The DOL Has Begun to Issue Opinion Letters Again – And You Should Read Them

Under President Obama, the U.S. Department of Labor stopped issuing specific Opinion Letters[1] in 2009, in favor of issuing more general Guidance. After President Trump took office, the DOL announced that it would begin to once again issue Opinion Letters. This is a good thing for employers. Although the Opinion Letters do not have the force and effect of law, they do tell us how the DOL is going to interpret the law.

On April 12, 2018, the DOL issued two new Opinion Letters, each dealing with specific aspects of the Fair Labor Standards Act.

In the first Opinion Letter, an employer asked if it was required to compensate non-exempt employees for fifteen (15) minute breaks that it was required to allow employees under the Family and Medical Leave Act. The employee’s physicians certified that they needed to take a fifteen minute break every hour (eight, fifteen minute breaks in an eight hour shift). The DOL acknowledged that such breaks were primarily for the benefit of the employees in question and that the FMLA states that FMLA-required breaks may not be compensable time. As such, the DOL indicated that the breaks were not compensable time. However, the DOL also noted that the employees who were taking FMLA-protected breaks were nonetheless also entitled to the same paid breaks as their co-workers. So, if the employer allowed all of its employees to take two, paid fifteen minute breaks a day, then the two employees taking eight, fifteen minute breaks a day should be paid for at least two of those breaks.

Continue reading “The DOL Has Begun to Issue Opinion Letters Again – And You Should Read Them”

Three Cheers For the Seventh Circuit

All employers (at least, those with 50 or more employees) must deal with the issue of whether or not the ADA requires them to allow “disabled” employees to take additional time off of work after they have exhausted their FMLA leave as  “reasonable accommodation.” The EEOC has even taken the position that an employer must allow unpaid leave until it can prove that it would be an “undue burden” to continue to do so.

On September 20, 2017 the Seventh Circuit Court of Appeal issued a ruling that is remarkable in its common sense. In Severson v. Heartland, the Seventh Circuit held that Heartland had not violated the ADA when it terminated Mr. Severson upon the expiration of his 12 weeks of FMLA leave rather than allowing him an additional two to three months of leave to recover from back surgery.

Continue reading “Three Cheers For the Seventh Circuit”

Can You Contact an Employee While They are on FMLA Leave?

Today’s SHRM Daily Newsletter contains an article entitled “Leave Employees Alone During FMLA Time Off”. In the article, the author admonishes employers to rarely “call an employee in” or to contact the employee for work-related purposes while the employee is on FMLA leave. I agree with the author. If you contact an employee regarding work while they are on FMLA leave, you are asking to be sued and, I would never actually ask them to come in to work for anything short of a dire emergency. One element that the author did not stress is that all such work must be 100% voluntary. If the employee feels threatened or coerced to perform the work while on leave, you have violated the Act, even if you allow them to continue their leave and reinstate them when they are released to return to work.

Having said that, if you find that you absolutely must contact an employee while they are on FMLA leave, don’t forget your obligation to compensate them for the time.

Continue reading “Can You Contact an Employee While They are on FMLA Leave?”

Amid All the Political Noise, Some Good News for Employers: New EEO-1 Pay Data Obligation May Not Be Enforced

You may recall that in February 2016, the EEOC issued a rule amending the Form EEO-1. The rule would require private employers with 100 or more employees to gather and submit pay data along with their EEO-1 reports. Many employer-groups complained that complying with the new rule would require an inordinate amount of time and manpower, and result in no real employee benefit. The deadline for the new EEO-1 reports is currently March 31, 2018.

Last week the House Committee on Appropriations may have taken a vote that effectively kills the new rule. On July 13, 2017, the Committee voted to limit the EEOC’s ability to implement its revised EEO-1 and voted in an amendment to the Appropriations Bill which states that “[n]one of the funds made available by this Act may be used by the Equal Employment Opportunity Commission for the ‘collection of information,’ . . . from employers relating to employees’ earnings and hours worked . . . .”

If the Appropriations Bill is ultimately passed, it is unlikely that the EEOC’s revised EEO-1 will be implemented in 2018 as scheduled. This will undoubtedly save employers both time and money associated with the burdensome collection and analysis of the revised EEO-1’s pay data.

OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators

Good news! OSHA has rescinded an interpretation letter commonly referred to as the “Fairfax Memo.” It has also removed a related guidance from OSHA’s Field Operations Manual.

The Fairfax Memo mandated that non-employees, aka union business agents, must be permitted to accompany OSHA during the walk-around portion of an inspection.  Examples mentioned in the memo of who could participate in the inspection included officials of labor organizations that did not represent the employer’s employees and “community organizers.” Continue reading “OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators”

Good News for Federal Contractors – President Trump Blocks Implementation of Obama “Blacklisting”

In 2014, President Obama signed the ironically entitled Fair Pay and Safe Workplaces Executive Rule. This Rule would have required large federal contractors, and their subs, to disclose violations of fourteen state and federal labor laws when bidding on federal contracts. The Rule also forbade the use of mandatory employment arbitration agreements by federal contractors with certain contracts. Last, the Rule required contractors to provide employees with wage statements containing certain information. All aspects of the Order, other than the wage statement provision went into effect January 1 of this year. Continue reading “Good News for Federal Contractors – President Trump Blocks Implementation of Obama “Blacklisting””

OSHA Delays Enforcement of Anti-Retaliation Provisions – Again

The Occupational Safety and Health Administration (OSHA) announced today that it will delay enforcement of the anti-retaliation provisions of the revised recordkeeping regulation until December 1, 2016. This delay is at the request of the Texas Court considering the Complaint and request for injunction filed by several industry groups in Texas. This is the second time that OSHA has delayed implementation of the new regulation.

Employers should plan as if OSHA will begin to enforce the new regulation on December 1 and consider how to revise their post-accident and safety incentive policies.