Quick Hits - October 3, 2018 - American Society of Employers - ASE Staff

Quick Hits - October 3, 2018

Are you a good employer for working mothers? Working Mother revealed its annual list of the 2018 “100 Best Companies,” celebrating companies that lead in the areas of female career advancement, paid parental leave, childcare assistance, benefits, and flextime. For the first time ever, Working Mother is revealing the No. 1 company: Unilever has earned the top spot on this year’s list.  The top 10 Best Companies for 2018 include: AbbVie, Deloitte, Ernst & Young LLP, IBM, Johnson & Johnson, McKinsey & Company, Moody’s, Procter & Gamble, Unilever, and WellStar Health System.  Those who made the list had the following: the Top 10 companies offer an average of 15 weeks paid maternity leave compared to the full list’s average of 11 weeks; 18% of Working Mother 100 Best Companies offer the same number of weeks for maternity and paternity leave (up from 10 percent in 2015); all of the Top 10 companies offer phase-back programs for new mothers returning to work; and all of the 100 Best Companies offer telecommuting; at the Top 10 companies, an average of 94% of men and women telecommute.  Source:  Workingmother.com, CCH 9/26/18

Have you taken a week off for vacation? More than half of Americans have not checked out of the workplace for a week-long vacation in more than a year, according to the 10th annual Allianz Global Assistance Vacation Confidence Index. Allianz, a travel insurance and assistance company, defined a vacation as a leisure trip lasting at least a week in a location that's 100 miles or more away from home.  The survey showed that 38% of Americans haven't taken a full week's vacation in more than two years. Nearly a third; however, took a vacation in the last four to 12 months, and 18% vacationed in the past three months.  Allianz also measured the confidence with which Americans approach vacation time. The survey showed that 44% said they do not feel confident, while 32% said they feel very confident. By contrast, 26% said they were not at all confident about taking time off for leisureSource: Allianz 9/26/18, HR Dive 9/27/18

DOL opinion letter considers no-fault attendance policies and FMLA:  On August 28, 2018, the Department of Labor's Wage and Hour Division issued an opinion letter clarifying the permissibility of no-fault attendance policies under the Family and Medical Leave Act (FMLA). Under the employer's attendance policy at issue, employees accrued points for both tardiness and absences; however, points were not accrued for protected FMLA absences. After 18 points, an employee was automatically discharged. After accrual, points remained on an employee's record for 12 months of "active service." As a result, employees who had been on FMLA leave may have had points lingering on their record for longer than 12 months. However, employees using FMLA leave are not entitled to greater benefits than they would otherwise be entitled to receive had they not taken leave. Accordingly, the Department of Labor concluded that the removal of attendance points was a reward for working. It constitutes an employment benefit; therefore, employees taking FMLA leave did not lose any benefit that accrued prior to taking leave, nor did they accrue any benefit to which they would not otherwise be entitled. The DOL concluded that such practices do not violate the FMLA if employees on equivalent types of leave receive the same treatment. Source: Burr & Forman LLP 9/25/18

Diversity initiatives considered trade secrets: In IBM v. McIntyre, IBM alleged that its former chief diversity officer, Lindsay-Rae McIntyre, misappropriated IBM's trade secrets by accepting an offer to hold the same title at Microsoft.  IBM's chief concern with McIntyre's new employment concerned her "first-hand knowledge of IBM's confidential strategies, secret diversity representation data, proprietary technologies, and recruitment, retention, and promotions plans for diverse talent." According to IBM, such information would inevitably help Microsoft to compete against IBM for the "same diverse talent" that McIntyre was responsible for recruiting, retaining, and developing at IBM. IBM sought injunctive relief against McIntyre to prevent her from working for Microsoft until the expiration of the 12-month non-competition period in her agreement with IBM.  In response to IBM's application for injunctive relief, McIntyre dismissed IBM's concerns on the grounds that diversity work must be "specific and customized" to be effective at any company. According to McIntyre, her work at IBM was not "practically useful" to her at Microsoft, where her work would be focused on Microsoft's corporate culture and internal goals, which are "entirely distinct."  Source: Venable LLP 9/21/18

Does the De Minimis FLSA rule apply in California?  Maybe.  In Troester v. Starbucks Corp.,_P.3d _(2018), the issue was whether the federal Fair Labor Standards Act's (FLSA) de minimis doctrine applies to claims for unpaid wages under certain provisions of the California Labor Code. For the better half of the past century, the de minimis doctrine has been applied in the federal wage and hour context to excuse payment of wages under the FLSA for insubstantial or insignificant periods of time.  In Troester, a shift supervisor filed a class action complaint against Starbucks, claiming that he and other employees were not compensated for post-shift store closing procedures. The evidence showed that these post-shift activities required him to work between four and 10 minutes "off-the-clock" each day, and had he been compensated for this time, he would have earned an additional $102.67 over the 17-month period of his employment. The Court very carefully limited its holding to these facts, ultimately concluding that the de minimis doctrine does not apply under California law to insulate Starbucks from responsibility for paying its employees for small amounts of work regularly performed off-the-clock, i.e., work that is predictable and otherwise easy to account for. Note that it did not rule on time spent on activities that are fleeting or irregular.  Source: Blank Rome LLP 9/20/18

IRS issues information on the paid family and medical leave business credit: The IRS announced that eligible employers who provide paid family and medical leave to their employees may qualify for a new business credit for tax years 2018 and 2019.  In addition, eligible employers who set up qualifying paid family leave programs or amend existing programs by December 31, 2018, will be eligible to claim the employer credit for paid family and medical leave, retroactive to the beginning of the employer’s 2018 tax year, for qualifying leave already provided.  In Notice 2018-71, posted on IRS.gov, the IRS provided detailed guidance on the new credit in a question and answer format. The credit was enacted by the 2017 Tax Cuts and Jobs Act (TCJA).  The notice clarifies how to calculate the credit including the application of special rules and limitations. Only paid family and medical leave provided to employees whose prior-year compensation was at or below a certain amount qualify for the credit. Generally, for tax year 2018, the employee’s 2017 compensation from the employer must have been $72,000 or less.  Source:  IRS 9/25/18

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