EverythingPeople This Week!

9

Jul

2019

DOL Wage and Hour Division Issues Opinion Letters Addressing Overtime and Hours Worked Issues

Author: Michael Burns

Last week the U.S. Department of Labor’s Wage and Hour Division published three Opinion Letters on various wage and hour issues. Opinion Letters provide guidance on wage and hour questions but do not bind a court to its position on that question or issue. The three opinion letters address compliance issues surrounding overtime pay in various aspects.

2

Jul

2019

Overtime Pay Calculation – Are you Doing it Correctly?

Author: Michael Burns

At ASE we often get questions from our members about proper overtime pay calculation when different pay plans are at play. To calculate overtime pay for non-exempt hourly employees correctly, one should first determine a few things.

2

Jul

2019

Are the Equal Pay Initiatives What They Seem to Be?

Author: Anthony Kaylin

When the Equal Pay Act (EPA) was passed in 1963, it made it illegal for employers to pay women lower wages than men for equal work on jobs requiring the same skill, effort, and responsibility.  Over the years, these cases were far and few between and difficult to win.  As a result, the previous administration as well as a growing number of blue (Democratic controlled) states have passed more rigorous pay discrimination laws, pushing for pay transparency as a solution for the wage...

25

Jun

2019

Employers – Ensure Your Grooming Policies Aren’t Discriminatory

Author: Kristen Cifolelli

Most employers have policies that outline requirements regarding dress and appearance.  These can range from business vs. casual dress, if body piercings or visible tattoos are allowed, and some outline grooming standards.  Some employer grooming standards not only require a neat appearance but may also detail whether certain hairstyles or certain hair colors are prohibited or whether male employees must be clean shaven or have short hair.  As employers define their dress code...

25

Jun

2019

Swing of NLRB Pendulum Continues to Compel Employee Handbook Policy Review

Author: Michael Burns

The Trump National Labor Relations Board (NLRB) continues its pro-business course. Until 2017, the NLRB regularly attacked employer rules that it deemed restrictive, directly or indirectly, on employees' right to organize. Employers, including non-union, were compelled to review employee handbook policies/rules to correct rules that were viewed as restrictive toward union organizing rights.

18

Jun

2019

Severance Agreement Term Does Not Circumvent Discrimination and Equal Pay Actions

Author: Michael Burns

The Sixth Circuit Court of Appeals, whose jurisdiction includes Michigan, ruled against a machine parts manufacturer last August when it overturned a lower court decision that held an employee’s severance agreement barred her lawsuit alleging Title VII discrimination and violation of the Equal Pay Act.

11

Jun

2019

JP Morgan Chase Settles for $5 Million in Largest Paternity Leave Lawsuit

Author: Kristen Cifolelli

In May 2019, JP Morgan Chase reached a tentative settlement of $5 million dollars to resolve a class action lawsuit alleging the bank’s parental leave policy was biased against dads.  It is the largest recorded settlement in a U.S. parental leave discrimination complaint. 

11

Jun

2019

Work Restrictions are not Disabilities

Author: Anthony Kaylin

Consider the following scenario.  An employee is injured (whether at work or outside of work) and sees a doctor.  When the employee returns, the employee provides a doctor note with work restrictions because of the underlying condition of the injury. 

4

Jun

2019

States Across U.S. Adopt Myriad of Wage and Benefit Laws

Author: Michael Burns

Late last year Michigan passed a minimum wage increase that increased this state’s minimum wage for the next 10 years. It also passed the Paid Medical Leave Act requiring employers with over 50 employees to provide five paid days off.

21

May

2019

Summer is Almost Here – If You Hire Minors, Remember Your Employer Responsibilities

Author: Michael Burns

As we noted a couple of weeks ago in the EPTW article, Summer Interns – To Pay or Not to Pay, employers operating internships must know what is required of them, and many may also be minors. Most internships should be paid ones pursuant to the law.

14

May

2019

“I Get by With a Little Help From My Friends…”

Author: Michael Burns

Did you know friendship as a hiring factor can beat off a discrimination allegation? A recent Michigan Court of Appeals ruling affirms other court decisions holding the same.

7

May

2019

EEOC to Collect 2017 and 2018 Pay Data by September 30th

Author: Anthony Kaylin

Last Friday, May 3, the Federal Register published the EEOC’s notice for pay collection for the 2019 EEO-1 cycle.  The surprising turn of events began when The National Women's Law Center and the Labor Council for Latin American Advancement challenged OMB’s decision to rescind the Obama Era change to the EEO-1 reporting to add pay reporting as unfair and poorly reasoned in November 2017.  In March 2019 the judge granted summary judgement to the two groups requiring the...

30

Apr

2019

Job Offers in Michigan can be Rescinded for Medical Marijuana Positive Testing

Author: Anthony Kaylin

According to a recent (April 23rd) case from the Michigan Appellate Court located in Ingham County, a job offer may be revoked if the applicant tests positive for marijuana, even if it is considered medical marijuana.

30

Apr

2019

Michigan Addressing Independent Contractor Misclassification

Author: Michael Burns

As EPTW readers know, joint employment, independent contractors, and worker misclassification confusion has been an ongoing federal concern. New federal joint employer regulations were published by the U.S. Department of Labor late last month.

25

Apr

2019

Judge Orders EEO-1 Pay Reporting by September 30

Author: Anthony Kaylin

U.S. District Judge Tanya Chutkan ordered the EEOC to have employers submit their 2018 pay data by September 30, 2019. She then ordered the EEOC to collect a second year of pay data, either collecting employers' 2017 data or collecting 2019 data in 2020.  The EEOC has until April 29 to put a statement on its website informing employers of the decision and requirement and to decide by May 3rd whether it will collect 2017 data or 2019 data.  

23

Apr

2019

Summer Interns – To Pay or Not to Pay

Author: Michael Burns

As summer approaches and the colleges empty out, many employers may be gearing up for a new batch of summer interns. Though ASE surveys show many employers pay their interns, some intern positions may be set up as unpaid because the work experience is what counts, right?  The Department of Labor has a seven-part test to determine if an internship should be classified paid or unpaid.

23

Apr

2019

Contractors Beware: OFCCP Proposes New Scheduling Letters and Turning Sharply Left

Author: Anthony Kaylin

On Friday April 12th, the Office of Federal Contract Compliance Programs (OFCCP) published its proposed new scheduling letters for Service and Supply audits, Compliance Checks, and Focused Reviews.  These proposed letters appear to follow a current of the agency to move further left in the enforcement of the OFCCP regulations. 

16

Apr

2019

Federal Employment Legislation Introduced So Far This Year

Author: Michael Burns

With so much state law change being introduced and passed around the country and in Michigan, and until fall of last year Congress and the Executive branches being controlled by business-friendly Republicans, there was not much federal employment legislation to be concerned about. The Executive branch has been busy trying to adjust employment and labor regulations, but these adjustments have been to roll back the more onerous regulations implemented during the Obama administration.

9

Apr

2019

Does a Pay Disparity Finding Mean That Pay Discrimination Occurred?

Author: Anthony Kaylin

The hottest issue in the EEO area is pay discrimination.  In the news it is often written that women earn approximately 20 cents or more less than a male counterpart.  When it is broken down by race, the disparity grows even larger.  However, does disparity mean discrimination?

9

Apr

2019

U.S. Department of Labor Proposes 4-Factor Joint Employment Test

Author: Michael Burns

Employers that have franchise operations, engage independent contractors, or both have had the rules and protections that come with these business relationships turned on their heads in recent years. A newly proposed 4-factor test may simplify things.

2

Apr

2019

NLRB Continues to Look at Employer Policy and Rules

Author: Michael Burns

The National Labor Relations Board (NLRB) continues to review union and non-union employer policies and rules.  In an Advice Memo published last week by the NLRB, the Board’s advice division looked at two employer rules through the lens of its 2017 Boeing decision. This decision trimmed back considerably the previous NLRB’s position that if an employer’s rule could in any way infringe upon an employee’s right to engage in protected concerted activity it would...

2

Apr

2019

Will the Supreme Court Raise the Requirements of a Religious Accommodation to ADA levels?

Author: Anthony Kaylin

Religious accommodations generally do not rise to the level of a disability accommodation when reviewed by courts.  But a recent case against Walgreens indicates that standard may change. 

26

Mar

2019

OFCCP Issues New Audit Lists

Author: Anthony Kaylin

On Monday March 25, 2019, the Office of Federal Contract Compliance Programs (OFCCP) released the audit list for fiscal year 2019.  It should be noted that if a contractor was on the previous list released in September 2018 and was not audited yet, the release of the new list does not negate any audits not initiated in the previous list.  In other words, the contractor in the September may still be audited.

26

Mar

2019

USDOL Publishes FMLA Opinion Letter Clarification

Author: Michael Burns

The U.S. Department of Labor (DOL) issued an Opinion Letter clarifying how employers must go about allowing an employee to use other time off (paid or unpaid) in conjunction with the Family and Medical Leave Act (FMLA) requirements.

19

Mar

2019

Limitation of Actions Clause Can Fail if Not Done Correctly

Author: Michael Burns

Several weeks ago we wrote about how a limitation of actions agreement/clause can effectively restrict state wrongful employment actions to a much shorter period of time – normally 180 days. It is recommended a limitation of actions clause not be included in the employee handbook. They can be placed on an employment application form in its boilerplate text section normally just above the signature and date lines, or it can be a separate agreement signed at the point a job offer is made.
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