A New Year’s Workplace Resolution: Check Out OSHA’s 2015 Recordkeeping /Reporting Changes

By Stearns Weaver Miller on January 7, 2015 Posted in Employment Contracts & Corporate Issues, Legislation & Regulations

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I wanted to post about something exciting and attention-grabbing to start 2015. What better way than an update on the Occupational Safety and Health Administration (OSHA) recordkeeping requirements, right? Okay, I realize that OSHA and recordkeeping will not generate quite the level of excitement and fascination that I had hoped for (at least for most people), but the updates that took effect January 1, 2015 are important. So here goes:

1. Expansion of verbal reporting: OSHA has expanded the list of workplace incidents that must be reported by all employers (even those otherwise exempt from recordkeeping requirements, as discussed in #2 below):

A workplace fatality must be verbally reported to OSHA within 8 hours,
A work-related in-patient hospitalization of one or more employees must be verbally reported to OSHA within 24 hours, and
An amputation or a loss of an eye by an employee must be verbally reported to OSHA within 24 hours.

Psst… the 2015 Employment Issues are Just Around the Corner.

By Eric Gabrielle on December 23, 2014 Posted in Hiring/Termination, Labor Law, Legislation & Regulations

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Lots of people make New Year’s resolutions: to lose weight, quit smoking, stop procrastinating, and so on. With a week left in this very eventful year for employers, now is a great time to look back at the year we’ve had with an eye toward the challenges and concerns employers will face in 2015.

More family time:

Sometime before Independence Day, the Supreme Court of the United States will decide whether and to what extent a 36-year old federal statute – the Pregnancy Discrimination Act – requires an employer that provides various work accommodations to non-pregnant employees with work limitations must do so to the same degree for pregnant employees. Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued detailed guidance on these issues, and employees should evaluate their existing policies in light of what many expect to be an expansion by the Court of employer obligations toward pregnant employees.

Wait for It!…Wait for It! (But Don’t Expect to Get Paid for It.)

By Ingrid Ponce on December 10, 2014 Posted in Employment Contracts & Corporate Issues, Employment Litigation

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Yesterday, employers gained an important victory in the ongoing wave of litigation over what time is or is not considered compensable work time under the Fair Labor Standards Act (FLSA). The U.S. Supreme Court ruled that employers are not required to pay employees for the time spent waiting to clear anti-theft security screenings at the end of their shift.

This particular case involved warehouse workers whose primary job was to retrieve and package products for delivery to Amazon customers. These employees were required to pass through security screenings and metal detectors at the conclusion of their shift to prevent employee theft of merchandise. The employees claimed that these post-shift screenings could take as long as 25 minutes primarily due to long lines caused by a large number of employees clocking out at roughly the same time. These screenings were mandatory for all warehouse employees.

Florida’s Minimum Wage Set to Increase to $8.05 per Hour on January 1, 2015

By Glenn Rissman on December 4, 2014 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

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Effective January 1, 2015, Florida’s minimum wage will increase from the current rate of $7.93 to $8.05 per hour. Each year, the Florida Department of Economic Opportunity must recalculate Florida’s minimum wage based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. Based upon the calculation, the minimum wage will increase to $8.05 an hour.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the federal Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage law. However, the employer must pay tipped employees a direct wage. The direct wage is calculated as equal to the minimum wage ($8.05) minus the 2003 tip credit ($3.02), or a direct hourly wage of $5.03, effective January 1, 2015.

Let My People Go (to the Marketplace)

By Sharon Quinn Dixon on November 26, 2014 Posted in Employee Benefits & Compensation

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Earlier this year, the IRS announced that employers are permitted to allow employees to drop coverage under the employer’s fiscal year group health plan and sign up for marketplace coverage. The employer may do this based on the employee’s “reasonable representation” that he or she (and family members) have enrolled or intend to enroll in marketplace coverage effective immediately after the employer coverage ends. An employer is not required to permit this change – it’s optional. But employees need to know now if the employer will permit the change in order to consider whether marketplace coverage will better suit the family’s needs and the federal law’s “individual mandate” – the requirement to have health plan coverage or face a penalty.

Fiscal year health plans (i.e., those whose plan year is other than the calendar year) generally may wait until the first day of the 2015 Plan Year to worry about compliance with the “pay or play” rules of the Affordable Care Act. But the IRS announcement allowing employees to drop their coverage to go to the marketplace gives rise to a decision now by employers with fiscal year group health plans – do I let my people go to the marketplace?

Executive Action: HR Headache on the Horizon?

By Glenn Rissman on November 25, 2014 Posted in Hiring/Termination, Immigration

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Employee: “Hi, Ms. HR Manager, here’s my new Social Security Number. And I also have a new work authorization document.”

Ms. HR Manager: “Huh, you’ve worked here three years. This Social Security Number is different from the one on your Form I-9. Is it Friday yet?”

You may have encountered this situation in the workplace already. A long-time employee comes to you to report a new Social Security Number or maybe a new name. The new SSN does not match the Social Security Card the employee presented as his or her proof of work authorization at the time of hire. Now what?

Pro Rata, Quid Pro Quo, Severance Agreement, Lawsuit – Uh-Oh!

By Robert Turk on November 19, 2014 Posted in Employment Litigation, Wage & Hour/Employee Classification

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“Writing is thinking. To write well is to think clearly. That’s why it’s so hard.” -David McCullough

Hickory Foods, Inc. out of Jacksonville, Florida provided a departing employee, Jonathan Thomas, with a written severance package. The company wanted to pay Thomas an additional eight weeks of his annual salary as severance. The company did not want to pay the amount as a lump sum payment but wanted to pay it in four semi-monthly payments.

The agreement specifically said that the Company would pay Thomas “an annual salary in the amount of $56,398.68 pro rata from the Termination Date of April 1, 2013 through May 24, 2013.” [emphasis added]

Thomas agreed to the package. Hickory Foods then paid Thomas his four semi-monthly checks. Thomas received a total of $8,676.72. The payments then stopped. Thomas believed that he was owed more money. In fact, he believed that he had been promised his entire year’s salary and that the year’s salary would be paid in four semi-monthly payments of $14,099.67 each. The severance agreement language, according to Thomas, required the company to pay his annual salary “pro rata” over the eight weeks. Hickory Foods disagreed. Thomas sued Hickory Foods in Florida state court (Jacksonville) for the “promised” additional $47,721.96 of pay.

Gender Identity/Transgender Discrimination: A New Federal Enforcement Priority

By Susan Toepfer on November 12, 2014 Posted in Discrimination & Harassment, Employment Litigation

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Title VII does not protect against sexual orientation discrimination (though many state and local laws do). The battle to amend this most prominent of employment laws to protect sexual orientation has been waged for years, unsuccessfully. Yet, seemingly overnight, issues of gender identity or transgender discrimination have leapfrogged to the forefront of the federal enforcement agenda and the media. Employers need to pay heed to how these developments impact their actions and policies.

The application of Title VII to protect individuals who do not conform to gender stereotypes is not new. This was first recognized by the U.S. Supreme Court 1989 Price Waterhouse v. Hopkins decision. But taking it a step further, in April 2012, the EEOC issued a decision (Macy v. Holder) clarifying that discrimination on the basis of gender identity or transgender status (including having transitioned or intending to do so) constitutes a form of sex discrimination under Title VII.

Wrestling with Independent Contractors

By Rene Ruiz on November 6, 2014 Posted in Employee Benefits & Compensation, Labor Law

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As I sit here watching professional wrestling with my son, it hits me. Vincent Kennedy McMahon, the Chairman of World Wrestling Entertainment, is a genius. First, Mr. McMahon has kept me interested in staged fights (with predetermined outcomes) for the majority of my life. Second, I marvel at how he has successfully monetized this phenomenon through ample merchandizing (I write this as my son’s many wrestling figures stare back at me). Finally, and most amazingly, he has built a billion-dollar industry using independent contractors (wrestlers).

Unlike other professional athletes, wrestlers, as non-employees cannot unionize. As independent contractors, wrestlers are also left without traditional employment benefits such as health insurance. While Vince McMahon is in many ways a modern-day P.T. Barnum, his enterprise remains a cautionary tale for most private sector employers today.