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Published on Tuesday, April 18, 2017

Quick Hits - April 19, 2017

Why joint employment questions matter: Generally, an employee is not entitled to overtime pay unless he works more than 40 hours a week for a single employer. It is not uncommon, however, for a company which has a subsidiary to employ some staff that work for both companies.  In these situations, questions often arise regarding the company's obligation to pay overtime for the hours worked for both.  For example, if an employee works 40 hours one week for the main company, and during that same week, also works an 8-hour shift for the subsidiary, is that employee entitled to overtime pay or simply an additional eight hours of straight time?  The arrangement for control of the employee needs not be formal to be considered "joint employment." Other factors that are relevant include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems.   If the relationship between the two companies is merely a payroll function, then joint employment likely won’t be found.  Check with legal counsel.  Source: Modrall Sperling 3/27/17

Although FMLA is available, many don’t take it: According to the Pew Research Center, about one-in-six adults (16%) who have been employed in the past two years say there was a time during this period when they needed or wanted to take time off from work following the birth or adoption of their child, to care for a family member with a serious health condition, or to deal with their own serious health condition, but were unable to do so. This figure rises to 30% among those with household incomes under $30,000. Among workers who have faced this situation in the past two years, the most frequent reason (cited by 72%) for not taking family or medical leave when one needs or wants to is concern over loss of wages or salary. Just over half of workers (54%) say they feared losing their job, while about 42% say they felt badly about their co-workers taking on additional work or worried that taking time off might hurt their chances for job advancement (40%). Other reasons cited include believing that no one else was capable of doing their job (36%) or their employer denying their request for time off (32%). Source: Pew Research Center 4/4/17

Millennials expect government to provide for healthcare but not single payer system: A GenForward poll of 1,833 adults age 18-30 says a majority of people ages 18 to 30 think the federal government should be responsible for making sure Americans have health insurance. It suggests most young Americans won't be content with a law offering "access" to coverage, as Trump and Republicans in Congress proposed. "I do believe the government should offer it because we pay taxes," said Rachel Haney, 27, of Tempe, Arizona. "I do feel like it's a right." A recent AP-NORC poll of U.S. adults found 52% called it a federal government responsibility to make sure all Americans have coverage.  However, there is little support for a single payer health care system among Millennials. Only 39% of Millennials support single payer health care, which is similar to the level of support for this policy among the general population (38%), according to a recent AP-NORC survey.  Source: GenForward

Help the government reorganize itself - even the White House is on the list:  On March 13th, President Trump signed an Executive Order to make the Federal government more efficient, effective, and accountable. This Executive Order directs the Director of the Office of Management and Budget (OMB) to present the President with a plan that recommends ways to reorganize the executive branch and eliminate unnecessary agencies. OMB in turn established a survey for anyone to complete.  All ideas will be reviewed.  To take the survey, click here.  

In the meantime, manufacturers have spoken: President Trump invited American manufacturers to recommend ways the government could cut regulations and make it easier for companies to get their projects approved.  Industry leaders responded with scores of suggestions that paint the clearest picture yet of the dramatic steps that Trump officials are likely to take in overhauling federal policies, especially those designed to advance environmental protection and safeguard worker rights. For example, the U.S. Chamber wants to jettison a requirement that employers report their injury and illness records electronically to the Labor Department so they can be posted “on the internet for anyone to see.”  And in its 51-page comment, “Make Federal Agencies Responsible Again,” the Associated General Contractors of America recommended repealing 11 of President Barack Obama’s executive orders and memorandums, including one establishing paid sick leave for government contractors.  The Trump Administration has indicated support for many of the recommended changes.  Source:  Washington Post 4/17/17

Stealing drugs for own use ADA eligible?  A nurse employed by a major medical center was suspected of illegally diverting medications. When confronted by her employer with evidence of suspicious transactions recorded by the provider's medication monitoring systems, the nurse denied diverting medications but could not explain the suspicious transactions. "I'm not an IT person. I'm a nurse." Following termination of her employment, the nurse filed suit against her former employer under the Tennessee Disabilities Act (TDA), claiming she had lost her job solely because the employer "perceived her to have the disability of drug addiction."  The employer argued that "it did not fire her because she was considered a drug addict, but because it thought she was stealing medications."  Interestingly enough, the court went through an ADA analysis instead of upholding the firing for drug theft.  First, the court held that the current illegal use of or addiction to a controlled substance is not a disability under the ADA. Second, the court found that the nurse had failed to show that her termination for diversion was a pretext for illegal discrimination.  She was fired for theft, even though she was taking the medicine for her own use. Nice try though.  Source:  BakerHostetler 4/6/17

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