for leave are a departure from the DOL’s former guidance, which suggested that an employer could require a variety of documents with a request for Paid Sick Leave or Emergency FMLA Leave.  The Regulations provide that an employer may not require a notice of the need for leave to include documentation beyond what is listed below. Before taking either Paid Sick Leave or Emergency FMLA Leave, all employees must give their employers documentation that includes: (1)  The employee’s name; (2)  The date(s) for which leave is requested; (3)  The qualifying reason for the leave; and (4)   A written or oral statement that the employee is unable to work because of the qualifying reason for leave. Before taking a Paid Sick Leave or Emergency FMLA Leave, some employees must additionally provide: o   For an employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the government entity that issued the Quarantine or Isolation Order o   For an employee advised by a health care provider to self-quarantine due to COVID-19 concerns: the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19. o   For an employee caring for an individual subject to a federal, state or local quarantine or isolation order or a health care provider’s advice to self-quarantine due to COVID-19 concerns: either (a) the name of the government entity that issued the Quarantine or Isolation Order to which the individual being cared for is subject or (b) the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19. o   For an employee caring for the employee’s child whose school or place of care is closed or the child’s care provider is unavailable due to a public health emergency) or Emergency FMLA Leave: the name of the employee’s child (or children), the name of the closed or unavailable school or child care provider, and a representation that no other suitable person will care for the employee’s child when the employee takes Paid Sick Leave or Emergency FMLA Leave. In addition to the information specifically identified, the Regulations generally state that an employer may request that an employee provide additional material as needed to support the employer’s request for tax credits pursuant to the Act.  And, the Regulations state that employers are not required to provide an employee’s request for leave if the employee fails to provide materials sufficient to support the applicable tax credit.  With respect to documents required for tax credits, the Regulations refer to https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs (“IRS FAQs”) for more information. Significantly, neither the Regulations nor the IRS FAQs specify any additional information employees must provide an employer to take Paid Sick Leave based on experiencing COVID-19 symptoms and seeking medical diagnosis or for employees experiencing any other substantially similar condition specified by the federal government. While the Regulations answer questions about the process of requesting leave under the Act, the Regulations leave open questions about: Whether employers can require additional documentation substantiating the need for leave after a Paid Sick Leave or Emergency FMLA Leave is approved. Whether the DOL will issue additional Regulations or the IRS will issue additional guidance on the documentation process in the coming weeks. Recordkeeping Finally, under the Regulations, an employer must: Retain all documentation related to an employee’s request for or entitlement to Paid Sick Leave or Emergency FMLA Leave for four years, regardless of whether the leave was granted or denied. Document and keep any oral statements an employee provided to support a request for Paid Sick Leave or Emergency FMLA Leave for four years. Have an authorized officer document that the employer is eligible for the small employer exemption to the Act when the employer denies an employee’s request for Paid Sick Leave or Emergency FMLA Leave (and keep such documentation for four years). Notably, the Regulations provide that a small employer must post a notice regarding the Act, even if the employer determines that it is exempt.

On March 28, 2019, the U.S. Department of Labor (“DOL”) announced a proposed rule to update the regular rate requirements under 29 CFR part 778 and section 7(e) of the Fair Labor Standards Act (“FLSA”). The FLSA requires employers to pay non-exempt employees overtime compensation for any time worked over 40 hours in a workweek. The overtime rate equals one and one-half times the “regular rate,” which is defined as “all remuneration for employment paid to, or on behalf of, the employee,” with some exceptions. More specifically, the regular rate must include wages, bonuses, commissions, and any other forms of compensation. Court decisions interpreting what must be included in the calculation of the “regular rate” have caused confusion for employers, who may be unsure whether offering non-exempt employees extra perks could increase the regular rate and, by extension, overtime pay. In addition, the uncertainty stemming from what must be included in the “regular rate” could lead to costly wage and hour actions by employees. When announcing the new proposed rule, the DOL opined that the current regulations “do not sufficiently reflect … developments in the 21st-century workplace,” and stated that the following forms of compensation would be excluded from an employee’s regular rate: 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; certain reimbursed travel expenses; discretionary bonuses; benefit plans, including accident, unemployment, and legal services; and tuition programs, such as reimbursement programs or repayment of educational debt. The proposed rule also seeks to clarify whether other forms of compensation, such as payments for meal periods, call-back pay, and others, must be included in the regular rate. The proposed rule will remain open to comments until May 28, 2019. Employers with questions regarding the calculation of the “regular rate” (or other compensation-related issues) would do well to consult with able counsel.

On Tuesday November 6, 2018, the U.S. Supreme Court unanimously ruled that the Age Discrimination in Employment Act (“ADEA”) applies to state and local government employers with fewer than 20 employees.  The Supreme Court’s decision, in Mount Lemmon Fire District v. Guido, affirmed the U.S. Ninth Circuit Court of Appeal’s ruling and resolved a Circuit Court split regarding the ADEA’s coverage of public employers. Due to budgetary shortfalls, the Mount Lemmon Fire District, a political subdivision in Arizona, terminated its two oldest full-time firefighters, John Guido and Dennis Rankin, who sued alleging discrimination under the ADEA. Mount Lemmon sought dismissal of the case on the grounds that it was not an employer as defined and  covered by the ADEA. Upon enactment in 1967, the ADEA covered only private sector employers.  However, in 1974, Congress amended the ADEA to redefine an employer as “a person engaged in an industry affecting commerce who has twenty or more employees…[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State…”  (emphasis added). The statutory language proved pivotal in the case, as the Supreme Court held the phrase “also means” created an entirely new, separate category of employer covered under the ADEA. The Supreme Court reasoned that because Congress did not apply the numerosity requirement of private sector employers to the political subdivisions, small state and local government subdivisions need not have 20 or more employees to fall within the ADEA’s scope. While Mount Lemmon warned that this interpretation would too broadly extend the ADEA’s scope, potentially causing increased litigation and legal costs and threatening necessary public services, the Supreme Court ultimately disagreed. Justice Ruth Bader Ginsburg, who authored the opinion, acknowledged that this interpretation would give the ADEA “a broader reach than Title VII. But this disparity is a consequence of the different language Congress chose to employ.”  The Court was further unconcerned with the risk of emergency service shrinkages, noting that the Equal Employment Opportunity Commission has followed this same interpretation for 30 years without problematic public services cuts.  The Court concluded that the ADEA’s definition of employer left “scant room for doubt” that state and local governments are employers under the ADEA, regardless of their number of employees. With its broader reach, state and local employers should be mindful of the ADEA’s coverage and requirements. The Polsinelli Labor and Employment attorneys are here to address and assist with any ADEA questions or cases.

By now, most employers are familiar with their obligations under the Americans with Disabilities Act of 1990 (ADA) to not discriminate against, and possibly provide accommodations for, qualified individuals with disabilities. However, these same employers may not be aware of the newest frontier of plaintiffs’ lawsuits — claims that company websites do not comply with the ADA. Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Places of public accommodations include businesses that are generally open to the public, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, hospitals, and doctors’ offices. Title III of the ADA also requires newly constructed or altered places of public accommodation, as well as commercial facilities (privately owned, nonresidential facilities, including factories, warehouses or office buildings whose operations affect commerce), to comply with ADA standards. At the time of the ADA’s passage, the internet was not a consideration in the ADA’s provisions or implementation. However, given the internet’s now prevalent use for consumer applications, the ADA’s requirements now extend to include company websites. The growing consensus of the courts and the United States Department of Justice (DOJ), the agency responsible for enforcing Title III of the ADA, is that websites are places of public accommodation that must comply with the ADA. State laws may also impose similar compliance obligations on companies. The DOJ is reviewing websites for compliance. In actions brought by the DOJ, monetary damages and civil penalties may be awarded. Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation. Private parties may also file suit to obtain court orders to compel companies to bring their websites into compliance with the ADA’s public accommodation provisions. No monetary damages are available in such suits under federal law; however, reasonable attorneys’ fees may be awarded — making these attractive potential class actions for plaintiffs’ attorneys. State laws may also provide for monetary damages. The DOJ has not yet established binding regulations governing website ADA compliance, and is not expected to do so until 2018 However, it appears to be a near certainty that the DOJ will adopt the current “Web Content Accessibility Guidelines (WCAG-2.0) Level AA” (WCAG) as the relevant regulations. The WCAG explain how to make web content more accessible to people with disabilities. Web content generally refers to the information in a web page or web application, including natural information such as text, images, and sounds and code or markup that defines structure, presentation, etc. Until the adoption of binding regulations, the plaintiffs’ bar and the DOJ seem to be treating WCAG as the de facto standards for ADA compliance. Therefore, compliance with WCAG is highly recommended. Evaluating reasonable accommodation issues for applicants and employees is complicated enough. To keep pace with companies’ ever-growing list of compliance obligations, companies are strongly encouraged to seek counsel to determine whether their websites comply with the ADA and any applicable state laws.

On October 30, 2017, the U.S. Department of Labor (DOL) filed an appeal in the United States Court of Appeals for the Fifth Circuit of the August 31, 2017 ruling by the United States District Court for the Eastern District of Texas that invalidated proposed revisions to the Fair Labor Standards Act (FLSA) overtime regulations. Judge Mazzant of the ED of Texas previously issued a nationwide injunction preventing implementation of the regulations that were to take effect on December 1, 2016. According to a DOL statement, “On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal this decision to the U.S. Court of Appeals for the Fifth Circuit. Once this appeal is docketed, the Department of Justice will file a motion with the Fifth Circuit to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be.” The regulations would have approximately doubled the minimum salary requirement for an employee to meet the requirements of the executive, administrative, and professional exemptions to the minimum wage and overtime requirements under the FLSA (the so-called “white collar” exemptions). Employers applauded when Judge Mazzant issued the nationwide injunction. Employers were further encouraged when the DOL published a Request for Information (RFI) regarding the overtime final rule in July of 2017. The comment period for the RFI has ended, and the DOL is reviewing those submissions. Based on the statement issued, the DOL’s appeal appears designed to provide additional time to rewrite the overtime rule and potentially render the Fifth Circuit litigation moot. We continue to monitor these developments and will provide information and analysis as it becomes available.

The impending change to the salary threshold for the “white collar” overtime exemptions under the Fair Labor Standards Act (“FLSA”) (from $23,660 to $47,476) has employers making tough decisions—“Should we raise an employee’s salary above the threshold?” “Do our employees still qualify for the exemption, even with a raise?” “Can we keep our employees’ pay the same?” Some employers, unable to make significant salary increases or concerned that an employee may not meet the exemption requirements, are increasingly considering the “fixed salary for fluctuating hours” method of compensation for non-exempt employees. This so-called fluctuating workweek method allows a previously exempt employee to continue to receive a regular salary, but does not require the employer to raise the once-exempt employee’s salary to the new threshold. Under this method, the employee will receive a fixed salary as straight-time pay for whatever number of hours he or she works in a workweek (whether 30 or 50 hours). The employee must receive extra compensation (½ times the regular rate for that workweek) for any hours worked over 40 in the workweek. In most cases, bonus or incentive compensation must be included in overtime calculations. This typically requires employers to allocate bonus or incentive compensation to the workweek(s) to which it relates, and then recalculate and pay the employee additional amounts. The fluctuating workweek method is permissible only if: The salary is sufficiently large to ensure that no workweek will be worked in which the employee’s earnings from the salary will fall below minimum wage (no matter how many hours are worked in a workweek); and The employee clearly understands that the salary covers whatever hours the job may demand in a particular workweek and that the employer pays the salary even if the workweek is one in which only a small number of hours is worked. To meet this requirement, it is always helpful to have this understanding in a memorandum or letter that the employee signs. If your company is considering its options as the December 1, 2016 change to the salary threshold looms, the fixed salary for fluctuating hours is worth a look. But, employers should be aware that it is not without its drawbacks. As with all other non-exempt employees, employers compensating employees on the fixed salary for fluctuating hours method must require employees to accurately track their time. For employees who have historically been treated as exempt, this is not as easy as it sounds. Moreover, it is crucial to have an estimation of the amount of overtime the employees in question work. If the employees often work more than 40 hours in a workweek, it may make more financial sense to increase their salary (assuming they also meet the requirements of an exemption). While it may not be a panacea, the fixed salary for fluctuating hours could be a possible solution for some recent and future FLSA headaches.

Compliance with the Family and Medical Leave Act (“FMLA”) continues to cause employers frequent confusion and consternation. Even human resources professionals well-versed in the FMLA’s ins and outs throw their hands in the air in exasperation over how to handle a unique leave situation. For those of you who can relate, the Department of Labor (“DOL”) has issued its new Employer’s Guide to the Family and Medical Leave Act (“Guide”) to, according to the DOL, “provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA” and “increase public awareness of the FMLA.” The 76-page Guide should be a useful tool for employers. It is organized in chronological order and tracks the regulations, from analyzing coverage and eligibility issues through an employee’s return to work. One of the early pages of the Guide sets forth “The Employer’s Road Map to the FMLA,” providing a quick-reference flowchart of the FMLA cycle and referencing required forms and notices. Each section discusses the steps in the FMLA process and includes helpful “Did you Know?” sections that touch on issues employers may overlook or not be aware of, along with practical examples. For example, the Guide discusses the certification process and suggests what an employer may and may not do in connection with the certification paperwork it receives (e.g., authentication, clarification, etc.). The Guide also provides an in-depth analysis of military caregiver leave—often a less familiar area for employers. In addition, the Guide references the specific FMLA regulations applicable to each section and includes illustrations of the forms and notices required for each step of the FMLA process. Employers should keep an electronic version of the Guide handy, as the Guide links to the applicable FMLA regulations, notices, and forms. Overall, for those new to handling the process and seasoned human professionals alike, the Guide may help to navigate the FMLA process. The Guide, however, does not provide any guidance beyond the letter of existing regulations. And, stay tuned—the DOL has indicated that it will be issuing a new FMLA notice poster soon.

Many employers conduct some level of background screening on applicants and, at times, current employees.  From the employer perspective, the benefit is clear—employers want to know who they are hiring and avoid potential claims of negligent hiring. More and more, however, state and federal laws and the agencies that enforce them are creating obstacles.  “Ban the box” legislation, the Fair Credit Reporting Act (“FCRA”), and the Equal Employment Opportunity Commission’s (“EEOC”) guidance all restrict the information employers can request, how they request it, and how they can use it.  Some employers are throwing up their hands and throwing in the towel.  But employers need not panic.  Although increasingly more complicated, background checks can still be a useful tool—employers just need to be aware of the changing landscape. First, employers should stay abreast of changes in local and state law.  Has the state or municipality enacted “ban the box” legislation (i.e., a prohibition against asking on an employment application whether an applicant has a criminal record)?  Is such legislation on the horizon?  If so, this question must be removed from job applications.  Even if not, consider removing the question from job applications and requesting the information at a later point in the hiring process. Second, if background checks are run through a third party, make sure to comply with FCRA requirements.  Among other things, employers must make a disclosure in a separate documentto the individual that the background check will be obtained for employment purposes and receive authorization from the individual.  If the decision not to hire the individual is based on the background check, the employer must notify the individual of the adverse action, provide the individual with a summary of rights, and provide the individual with a copy of the background check information on which the decision is based.  The FCRA has additional requirements, as do some states, so it is important to understand all applicable obligations. Finally, once the background check is run, be careful how it is used.  In August 2012, the EEOC issued enforcement guidance regarding employer use of arrest and conviction records.  The EEOC has long taken the position that an employer’s use of an individual’s criminal history when making employment decisions may violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  The EEOC’s primary concern is discrimination on the basis of race and national origin, because minorities and some ethnic populations have a higher rate of arrest and conviction. The EEOC’s position is that a covered employer is liable for violating Title VII when an individual demonstrates that (1) the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group (e.g., a blanket policy that the employer will not hire any individual with a criminal record) and (2) the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. Employers can establish that an exclusion is job related and consistent with business necessity in two ways: (1) validate the criminal conduct exclusion for the position in question with the EEOC’s Uniform Guidelines on Selection Procedures; or (2) consider the nature of the crime, the time elapsed, and the nature of the job and provide an opportunity for an individualized assessment. Failure to understand these obligations could cause liability issues for employers.  There has been an uptick in FCRA cases, and the EEOC continues to pursue claims of discrimination based on employers’ background check policies and practices.  Employers, however, can still conduct background checks, but should be mindful of all applicable legal obligations.