Tuesday, June 27, 2017

Employers Welcome the Return of DOL Wage and Hour Opinion Letters



The U.S. Department of Labor has announced it will reinstate the issuance of opinion letters by its Wage and Hour Division. The announcement by U.S. Secretary of Labor Alexander Acosta is a welcome development for employers, who had previously relied on these interpretive opinions in deciphering and complying with the oftentimes confusing requirements of the Fair Labor Standards Act (“FLSA”).
An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion. The letters were a Division practice for more than 70 years until being discontinued in 2009 by the Obama administration, and replaced in 2010 by more generalized interpretations, as opposed to the highly fact specific opinion letters. 
“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

The Wage and Hours Division has established a webpage where employers can request an opinion letter or review other agency guidance regarding FLSA compliance.

Friday, February 17, 2017

Smells like a Lawsuit . . . Odor Sensitivity under the ADA


An Illinois federal judge has rejected an employee’s disability discrimination lawsuit, in which the employee claimed her employer failed to reasonably accommodate her odor sensitivity as required under the Americans with Disabilities Act (“ADA”).  While employers have a legal duty to reasonably accommodate such a disability, this case highlights that there is a limit.
As noted in the U.S. District Court’s opinion in Alanis v. Metra, Plaintiff Elda Alanis had worked for the company for approximately ten years, when she experienced difficulty breathing in the workplace, and claimed not to be able to speak, and would only communicate via text message or on handwritten notes. 
Alanis took FMLA leave and following a psychological evaluation, ultimately returned to the workplace with a diagnosis of fragrance sensitivity.  Among Alanis’s multiple accommodation requests was for “a fragrance-free workplace.” 
 In response, the company agreed to take actions to reduce workplace odors, which included changing the cleaning solutions in the restrooms, instructing staff to use only the approved cleaning solutions, instructing staff to refrain from wearing strong fragrances, and moving Alanis’s workspace to a cubicle farther away from the refrigerator and microwave (one source of the odors she was complaining about). Alanis also was instructed to promptly notify the company if any other fragrance issues arose.  The company also granted Alanis’s requests for a relaxed dress code, not having to talk while symptomatic, and rest breaks away from her work station, but did not agree to all the accommodations sought by Alanis. 
 In dismissing Alanis’s ADA failure to accommodate claim, the District Court noted that the ADA only requires an employer to make reasonable accommodations to a disabled employee’s limitations, and employer are not required to provide the particular accommodation that an employee requests. Instead, the employer may choose what accommodation to provide, so long as it effectively accommodates the employee’s limitations.  The District Court held the company’s accommodations in regard to Alanis were reasonable:
 
Once Metra learned that the changes it made to accommodate Alanis did not eliminate her symptoms, Metra invited Alanis to notify it of any odor issues contemporaneously so that the source could be investigated. When Alanis did report an issue, Thomas intervened on Alanis’s behalf and reminded the relevant staff member of the fragrance-free workplace requirement. The record shows that Metra made reasonable efforts to provide (and police where necessary) the accommodations it agreed to provide Alanis. That Metra could not guarantee a fragrance-free environment for Alanis does not constitute an adverse action

The District Court’s ruling is line with similar cases around the county in which ADA claims were dismissed because a an employee’s request for a fragrance-free or odorless workplace was held to be unreasonable and not feasible.
Fragrance or odor sensitivity clearly qualifies as disability.  The Equal Employment Opportunity Commission takes the position that under the ADA, an employee may be disabled if a workplace odor causes asthma or causes an otherwise normal reaction or allergy to become severe.  Finding a reasonable and realistic accommodation is best accomplished through engaging in an interactive discussion with the employee. 
·         Depending on the position and job responsibilities, allowing the employee to telecommute or work from home might be a reasonable accommodation.
·         For employees who are sensitive to certain workplace odors, changing their workplace/office locations to an area of less exposure could be a reasonable accommodation. Workplace odors triggering a medical condition also may be more generalized, such as the odors from copy machines or printers or from cleaning products.
·         A perfume/cologne free policy can be a reasonable accommodation. While other employees may find it unreasonable, wearing perfume or cologne in the workplace is not a protected right.






Wednesday, January 4, 2017

THE $300,000 FLU SHOT


While getting a flu shot may result in a temporarily sore arm, a Pennsylvania hospital is feeling some significant financial pain in its bank account after settling a lawsuit over its mandatory flu shot policy. 
As first reported here back in October 2016, the Equal Employment Opportunity Commission (“EEOC”) has filed lawsuits nationwide against healthcare facilities which require that their employees receive seasonal flu vaccines.  The EEOC’s position is that such policies violate Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of healthcare employees.
 
As previously reported, one of the hospitals being sued by the EEOC was Pennsylvania-based Saint Vincent Health Center.  On December 23, 2016, Saint Vincent agreed to settle the EEOC lawsuit for $300,000, which includes back pay and compensatory damages to six former employees who were fired for failing to comply with the hospital’s policy.  The settlement also requires offers of reinstatement to the six employees, and includes a consent decree requiring injunctive relief.
To recap the facts of the lawsuit, the EEOC alleged that in October 2013, Saint Vincent implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired. 

From October 2013 to January 2014, the six employees identified in the EEOC’s lawsuit t requested religious exemptions from the flu vaccination requirement based on sincerely held religious beliefs, and the Health Center denied their requests. When the employees continued to refuse the vaccine based on their religious beliefs, they were terminated. In its lawsuit, the EEOC stressed that during the same period, the hospital granted fourteen (14) vaccination exemption requests based on medical reasons while denying all religion-based exemption requests.

Under the consent decree, if Saint Vincent chooses to require employee influenza vaccination as a condition of employment, it must grant exemptions from that requirement to all employees with sincerely held religious beliefs who request exemption from the vaccination on religious grounds unless such exemption poses an undue hardship on the Health Center's operations, and it must also notify employees of their right to request religious exemption and establish appropriate procedures for considering any such accommodation requests.
The decree also requires that when considering requests for religious accommodation, the Health Center must adhere to the definition of "religion" established by Title VII and controlling federal court decisions, a definition that forbids employers from rejecting accommodation requests based on their disagreement with an employee's belief; their opinion that the belief is unfounded, illogical, or inconsistent in some way; or their conclusion that an employee's belief is not an official tenet or endorsed teaching of any particular religion or denomination. The decree further requires that Saint Vincent provide training regarding Title VII reasonable accommodation to its key personnel and that it maintain reasonable accommodation policies and accommodation request procedures that reflect Title VII requirements.

Does this mean mandatory vaccination policies at healthcare facilities are prohibited?  According to the EEOC’s Philadelphia District regional attorney, Debra M. Lawrence:
While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer's Title VII duty to provide reasonable accommodation for religion.  In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer's operations.

However, reasonably accommodating healthcare employees who have direct contact with patients may be easier said than done.  According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with flu can spread it to others up to about 6 feet away. Most experts think that flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose. 
While the effects of the flu on most people are not life-threatening, the CDCP notes that severe cases of the flu can result in death for some people, such as the elderly, young children, and persons with certain health conditions, including weakened immune systems.  The consent decree does allow Saint Vincent to adopt on-the-job precautions to avoid the transmission of the flu to its patients by employees who have been granted a religious exemption.




Tuesday, December 20, 2016

EMPLOYMENT LAW AND A NEW ADMINISTRATION

 

One of the biggest employment law developments of 2016 will carry over into 2017 and a new administration.  Employers nationwide spent much of the past year preparing for the December 1, 2016 implementation of the Department of Labor’s (“DOL”) Final Rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week).  However, just days before this key initiative of the Obama administration was to go into effect, a federal judge in Texas issued a nationwide preliminary injunction, finding the DOL had likely exceeded its authority under the FLSA. While breathing a sigh of relief, employers were left wondering what would happen next.
Current Labor Secretary Thomas Perez has since appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, seeking expedited review.  However, even under the expedited briefing schedule set by the Fifth Circuit, oral argument would not take place until at least February 2017, which would be after Donald Trump takes office.  This would allow the DOL, under Trump’s expected Labor Secretary Andy Puzder, to abandon the appeal.  Puzder, who is the current CEO of the parent company of Hardee’s and Carl’s Jr., has gone on record as to his strong opposition to the DOL’s overtime rule. 
My first prediction of 2017 is the Final Rule and its increased minimum salary requirement never goes into effect. Not surprisingly, Puzder also opposes efforts to increase the minimum hourly wage to $15, claiming such a significant increase would hasten the move to automation in the fast food industry and cost jobs.
In these waning days of 2016, the Equal Employment Opportunity Commission (“EEOC”) offered guidance to employers as to the rights of employees with mental illnesses under the Americans with Disabilities Act, and issued updated enforcement guidelines on national origin discrimination, including question and answer guidance and advice for small businesses.  Generally, national origin discrimination refers to: (a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity. 
President Trump also will be putting his stamp on the EEOC.  As previously reported,  over the last eight years, the EEOC has taken a very aggressive posture toward employers, including lawsuits against companies over criminal background checks and separation agreements.  The EEOC’s actions and litigation conduct earned it some harsh words and harsh rulings from a number of federal courts. 
President Trump will select a new EEOC Chairman and a new EEOC General Counsel in 2017, both of whom will set the tone and agenda of the agency going forward.  With the Trump administration’s focus on reducing regulations faced by businesses, one target could be recent major revisions to the Employer Information Report (EEO-1).  With a focus on equal pay issues, the new form will require employers to list employee pay and hours by categories of sex, race and ethnicity.  The regulations are slated to go into effect in March 2018, but under a new administration, could be revised or even abandoned.


Monday, November 28, 2016

SURPRISE RULING ON FLSA OVERTIME RULE


It continues to be a season of surprises in American politics . . . and in employment law.  Who would ever have thought that a federal judge, appointed by President Obama, would throw a money wrench in a key initiative of the Obama Department of Labor?  Not me.  As I incorrectly predicted in my November 18, 2016 article, I fully expected U.S. District Judge Amos L. Mazzant III to shoot down an injunction aimed at blocking the December 1, 2016 implementation of the DOL’s Final Rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week).

What instead happened was that Judge Mazzant entered a nationwide preliminary injunction on November 22, 2016, blocking for now the U.S. Department of Labor (“DOL”) from implementing significant changes to the overtime rules applicable to white collar employees.  The ruling out of the U.S. District Court for the Eastern District of Texas held that the DOL most likely exceeded its authority by doubling the salary requirement, which would have rendered essentially meaningless the duties test, which is actually written into the FLSA.

The issuance of an injunction means that implementation and enforcement of the Final Rule by the DOL is just on hold until further notice by the Court.  The DOL has not yet announced whether it intends to appeal the ruling, and it remains to be seen if the Trump administration would have any interest in trying to implement a Rule so unpopular within the business community.  Another potential option might be a revised Rule that would include a smaller increase in the minimum salary requirement.

What I think I did get correct was my observation that “[i]f the unlikely actually happens, I expect an enormous sigh of relief from many employers, tinged with annoyance and aggravation over six months spent preparing for a rule that never went into effect.”  Annoyance aside, what should employers do at this point? 

In expectation of the December 1, 2016 deadline, many employers had bumped employee salaries to meet the new requirement, and many more had simply adjusted hour wages and work schedules in an effort to reduce overtime or keep actual wages approximately the same.  As reported in the Wall Street Journal, businesses are now faced with the difficult decision of either walking back pay increases they had already put in place, resulting in angry employees, or eating the expense of changes made in anticipation of a now uncertain requirement.

There is no right or wrong answer, and employers will have to look at a number of factors in making their decision for their particular business.  These factors include, but are not limited to: (1) whether the employer has already begun implementation of salary/exemption changes, (2) whether the employer has already communicated planned salary increases or changes even if it hasn’t actually put them in place, (3) whether the changes impact or potentially impact the company’s benefit plans, (4) the overall economic impact of the change to the client, (5) the workforce morale issues that may be implicated, (6) the temporary nature of the injunction and the fact that it could be appealed and, if so, potentially reversed on appeal.  This is an odd situation where those employers who planned ahead are faced with more issues than those companies that procrastinated and did nothing.


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Friday, November 18, 2016

RULING EXPECTED NEXT WEEK IN LEGAL CHALLENGE TO INCREASED SALARY REQUIREMENT FOR FLSA “WHITE COLLAR” EXEMPTIONS



Back in May 2016, the U.S. Department of Labor ("DOL") issued its final rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week). With the new standard slated to go into effect on December 1, 2016, employers have spent the last six months scrambling on how to comply with the new rule, which makes millions of formerly exempt employees now eligible for overtime under the FLSA.
 

Options available to employers include bumping employee salaries to meet the new minimum (not feasible in many cases), paying employees’ current salaries with overtime after 40 hours (increased expense), reorganizing schedules and workloads to avoid overtime, or adjusting hourly rates of pay to essentially maintain the same pay level by estimating potential overtime hours. For a more detailed explanation of the final rule, click on this link to read an article by my colleague Jessica Coco Huffman in Phelps Dunbar’s Baton Rouge, Louisiana Office. For a discussion and explanation of the FLSA white collar exemptions, click on this link.
 

However, 21 states filed a lawsuit against the DOL, seeking to block the implementation of the new salary requirement prior to it going into effect, because of the heavy burden it would place on state budgets An injunction hearing was held November 16, 2016 in the United States District Court for the Eastern District of Texas. At the hearing, issues addressed included the DOL’s authority to make the change, the appropriateness of a nationwide injunction, and the impact on the incoming Administration. Following the hearing, the federal Judge in the case stated he was taking the matter under advisement, and expects to have a ruling on the requested injunction on Tuesday, November 22, 2016.
 

Reading the tea leaves, I think it is unlikely the Court will issue the injunction this late in the game. The federal Judge hearing the case, Amos L. Mazzant III, is an appointee of President Obama, who initially pushed for the change. However, after our tumultuous roller-coaster ride of a political season, the only sure bet is to see what happens next Tuesday.
 

If the unlikely actually happens, I expect an enormous sigh of relief from many employers, tinged with annoyance and aggravation over six months spent preparing for a rule that never went into effect.
 
 
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Friday, October 28, 2016

E-MAIL SUBSCRIPTION


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