Quick Hits - March 8, 2023 - American Society of Employers - ASE Staff

Quick Hits - March 8, 2023

Daylight Savings starts March 12th  Set your clocks forward one hour Sunday morning, March 12th. Daylight Saving Time was first proposed by George Vernon Hudson in 1895, and its use in the U.S. was first mandated during World War I. It was subsequently used on and off for years by various countries and U.S. states. Since the 1970s; however, it has mostly remained in effect in the U.S. and Europe. The salaries of exempt employees are not affected by Daylight Savings Time. As for non-exempt employees, employers will have to decide whether to pay those employees who are at work when the clock is set forward for this “lost” hour. They do not have to be paid for it since they did not actually work it. The employer may also have to decide whether the lost hour, if paid, will count toward overtime or not (it does not have to). However, an employer must also determine if the hour counts towards leave accrual. To get a copy of a poster, click here

FMLA can reduce hours scheduled (think required OT):  In a separate opinion letter  the DOL said that eligible employees may use FMLA leave to reduce their scheduled hours to a shorter workday.  In response to an anonymized employer's question about whether the FMLA allowed a worker with a serious health condition to use their allotment of medical leave to cut their workday down to eight hours per day, Principal Deputy Administrator Jessica Looman replied in the affirmative. Thus, the department said nothing legally prevented a worker from cutting down their scheduled hours on an ongoing basis, so long as their medical needs persisted.  "The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely," Looman said. Further, Looman said that the ADA and FMLA were not mutually exclusive. Obligations to accommodate disabled workers under the ADA did not limit those workers' ability to take FMLA leave, Looman said, and a worker who exhausted their FMLA allotment may seek to cut their scheduled hours as an accommodation under the ADA. Source: Law360 2/9/23

OFCCP repeals Trump era religious exemption regulations: OFCCP has announced the rescission of the Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption rule adopted in January 2021 by President Donald Trump. The rescission is to be posted in the Federal Register on March 1, 2023.  The initial rule was promulgated at the end of the Trump administration as a political move.  The rule would allow discrimination on the basis of religious belief and put it into the hands of untrained compliance officers to determine if a religious belief is sincerely held.  It was unworkable and unmanageable.  The OFCCP is going back to the way they have interpreted religious issues in the past.  Jenny Yang, director of the Labor Department's Office of Federal Contract Compliance Programs, said in a statement Tuesday that the agency "remains committed to protecting workers from discrimination and safeguarding principles of religious freedom."  "This rescission restores the department's prior approach of aligning Executive Order 11246's religious exemption with Title VII case law as applied to the facts and circumstances of each contractor when it invokes the exemption," Yang said. Source:  Jackson Lewis 3/1/23, Law360 2/28/23

Using worker surveillance tools could discriminate against disabled workers:  Today's employers may be familiar with the growing popularity of automated worker surveillance technologies. Such tools monitor and rank how employees move and behave on the job and can help inform decisions about task management, advancement, and even termination. However, surveillance tools can also create barriers for some workers, including disabled employees.  From keylogging trackers to monitoring of web browsing history, surveillance tools can show businesses when a worker is active, how many emails they send, and even what their keystrokes or facial expressions may reveal. Employers can also monitor workers by tracking participation in workplace wellness programs. However, employers who use these tools should be mindful of the red flags and risks of discrimination. For instance, people with disabilities are particularly vulnerable to the harms of automated surveillance, which can worsen systemic barriers they already face in the workplace. In fact, when it comes to automated decision-making, research shows that data science predictions are often completely wrong for highly diverse groups such as disabled people.  A new toolkit from the ODEP-funded Partnership on Employment & Accessible Technology (PEAT) explores these issues and offers employers a more complete picture of the risks of automated worker surveillance tools.  Source:  ODEP

DEI jobs are going in reverse direction:  The layoffs sweeping the technology industry are gutting diversity and inclusion departments, threatening company pledges to boost underrepresented groups in their ranks and leadership.  Listings for DEI roles were down 19% last year — a bigger decline than legal or general human resources jobs saw, according to findings from Textio, which helps companies create unbiased job ads. Only software engineering and data science jobs saw larger declines, at 24% and 27%, respectively.  Bloomberg News identified DEI professionals who lost their jobs in recent weeks at Amazon.com Inc., Meta Platforms Inc., Twitter Inc. and Redfin Corp. Many said they expect their responsibilities will go to former colleagues who remain or to employee resource groups, which often don’t get compensated for that work. “Cutting DEI oriented staff now, unless you’ve made really progress and can say ‘mission accomplished’ is not a good look,” said Angie Kamath, dean at the NYU School of Professional Studies, who focuses on workforce development. “There are some real risks.”  In some cases, companies might even backslide, said Monne Williams, an Atlanta-based partner at McKinsey & Company.  Source: Bloomberg 1/24/23

Age discrimination in France:  Over 55 and that’s about it for trying to get a job.  President Emmanuel Macron is embarking on an overhaul of France’s expensive and generous pension system in order to preserve its finances to increase the age of retirement from 62 to 66 the notion of forcing people to delay their retirement has incited outrage. Polls show that four out of five people oppose raising that threshold, and the country is bracing for raucous nationwide strikes, as labor unions and workers of all stripes protest efforts to change a cherished totem that has long been viewed as a political third rail by the French. “Retirement is considered sacred,” said Luc Rouban, a senior research fellow at the Center for Political Research at SciencesPo in Paris. “For many, it’s like reaching paradise.” In recent surveys by Indeed France, the country’s biggest online jobs board, a quarter of job applicants over 55 reported that employers had told them they were too old to qualify. Four out of 10 employers surveyed by Indeed said they didn’t intend to recruit anyone older than 45. And a quarter of companies acknowledged they would hire a younger person at a lower salary over an older candidate.   “Despite valuable experience, older workers often find themselves shunned by recruiters, who have certain preconceptions about age,” said Charles Chantala, a senior director at Indeed. Those include concerns about health and stamina, salary demands commensurate with experience, training in the latest technologies and the idea that people closer to retirement might stick around for only a few years.  Source:  NYTimes 1/17/23

 

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