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Published on Tuesday, October 10, 2017

Quick Hits - October 11, 2017

Daylight Savings Time ends November 5: When clocks are turned back an hour in the early morning on November 5th workers on the midnight shift at that time will actually work an extra hour. Assuming that these workers are nonexempt employees, meaning that they are governed by the Fair Labor Standards Act (FLSA) they must be paid for all hours worked. The end of daylight saving time can have overtime pay implications as well. Generally, nonexempt employees are entitled to overtime pay for all hours in excess of 40 worked during the week. Employees who work an extra hour during the conversion to standard time may go over the 40-hour mark for the workweek and are thus entitled to the higher overtime pay rate for that time. For a copy of the end of Daylight Savings Time Poster, click here.

US DOL updates FLSA and EPPA requirements for posters: The United States Department of Labor (DOL) has revised mandatory federal posters on the Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA). By law, employers must display official DOL posters where employees and job applicants can readily see them. The updated FLSA poster has the following changes: The posting requirement is now at the top of the poster, as opposed to within the “Additional Information” section.  The “Child Labor” section removed the specific hours and days in which 14- and 15-year- olds may work, as well as the hours when work must begin and end.  The “Tip Credit” section was also changed.   A “Nursing Mothers” section has been added. It also dropped the maximum amount of civil penalties.   On the updated EPPA poster, the “Enforcement” section no longer includes the maximum amount of civil penalties (up to $10,000) because penalties must be adjusted for inflation each year. If you need new federal posters, go to www.govdocs.com and enter the code gn-ase to get 15% off the list price.  Source:  Bradley Arant Boult Cummings LLP 10/3/17

Federal Ban the Box bill advances:  On September 25, the Senate Committee on Homeland Security and Governmental Affairs favorably reported on a federal ban-the-box bill and sent it to the Senate for further consideration.  The Fair Chance to Compete for Jobs Act of 2017, S. 842, would give formerly incarcerated individuals a fair chance to compete for employment in the federal government and on federal contracts by prohibiting federal agencies and prime federal contractors from requesting criminal history information from job applicants prior to a conditional offer of employment.  By giving individuals with a criminal history the chance to compete for federal jobs without first considering their criminal history, the legislation is aimed at improving employment prospects for these individuals and thereby reducing recidivism.  Notably, S. 842 includes exceptions for certain positions for which access to criminal history information is required by law, and for jobs involving law enforcement and national security duties, as well as other commonsense exceptions.  The bill would also mandate that the U.S. Census Bureau and the Bureau of Justice Statistics issue a report on the employment of formerly incarcerated individuals.  Source:  CCH 10/3/17

Vending machines not public accommodations:  The U.S. Supreme Court on October 2 denied review in a disabilities rights case that could have had an impact on whether internet services and companies need to comply with the Americans with Disabilities Act.  The case, titled Magee v. Coca-Cola Refreshments USA, was brought by Emmett Magee, a blind man from Louisiana who invoked the ADA in suing Coca Cola because its glass-front vending machines made it impossible for him to know what product he was choosing and at what price. He was thwarted from buying soda from vending machines at a hospital and a bus station. The U.S. Court of Appeals for the Fifth Circuit turned away his claim, ruling that vending machines are “not a physical place open to public access” and therefore don’t fit the definition of “public accommodations” that are required to abide by the ADA. It also said that the hospital and the bus stations were public accommodations and “may very well” bear some responsibility to make vending machines on their premises accessible to the disabled.   Source: law.com 10/3/17

Don’t fall in love if you are in HR!: An employer did not violate Title VII by firing its HR manager for violating company policy when she helped hire a store manager without disclosing their romantic connection and then refused to answer questions about their relationship once employees complained. After being hired in June, the HR manager was involved in the hiring of a male store supervisor, with whom she was personally involved. However, she never disclosed their romantic relationship, even after she became his direct supervisor. About a month later, three employees complained that they believed the two were romantically linked and that there was a conflict of interest. Meanwhile, in both July and October 2011, the HR manager had informed management that she believed the employer was in violation of the FLSA in failing to properly pay overtime rates to some employees. When the HR manager was questioned in November, she adamantly denied she was in a relationship with the store manager. When asked whether the two had a prior relationship, she stated, "I’m not answering this, this is borderline sexual harassment." About three weeks later, management informed her that several employees had expressed concern about her objectivity in addressing the store manager’s work performance issues, but she again denied knowing him outside work. Meanwhile, when he was questioned about their relationship, he deflected the question. Though the store manager remained employed, the HR manager was terminated and replaced by another woman. After the decision to terminate her, her employer produced a memo that indicated several reasons for firing her, including her violation of policy in failing to disclose her relationship with the subordinate.  She sued and lost.  Source:  Owens v Old Wis Sausage Co Inc, No. 16-387 (7th Circuit Court of Appeals, 8/31/17)

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