California employers hit with wage statement violation:  Mohammed Noori sued his former employer for violation of Cal. Lab. Code § 226(a) (setting forth certain very specific statutory requirements for itemized wage statements) based on the fact that the wage statements identified “CSSG” as the “name of the legal entity that is the employer” even though CSSG is not listed with the California Secretary of State, but is a fictitious business name for Countrywide Payroll & HR Solutions, Inc. Noori also alleged that Countrywide failed to provide payroll records to him that indicated the employer’s name and address. Finally, Noori alleged violations of the Private Attorneys General Act (“PAGA”). The trial court sustained Countrywide’s demurrer to the complaint and dismissed the lawsuit, but the Court of Appeal reversed in part, holding “CSSG is not Countrywide’s registered name, nor is it a minor truncation. CSSG is a construct… which may or may not have meaning to Countrywide employees.” As for the “failure to maintain wage statement records” claim, the Court held the claim failed for lack of any alleged injury to Noori. Finally, the Court held that Noori had provided adequate notice to the employer under PAGA.  California law is its own quagmire.  Please attend our What’s Different in California Webinar on February 12^th.  Click here for more information.  Source:  Proskauer Rose LLP 1/14/20

OSHA 2019 300A reporting due by March 2:  Employers subject to the Occupational Safety & Health Administration’s (OSHA) reporting requirements have until March 2, 2020 to electronically file their 2019 Form 300A injury and illness summaries. Reporting is required for any establishment with 250 or more workers and for establishments with 20 or more workers in certain OSHA-designated industries, including construction, manufacturing, transportation, and healthcare.  Form 300A, “A Summary of Work-Related Injuries and Illnesses," summarizes an establishment’s work-related illnesses and injuries for the previous year and aggregates the number of OSHA-qualifying cases, days away from work and injury and illness types for a single establishment. Qualifying establishments must electronically file their Form 300As annually through OSHA’s Injury Tracking Application, or the state-equivalent for employers in State Plan states – even if no work-related injuries or illnesses occurred during the year. An “establishment” under OSHA regulations is “a single physical location where business is conducted or where services or industrial operations are performed.” By regulation, these reporting requirements apply in federal OSHA states and in State Plan states, though State Plan states may adopt stricter reporting requirements than required by OSHA.   Source: Thompson Coburn LLP 1/7/20

Fluctuating workweek schedule not permissible in Pennsylvania:  The Pennsylvania Supreme Court issued its long-awaited decision in Chevalier v. General Nutrition Centers, No. WAP 2018 (Pa., Nov 20, 2019). The case concerned a class of former non-exempt store-level managers for General Nutrition Centers (GNC) who claimed that they were not properly compensated for overtime hours worked under the Pennsylvania Minimum Wage Act (PMWA). While the PMWA is similar to the federal FLSA, the Pennsylvania Supreme Court found that because the PMWA law does not expressly provide for the use of the fluctuating workweek method, the fluctuating workweek method of calculation is not permissible in Pennsylvania. Any Pennsylvania employer who is currently using the fluctuating workweek to calculate overtime should revise its overtime calculation method in light of the Chevalier decision.  Source:  Leech Tishman Fuscaldo & Lampl LLC 1/8/19

Mancession – women outnumber men in the workforce: Job growth slowed last month as U.S. employers added just 145,000 jobs. But there was an interesting milestone in Friday's report from the Labor Department. 95% of the net jobs added in December went to women.  Women now hold just over half of all payroll jobs in America, for only the second time in history. The first was during the Great Recession, when a wave of layoffs hit male workers first, temporarily giving women an edge in the workplace. The period was even dubbed the Mancession.   This time may be different.   "I feel very strongly that a year from now, their share will continue to be over 50%," says Betsey Stevenson, a University of Michigan economist who served in the Obama administration.  Source:  NPR 1/10/20

State sponsored Paid Family Leave laws keeps women in the workforce:  A new study funded by the March of Dimes Center for Social Science Research and conducted by the Institute for Women’s Policy Research (IWPR), underscores the long-term effects of paid family leave on women’s participation in the workforce. The analysis of states that have implemented paid leave policies found a 20% reduction in the number of women leaving their jobs in the first year after welcoming a child, and up to a 50% reduction after five years. This research is part of March of Dimes’ mission to advance actionable science that can improve the health of all moms and babies. Over the long term, paid leave nearly closes the gap in workforce participation between moms of young children and women without minor children. For women who do not have access to this leave, the study found that nearly 30% will drop out of the workforce within a year after welcoming a child, and one in five will not return for over a decade. Many U.S. employees "will face the demands of having a baby, and many have to make serious sacrifices that affect much more than their finances," said Rahul Gupta, chief medical and health officer at the March of Dimes.  Source: March of Dimes 1/3/20

Flexible Savings Accounts (FSA) are covered under COBRA:  COBRA regulations make it clear that a health care FSA constitutes a group health plan subject to COBRA. Under a typical FSA, the employee designates an amount of salary reduction contribution for the plan year and directs the employer to credit that amount to the FSA. Under the FSA, an individual account (generally, an unfunded book account of the employer) is credited with a certain level of contributions (either employer-paid contributions or employee-paid contributions, or both) to reimburse specified eligible expenses up to an annual dollar limit, and it is debited as those expenses are reimbursed. Most health FSAs are subject to special COBRA continuation rules if the health FSA meets certain conditions. COBRA coverage does not have to be continued beyond the plan year in which the qualifying event occurs, if (1) the health FSA is considered an “excepted benefit” under HIPAA and (2) the maximum COBRA premium equals or exceeds the maximum health FSA benefit (which is almost always the case). Employers can satisfy these two conditions by plan design and ensure that COBRA does not apply beyond the current plan year.  Source:  CCH 1/17/19

What to do if a new hire blindsides you with a religious accommodation request:  In 2018 the EEOC sued Walmart alleging it engaged in religious discrimination and retaliation by refusing to accommodate an applicant’s request for religious accommodation and then rescinding its offer of employment in retaliation.  In April 2016, Walmart offered Hedican the salaried position of assistant manager at one of its Wisconsin stores. Hedican accepted the offer and then informed Walmart that he observed the Sabbath for religious reasons and would be unable, indefinitely, to work Saturdays until after sundown.  A few weeks later, Walmart concluded that accommodating Hedican's request could lead to a loss in customer service and sales at the store and denied his religious accommodation request and rescinded its offer.  Walmart says it offered to help Hedican apply for hourly supervisory positions at the store, but Hedican didn't take the company up on its offer of assistance.  The EEOC alleged that Walmart's encouragement of Hedican to apply for a lower-paying hourly position was not a reasonable accommodation and that accommodating him would not have caused undue hardship. Furthermore, the EEOC claimed Walmart should have offered him another job, not just the opportunity to apply for another job.  The trial judge disagreed and showed other cases that concluded that offering a prospective employee an opportunity to apply for other positions that would accommodate their religious practices can be considered a reasonable accommodation. "Title VII also does not require employers to accommodate an employee's religious practices in a way that 'spares the employee any cost whatsoever," the judge wrote.  Source: Law360.com 1/16/19