In 2016 the U.S. Department of Justice and the U.S. Federal Trade Commission released with little fanfare the Antitrust Guidance for Human Resource Professionals (Antitrust Guidance). Generally, the Guidance warned human resource professionals that agreements between competitors to set wages or to refrain from soliciting each other’s employees (“no-poach agreements”) could result in criminal prosecution under U.S. antitrust laws. Although the DOJ has pursued a number of civil cases since then, it did not obtain its first criminal indictment until December of 2020.

Continue reading “Be Very Careful If You Discuss Wages and High-Level Hiring With Competitors, or You Might End Up in Jail” →

A recent Third Circuit Court of Appeal decision provides great guidance on what a good call-in policy can look like. In this case the employer, Penn State Health, utilized a call-in policy that required employees to make two calls when they wanted to request FMLA leave: First, an employee had to call to a designated “call-off” line, and second, the employee was required to call the Company’s third-party administrator to report the need for FMLA leave.

In this case the employee, Ms. Kelly, failed to call one of the lines and consequently earned disciplinary “points”. When she reached the maximum allowed points, her employment was terminated.

Continue reading “Check Your Call-In Policies” →

Right now, a surprising number of eligible workers are declining to be vaccinated, with a similar percentage indicating that they will refuse once they become eligible. Depending upon whose numbers you believe, approximately one-half of the health care workers and first responders eligible to receive the vaccine have indicated that they will not do so. This is leading many employers to consider whether or not they should require or incentivize their workers to take the vaccine when it becomes widely available. There are a few things to keep in mind if you are considering doing so.

ADA/Title VII Right now, you CAN require your employees to get the vaccine. However, you must accommodate a disabled employee who is unable to take the vaccine (ADA) as well as an employee to objects to being vaccinated due to sincerely held religious beliefs (Title VII). If either the ADA or Title VII applies to your situation, you may not be able to force the employee be accept the vaccine. Rather, you might accommodate the employee by allowing her to work remotely or offer her an alternate schedule that does not require as much co-worker and client interaction.

The EEOC has already stated that getting the COVID-19 vaccine is not a medical examination, but questions asked in the vaccination process may well seek medical information in violation of the ADA. This information should remain with the vaccine administrator and not be provided to the employer.

FLSA You must consider if the time spent by your workers being vaccinated is compensable time under the FLSA. If you require that they be vaccinated, employees may have a legitimate claim to compensation for the time spent doing so. You can count on plaintiff’s lawyers challenging this in the form of FLSA class-actions. (Yet another reason to include an Alternate Dispute Resolution process disavowing any class or collective actions in your Handbook, but that is an issue for another article.) 

Workers Compensation/Civil Liability One of the primary concerns of employers is that they may open themselves to workers compensation and civil liability claims if an employee suffers an adverse reaction due to the vaccine. We obviously do not have sufficient law at this point to say with certainty whether or not these types of claims will succeed, but you can rest assured that employees will attempt to make claims under one or both theories.

“Voluntary wellness program” Many employers are considering offering employees come sort of incentive to encourage them to be vaccinated. Employers should carefully consider the ramifications of each type of incentive. A cash reward could be constitute a non-discretionary bonus that must be included in a non-exempt employee’s regular rate of pay for the period in which it was earned. In addition, employers must consider whether or not offering an incentive would constitute a “voluntary wellness program” that might be prohibited by the EEOC guidelines. (Keep in mind that last month the EEOC withdrew its proposed Rule that would have made it easier and safer to implement such a voluntary wellness program.) 

Bottom line: employers should carefully consider the risks and benefits of requiring or incentivizing employees to take the COVID-19 vaccine before they do so.

President Biden’s almost $2 trillion “American Rescue Plan” is working its way through Congress. Several provisions of the Plan could significantly impact employers: 

Minimum wage: The Plan would raise the federal minimum wage to $15 an hour over four years and end the tipped minimum wage and the sub-minimum wage for people with disabilities. 

Worker safety: The Plan includes significant provisions designed to improve worker safety, including a COVID-19 Standard to be created by OSHA as well as additional funding for enforcement. 

Expanded FFCRA leave: The Plan would extend the paid sick and family leave benefits of the FFCRA to September 31, 2021 and would require all employers to offer FFCRA leave, including health care providers and those with fewer than 50 employees and those with more than 500 employees. The ARP also would require up to 14 weeks of paid sick and family and medical leave and expand the list of parental caregiving situations that will be covered. The Plan proposes to reimburse employers with fewer than 500 workers the full cost of providing the leave. 

Extended unemployment: The ARP would increase federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that was approved last year, through September of this year, and expand eligibility to independent contractors. 

Miscellaneous: The ARP would also:

• Grant approximately $440 billion in support to “struggling communities,” including small businesses, Tribal governments, public transit, and essential workers;
• Provide $130 billion to help schools safely reopen;
• Expand the Higher Education Emergency Relief Fund;
• Expand financial assistance to both childcare providers and families, including:
  • providing a fully refundable Child Tax Credit for one year, and
  • expanding the Earned Income Tax Credit for one year;
• Provide another $1 billion for states for Temporary Assistance to Needy Families (“TANF”) recipients.

Employers need to keep an eye on this Bill as it winds its way through Congress.

On the 8th of this month the Ninth Circuit Court of Appeals issued a ruling that certain per diem payments must be included in an employee’s regular rate of pay. Although the Ninth Circuit covers only Alaska, Arizona, California, Guam and Hawaii, the ruling is nonetheless worth noting to those of us fortunate enough to live and work in the Fifth Circuit.

As you know, under the FLSA a non-exempt employee must be paid overtime at the rate of time and a half times the employee’s regular rate of pay. This fact begs the question: what constitutes the regular rate of pay?

The short answer is: it depends.

Continue reading “Ninth Circuit Issues a Per Diem Ruling That is Worth Noting” →