Working on July 4th… Downtime or Overtime?

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Reposting due to popular demand. 

Nearly two and half years into the pandemic, people are itching to connect in group settings. The 4th of July is a major holiday where folks get to spend time with loved ones, travel and embrace their time off work.

This holiday is always eagerly anticipated, so much so that many employers have started providing employees with a four-day weekend when the holiday falls on a Tuesday or Thursday, or a three-day weekend, when the holiday falls on a weekend, Monday or Friday.  Other employers provide employees with a half day off on July 3rd.  It is natural, then, that when the holiday falls mid-week, employers find themselves fielding PTO requests for the days surrounding the holiday.  The truth is, however, that the vast majority of employers only provide employees with the day off on July 4th itself, no matter what day of the week it falls on.

This leads to an interesting question.  Does an employer have to pay an employee overtime for requiring them to work on July 4th?

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It’s Hurricane Season Once Again!

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Is it June already?  I wish that only meant that it is mango season in Florida, but unfortunately, it means the start of another hurricane season.  Last year, we were lucky enough to have Hurricane Specialist Bryan Norcross’s forecast for the 2021.  If you want to see whether Bryan got it right last year or rather watch a video of me presenting hurricane preparedness tips, you can watch my segment in “Breaking Through The Noise: Labor & Employment Issues Post-Pandemic” (timestamp: 1:44:47-1:53:00) available ON DEMAND. Feel free to forward the link to your friends and colleagues.

For those who prefer to read, below are tips on how to prepare your business for the new hurricane season.

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U.S. Supreme Court Cracks Down on Late Arbitration Demands

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Does your company have employees that sign agreements to arbitrate any disputes arising from their employment contracts? Then a recent U.S. Supreme Court case serves as a cautionary tale for companies looking to enforce these arbitration agreements.  The lesson is to demand arbitration as early as possible or else you risk waiving the right if you make a motion to compel arbitration later down the road.

On May 23, 2022, the United States Supreme Court decided Morgan v. Sundance, Inc., which concerned the correct test to apply when deciding whether a party has waived the right to arbitrate.  In this case, Plaintiff was an hourly employee at a Taco Bell owned by Sundance.  He later filed a nationwide collective action suit against Sundance, alleging wage and hour violations.  In Plaintiff’s employment contract, he signed an agreement to arbitrate any employment disputes.  However, the Defendant litigated the case in federal court for several months making motions to dismiss, answering the complaint, and attending mediation, before ultimately making a motion to compel arbitration under the Federal Arbitration Act (“FAA”).  The issue for the Court was whether the Defendant had waived their right to arbitrate the matter.

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USCIS Expands Automatic Extension of Select EADs from 180 to 540 Days

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On May 4, U.S. Citizenship and Immigration Services will increase the automatic extension of work authorization from 180 to 540 days for certain applicants for an employment authorization document (EAD).  The existing requirements of the rule will remain the same.  To qualify for the now 540 day automatic extension of work authorization, the individual:

  1. Must hold an EAD issued under one of the qualifying categories – A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19.
  2. Must have filed a Form I-765 application for work authorization to extend the EAD before the EAD expired.
  3. Must have filed the Form I-765 under the same qualifying category as reflected on the face of the expiring EAD.  (In the case of employees with Temporary Protected Status (TPS), any combination of C19/A12 on the EAD and Form I-765 fee receipt applies.

*In the case of H-4, L-2, and E dependent status, they must also present an unexpired Form I-94 reflecting their H-4, L-2, or E status, as applicable.
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Wake Up: What Every Florida Employer Needs to Know About the “Stop WOKE Act”

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We also discussed this in our Labor & Employment client alert here.

On March 10, 2022, the Florida legislature passed House Bill 7 (“HB 7”), the Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act, officially named “Individual Freedom,” but also known as the “Stop WOKE Act.”  The bill applies to Florida employers with 15 or more employees and aims to restrict how employers conduct training on race and sex.  Governor DeSantis signed the bill into law on April 22, 2022.  The bill also imposes limits on how public schools can talk about race and gender, which is outside the purview of this blog.

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Can You Force Your Employees to Arbitrate Sexual Harassment Claims?

Simple answer – nope!   On February 10, 2022, inspired by the #MeToo movement, the U.S. Senate passed H.R. 4445, an amendment to the Federal Arbitration Act (“FAA”), also known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”  I guess the acronym would be “EFASASHA,” but that looks kind of silly, so I’ll refer to it as the “Act.”  President Biden signed this bill into law on March 3, 2022.

If your employees have signed pre-dispute arbitration agreements (e.g., as part of a contract or offer letter), they can no longer be forced to arbitrate cases involving sexual harassment or sexual assault.  The Act also prohibits employers from requiring employees to sign agreements waiving their right to bring sexual harassment/sexual assault claims jointly or on a class basis.

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Is telework a reasonable accommodation?

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I contribute an Employment Law advice column to The Human Resources Association of Broward County newsletter.  A reader recently asked a question that I thought was important and I wanted to share.

ASK JANET:

If an organization does not allow telework for any of their employees, but an employee is requesting an accommodation under the ADA to telework due to their medical condition. Can the organization deny that request because they do not allow anyone else to do it?

 

Dear Confused in Cocoa:

This is a great question!   Under the ADA, you are required to provide reasonable accommodations needed so that the employee can perform his/her essential functions. A request to work from home due to a disability triggers an obligation for your organization to engage in an interactive discussion with the employee to understand exactly what the employee is requesting and why the employee believes that granting this request will allow the employee to perform the essential functions of his/her position.

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Bottom of the Ninth

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We are now in the fourth week of February, yet a familiar tradition has not taken place.  Major League baseball players have not yet reported to their respective camps for Spring Training.  Unable to reach a new collective bargaining agreement with the MLB Players Association last December, the MLB owners imposed a lockout preventing the players from reporting to work until a new deal is reached.
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Registration for H-1B Lottery Opens March 1

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Each fiscal year, which runs from October 1 to September 30, there are 65,000 H-1B visas available plus an additional 20,000 H-1B visas for individuals who hold an advanced degree from a U.S. university.  The H-1B visa is for aliens in “specialty occupations.” A specialty occupation is defined as an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s or higher degree as a minimum for entry into the occupation in the United States.  Because there is more demand for H-1B visas than the 85,000 visas available, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to determine who can file an H-1B petition.

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Sundays – A Day to Pray, Not For Pay

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In the midst of the Great Resignation, you would think employers would put forth the extra effort to accommodate employees (and to comply with the law).  Yet, last week, the EEOC announced a settlement in a religious discrimination case in which the employer, an Amazon delivery partner, terminated an employee after he refused to work on a Sunday — he went to church instead.  In fact, when he was hired, the employee told the employer he could not work on Sundays because he attended church on Sundays.  The employer asked that the employee work on Saturdays and he agreed.  The employer not only forgot its agreement but also the law. Continue Reading

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