People Processes

Referring to a case involving Cal/OSHA and frozen foods manufacturer Overhill Farms Inc. and its temporary employment agency Jobsource North America Inc., employers failed to protect hundreds of employees from COVID-19 at two plants in Vernon. This was due to the lack of physical distancing procedures among workers including where they clock in and out of their shift, at the cart where they put on gloves and coats, in the break room, on the conveyor line, and during packing operations. Each employer accrued over $200,000 in proposed penalties. The employers did not take any steps to install barriers or implement procedures to have employees work at least six feet away from each other and they did not investigate any of their employees’ COVID-19 infections, including more than 20 illnesses and, in the case of Overhill Farms, one death. Other violations that put workers at risk of exposure to COVID-19 include the failure by both employers to train employees on the hazards presented by the virus and failure to i

https://youtu.be/EFcPkW82VCc Under the FLSA, employees are entitled to be paid a minimum wage for each hour worked and to be paid one-and-a-half times their regular rate of pay for each hour in excess of 40 hours worked in a workweek (some states have slightly different regulations). Certain employees are exempt from these requirements, including employees who are employed in a bona fide executive, administrative, or professional capacity, as well as outside salespeople. A three-part test was created in order to define who are exempt professionals: The salary basis test determines that the employee must be compensated on a salary or fee basis. The salary level test determines that the salary paid must meet a specific minimum amount. The duties test determines that the employee’s primary duty must be to perform work that requires either knowledge of an advanced type in a field of science of learning, customarily acquired by a prolonged course of specialized intellectual instruction; or invention, imagination,

[youtube https://www.youtube.com/watch?v=KmjNGQGvsKg] A group of mechanics employed at a South Carolina chain of tire and automobile repair stores was paid under a compensation plan that contained two components. They received an amount determined by multiplying the particular mechanic’s “flat rate”;—an hourly pay rate assigned to each mechanic based on that mechanic’s particular skill, experience, and certifications—by the mechanic’s " turned hours," a pre-established amount of time designated by the employer for each mechanical task, for all tasks completed by the mechanic during the relevant pay period. The compensation for turned hours did not account for the actual time spent working on a particular task or during the pay period overall, however. Instead, it was based exclusively on the number of tasks completed and the pre-assigned turned hours for such tasks (the same measure of turned hours used to form a mechanic’s pay for a particular task also was used as the basis for the labor c

The Centers for Disease Control and Prevention has laid out new workplace strategies for COVID-19-related violence prevention in order to avoid conflict if customers refuse to adhere to safety protocols being enforced by employees. The CDC has posted information on limiting workplace violence related to retail and service businesses’ COVID-19 prevention policies. This information is also intended for other customer-based businesses, including department stores, grocery stores, gas stations, and restaurants that are opened and have implemented state, municipality, and company-directed Coronavirus prevention policies. The policies that may prompt violence toward workers include requiring masks to be worn by employees and customers, asking customers to follow social distancing rules, and setting limits to the number of customers allowed in a business at any given time. The CDC defines workplace violence as “violent acts, including physical assaults and threats of assault, directed toward persons at work or on du

We will be looking at an explanation from the Wage and Hour Division of the Department of Labor about the Fair Labor Standards Act, specifically about employee reimbursements. Generally, the FLSA requires covered employers to pay non-exempt employees no less than the federal minimum hourly wage for all non-overtime hours worked in a given workweek. 29 U.S.C. § 206. Employees must receive these wages “free and clear.” 29 C.F.R. § 531.35. An employee’s wages include the “reasonable cost” of “board, lodging, or other facilities” that primarily benefit the employee, and therefore the reasonable cost of such items count towards satisfying an employer’s obligation to pay the minimum wage. 29 U.S.C. § 203(m). But the cost of “other facilities” that are primarily for the benefit or convenience of the employer cannot be counted as wages. 29 C.F.R. § 531.3(d). Those costs include tools of the trade, required uniforms—or required use of a personal vehicle. An employer violates the FLSA “in any workweek when the cost of

[youtube https://www.youtube.com/watch?v=t2Q8P2LF124] The Department of Labor has posted a clarification letter about the FLSA and addresses the question of whether commercial drivers can be paid solely on a commission basis. The FLSA exempts from its overtime pay requirements certain employees of “retail or service establishment[s]. The exemption applies to any employee: who works at a retail or service establishment, whose employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage in the workweek in which he or she works overtime, and whose earnings in a representative period consist of more than 50% commissions The United States Supreme Court recently held that exemptions under the FLSA deserve a “fair (rather than narrow) interpretation” because the exemptions are “as much a part of the FLSA’s purpose as the overtime-pay requirement.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018) (internal quotation marks and citation omitted). Accordingly, WHD must apply a

The Equal Employment Opportunity Council released guidance early in August 2020 that addressed employees who may be suffering from opioid addiction, referring to it as an opioid disability protected under the Americans with Disabilities Act. While this guidance is directed specifically towards employees, employers can read through the document to help them think about how to deal with the issues addressed. When an employee comes to an employer with an addiction, especially opioid addiction, understand that it is classified as a disability under the ADA, meaning the employer is required to provide reasonable accommodation. If the company has a drug testing policy and an employee tests positive for a particular drug, if they have a prescription for it—in order to treat something that is a legitimate medical concern—know that this is a disability and not a reason to fire them. If the employee is unable to safely operate heavy machinery under the particular drug, reasonable accommodation may be needed if the empl

Employees that work from home on an hourly basis need an ability to clock in and out for their scheduled hours and an ability to report the time that they worked in an unscheduled time. For example, if the employer was not expecting the employee to work at 10 pm, and yet they did, the employer has to put together a reasonable process for reporting the unscheduled work time so that the employee can be paid accordingly. It can be a discipline issue if they work unscheduled hours, and the employer may have to bar access to their clocking in if need be. No matter the circumstances, however, the employee must always be compensated for the extra hours. This Field Assistance Bulletin (FAB) provides guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers. In a telework or remote work arrangement, the

[youtube https://www.youtube.com/watch?v=AUn4WQ017ds] It can be difficult for management to understand why an employee may be excelling in one area of a job while underperforming in another. Performance is evaluated on an ongoing basis but, often, it is an annual review. A Performance Improvement Program (PIP) basically shortens the length of performance reviews. It provides more feedback more often to an employee, normally around a specific issue.   A PIP should be implemented when an employee consistently performs poorly or behaves inappropriately. For example, if an employee is consistently late for work, missing due dates, or conducts themselves in an improper manner, a PIP may be a necessary initiative. Although it may be easy to identify where an employee falls short of expectations, it can be difficult to identify the root cause of the problem. For instance, issues in an individual’s personal life, conflicts at work, or even management style may all be the reasons for performance issues.   PI

[youtube https://www.youtube.com/watch?v=0_35zj3H11g] The short answer to this question is “yes”. Of course, telecommuting is preferable. If the work can be done from home, the employer and employee should discuss options to prevent complications that arise due to situations such as the current lockdowns or city-wide protests. Do keep in mind that factors such as business expenses vary by state whether they are reimbursable by the employer. The processes for tracking attendance and upholding performance standards for exempt employees should be planned out. If it is necessary to come in for work, note that, so far, in each state that has instituted a curfew due to “social unrest”, commuting to or from work is still allowed. To avoid confusion, and keep your employees safe, create a letter for each employee on the company letterhead to keep in their car when traveling to and from work. It is as simple as modifying the standard letter used for essential businesses during the COVID-19 pandemic, which you may refe

https://youtu.be/RfwwapAGcco In answering this question, it is important to note the differences between “noncompete”, “non-solicitation”, and “company” or “trade secrets” when navigating future opportunities. “Noncompete” simply means that the employee cannot seek work in the same industry by becoming an employee or partner of a competitor. Note that the “duty of loyalty” exists without any sort of agreement— although it is always better to spell things out to all your workers via your non-disclosures. An organization’s current employees are under a “duty of loyalty” to the organization. Each state defines that duty a bit differently. In general, employees are not permitted to induce current customers, suppliers, or other employees to leave the organization, nor are they allowed to operate a competing business while still employed by the organization. When that duty is breached, the employer may be entitled to collect lost profits, punitive damages, and out-of-pocket costs incurred to train replacements. Off

[youtube https://www.youtube.com/watch?v=dHr2N0tkHcc] In this episode, we dive into Post Accident Drug Testing. After Oct 2018, OSHA has stated that most instances of workplace drug testing are permissible, including: Random drug testing; Drug testing unrelated to the reporting of a work-related injury or illness; Drug testing under a state’s workers’ compensation law; Drug testing under another federal law, such as a U.S. Department of Transportation rule; and Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed an employee. However, the Department warned that, if the employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee who reported an injury.   And in TENNESSEE, we dove a little deeper into the minimum property damage levels stated in TN Laws.   Reasonable suspicion testing Reasonable suspicion” is based on a belief that an empl

[youtube https://www.youtube.com/watch?v=opgvh1N2grU] This episode goes through law updates in August 2020: Nebraska Employee Misclassification: The Employee Classification Act is amended to change enforcement provisions. The change provides that the commissioner may issue a citation to a contractor when an investigation reveals that a contractor has violated the act. Nebraska Smoking in the Workplace: The Nebraska Clean Indoor Air Act is amended to exempt electronic smoking device retail outlets from smoking prohibitions under the law. The limited exemptions under the law permit smoking in public places where the public would reasonably expect to find persons smoking, including guest room suites designated as smoking rooms, institutions engaged in research related to smoking, and tobacco retail outlets, electronic smoking device retail outlets, and cigar shops, with narrow application and restrictions under the law. Nebraska Wage Payment: The Nebraska Wage Payment and Collection Act is amended to provide and

This episode goes through law updates in August 2020: Georgia Disaster and Emergency Services Volunteer Leaves: Under the Disaster Volunteer Leave Act, employees of state agencies who are certified disaster service volunteers may be granted paid leaves of absence for no more than 15 workdays in a 12-month period to participate in specialized disaster relief services for the American Red Cross. Georgia Meal and Rest Periods: A new law requires employers to provide a paid break time of reasonable duration to an employee who desires to express breast milk at the worksite during working hours. Georgia Paid Sick Leave: Without action by the Georgia General Assembly, the state’s sick leave laws were set for automatic repeal effective July 1, 2020. However, the Assembly did act to extend the state’s sick leave laws, until July 1, 2023. Georgia Unemployment Insurance Law: The method for determining maximum weekly benefit amounts is amended with regard to high average unemployment rates. For claims filed on or after J

This episode goes through law updates in August 2020: California Unemployment Insurance: Tax-rated employers will receive relief from unemployment insurance benefit charges related to COVID-19. Alongside other states, California will not count COVID-19-related claims against employers. Colorado Labor Relations: The Colorado Partnership for Quality Jobs and Services Act was enacted to provide state employees with the right to self-organization. This law gives more freedom to employees to not participate in unions. Colorado Paid Sick Leave: The Healthy Families and Workplaces Act creates paid sick leave in Colorado. Under the new law, upon hire, employers begin accruing paid sick leave at the rate of one hour for every 30 hours worked, up to 48 hours. Colorado Unemployment Insurance: The maximum weekly benefit amount in Colorado effective July 1, 2020, is $590. The alternative maximum weekly benefit amount is $649. The minimum weekly benefit amount remains $25. Colorado Whistleblower Protections: The Worker Rig

This episode covers COVID-19 liability. As an employer recovering from shutdowns in your area, you may be in danger of getting a consumer or employment complaint from their potentially getting sick in your office or store. The liability shield for these situations is a major part of the discussion for the proposed stimulus bill because there is a major concern that, without it, many businesses will become vulnerable to legal troubles once they reopen. Since the federal government has not yet acted, many states have come in and put their own liability shields in place. Hunton Andrews Kurth's COVID-19 Complaint Tracker tracks by state and type. Of the 4,280 complaints filed as of August 13, most (around 1,000) are related to insurance claims, malpractice suits, civil rights cases, and government taking. The key cases to be covered by the liability shield proposed by Congress are called “consumer cases”. These include personal injury, price gouging, product liability, recurring membership fees charged during a s

[youtube https://www.youtube.com/watch?v=nWS79DfmIZA] Despite the many drastic developments that the U.S. has undergone in 2020, the Department of Labor remains vigilant in prosecuting and charging those convicted of primary violations. This episode covers the five cases filed last month. Three unrelated employers in Florida and Minnesota have paid a combined $6,528 in back wages to three employees for violating the paid sick leave requirements of the newly-enacted Families First Coronavirus Response Act (FFCRA), according to the DOL’s Wage and Hour Division (WHD). The agency also announced collecting $92,290 for 27 employees from an Idaho company that violated the Davis-Bacon Act, and a civil money penalty of $17,586 for a North Carolina McDonald’s franchise for violating the FLSA’s child labor requirements. These are the cases: Medley, Florida-based Martinez Truss Co. has paid an employee $4,352 in back wages for wrongly denying paid sick leave under the FFCRA. The employee had requested time off after thei

On August 3, 2020, a Tennessee Valley Authority action prompted President Trump to issue an Executive Order that cracks down on H-1B visas by requiring federal agencies that use government contractors to scrutinize contracts awarded in fiscal years 2018 and 2019 to determine whether: Contractors and subcontractors used temporary foreign labor for contracts performed in the United States, and, if so, to determine the nature of the work performed by temporary foreign labor on these contracts; whether opportunities for U.S. workers were affected by this hiring; and any potential effects on the national security caused by this hiring. Contractors and subcontractors performed in foreign countries services that were previously performed in the U.S. and, if so, whether opportunities for U.S. workers were affected by such offshoring; whether affected U.S. workers were eligible for assistance under the Trade Adjustment Assistance program authorized by the Trade Act of 1974; and any potential effects on the national se

A recent COVID-19 employer survey conducted by Willis Towers Watson says that a majority of North American employers expect that most of their furloughed workers will return to work by the first quarter of 2021. However, relatively few employers expect this to be the case for laid-off employees. Even though more employees are working remotely than ever before, few companies have policies in place that could encourage this arrangement once the dust settles around the pandemic. According to the survey, 55 percent of respondents expect most (at least three out of four) of their furloughed employees to be back at work by the first quarter of next year; however, just one in six (16 percent) expect to rehire most of their laid-off workers by then. Public health and economic recovery are two of the biggest factors in deciding which employees to bring back to work. However, employers need to adapt to having a larger percentage of remote workers—a new normal which will fundamentally change their culture. Looking ahead

[youtube https://www.youtube.com/watch?v=R4ou875lubg] The California Labor Commissioner’s Office has filed separate lawsuits against transportation companies Uber and Lyft for committing wage theft by misclassifying employees as independent contractors. Uber and Lyft have misclassified their drivers, which has deprived these workers of a host of legal protections in violation of California labor law, the complaints allege. The goal of the lawsuits is to enforce California labor laws and to ensure that drivers are not misclassified as independent contractors, according to an August 5 https://www.dir.ca.gov/DIRNews/2020/2020-65.html (press statement) announcing the lawsuit. In 2018, the California Supreme Court’s https://hr.cch.com/ELD/DynamexSuperior043018.pdf (Dynamex) ruling established the "ABC test" for determining whether a worker is an employee under various California labor laws. https://hr.cch.com/eld/20190AB5-92.pdf (Assembly Bill 5), which went into effect on January 1, 2020