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Pre-COVID, employees could pop into the office supply closet for the ream of paper they needed to print that 50-page report, or the box of staples, pens and pack of tabs to refill their dwindling supply. Now, they may be buying office supplies as they work from home. In order to reduce the risk of potential wage and hour claims, and ensure that costs do not spiral out of control, employers will need to develop remote work purchasing and reimbursement policies.
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I’m sure you’ve been reading enough about COVID or how a Biden administration might swing the workplace pendulum back towards employees and unions (I think it’s a good bet), so let’s focus on the Fair Labor Standards Act (FLSA) for now. Can you imagine a time when employees will have to travel again for work? Well, strap on your seat belts because, on November 3, 2020, the U.S. Department of Labor issued an opinion letter on compensating travel time!
Here’s the breakdown.
As many of you know, I have a crystal ball on my desk. This past August, I was asked to predict Florida’s minimum wage increase starting in January 2021. The crystal ball revealed that Florida would experience either an 8¢ or 9¢ increase from its current $8.56 minimum wage. Late last month, Florida announced a 9¢ increase.
The crystal ball was on the “money”. So what does this increase mean for Florida employers?
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The U.S. Department of Labor (“DOL”) recently posted a proposed rule meant to help employers determine whether individuals performing services are employees or independent contractors for purposes of federal wage and hour laws. Misclassifying an employee as an independent contractor is risky and exposes an employer to potential expensive lawsuits, including for unpaid minimum wages and overtime, liquidated (or double) damages, civil monetary penalties, costs and fees, and, in some instances, criminal penalties. In addition, classification errors can lead to employment tax claims and penalties. Employers want more clarity and the DOL is trying to do just that.
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With approximately 3.6 billon people expressing themselves using social media platforms such as Facebook, Twitter, LinkedIn, YouTube, Instagram, and most recently, TikTok, employers have to ask themselves some important questions regarding their employees’ usage of these applications. Should employers set boundaries as to what they will or will not accept in their employees’ online posting activities? Can employers legally terminate an employee for something posted to their personal social media account?
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For those employers who also have New York employees, heads up: a new leave law will apply to you starting this Wednesday.
New York has enacted a state-wide, permanent sick leave law, separate and apart from the state’s COVID-19 Quarantine Leave Law. In an unusual twist, this state law in some cases affords a greater benefit to employees than local sick leave law counterparts, such as New York City’s Earned Safe and Sick Time Act (ESSTA).
Effective September 30, 2020, New York’s Paid Sick Leave (NYPSL) Law goes into effect, which is likely to require changes to your NY policies. The new law applies to all private employers in New York, and requires paid or unpaid, job-protected sick leave as outlined below. Continue Reading
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Most businesses in this country (and the world, for that matter) remain hobbled as a result of the COVID-19 pandemic. (Amazon is the exception. Another notable exception is Peloton, the exercise bike maker, which is glowing in its 172% surge in total revenue, with gains in subscribers and demand for its fitness products.) But employees in several industries, including travel, hospitality and entertainment, remain uncertain about their futures.
Many struggling but optimistic employers have continued to offer medical, dental and other benefits to employees on “furlough.” Before the pandemic, furlough was a concept more familiar to European countries, with furlough provisions mandated by law, than to U.S. employers. We’ve now settled on the concept that the employer has not severed the employment relationship of an employee on furlough (still active in the HR system) but the employee is not actively working and is not being paid except for the value of the benefits that the employer continues to provide.
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The 2020 Legislative Session concluded in May and bills have been making their way to the Governor for signature. Although this has progressed more slowly than is ordinary due to the ongoing pandemic, several labor and employment-related bills have been signed into law nonetheless. Here are three particularly notable bills that went into effect on July 1st:
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The Black Lives Matter (“BLM”) movement has sparked significant emotion in the past few months. As the NBA restarts the season, TV viewers will see the phrase emblazoned on the courts and on some players’ jerseys. What you won’t see on TV are the large employers which have faced significant backlash for attempting to prohibit employees from wearing BLM masks and other apparel. For example, last week, several Whole Foods employees initiated a class action lawsuit claiming they have been subjected to racial discrimination and retaliation for wearing BLM masks and other clothing, even after Whole Foods reversed its initial prohibition on BLM masks.
Some employees assert that their right to free speech should allow them to wear whatever they please to work, not realizing that the First Amendment only protects them from unreasonable restrictions on speech by the government. Legally, private employers may restrict speech as long as it does not violate other laws.
For example, if employees are engaged in concerted activity regarding the terms and conditions of their employment, the National Labor Relations Act (“NLRA”) may protect their conduct and speech. Wearing a BLM mask could be permissible under the NLRA if employees were protesting workplace discrimination, but that’s not generally what we’ve been seeing. Rather, employees want to express their support for the social movement that is embodied by the Black Lives Matter slogan. Therefore, when considering restrictions on employee dress code, as with many other issues, employers must evaluate potential legal, social and business concerns all at once.
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This sentiment is perfect for a Kenny Chesney summer concert. Now it looks like the NLRB and the EEOC can “get along”, and at the same time make it easier for employers to appropriately discipline employees who engage in unacceptable behavior, even if that behavior occurs during otherwise “protected” activity.
The EEOC’s position uniformly has been that employers are required to discipline or terminate employees who use racial or sexual epithets at work. Employers who do not take immediate corrective action can be held liable for discrimination and costly damage awards. On the other hand, until this week, the NLRB took the position that taking adverse action against employees who made such comments while protesting working conditions violates the National Labor Relations Act (NLRA). Thus, employers were often left between the proverbial rock and hard place.
