The U.S. Department of Labor (DOL) has requested public comments on a proposed rule that would require pension plan service providers to furnish employers and other plan fiduciaries with a guide to assist them in navigating fee disclosure documents. The proposal announced today would require that covered service providers furnish a guide if disclosures are made using multiple or lengthy documents. The guide must specifically identify the document, page or other specific locator, such as section, that enables the employer to quickly and easily find fee information.
More information is available here:
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Federal Trade Commission (FTC) have issued two guidance documents on background checks performed for employment purposes. One document is for employers; the other is for job applicants and employees. This is the first time that the two agencies have partnered to create resources addressing background checks. The agencies emphasize that employers need written permission from job applicants before conducting background checks. They also reaffirm that it is illegal to discriminate based on a person's race, color, national origin, sex, religion, age, disability, or genetic information, when conducting background checks. The documents, "Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know," are available here:
As a recent article by the New York Times emphasizes, telecommuting is on the rise. The typical telecommuter is a 49-year-old college graduate — man or woman — who earns about $58,000 a year and belongs to a company with more than 100 employees. An annual survey conducted by year by SHRM found more companies plan to offer telecommuting in 2014 than just about any other new benefit. Federal employees in Washington who worked from home during four official snow days saved the government an estimated $32 million, according to Kate Lister, president of Global Workplace Analytics. Further, telecommuting isn't limited to one sector of the population. Men, women, parents, people without children, young and old all participate. Those who work at home tend to put in longer hours and are often more productive, although telecommuting works best when a company has developed a plan, including the best technology to use. Read more here:
The California Chamber of Commerce is opposing a rule proposed by the federal Occupational Safety and Health Administration (OSHA) that would permit the agency to release to the public, detailed information about employers regarding specific workplace injuries and illnesses, including the company, location and specific data. OSHA states that the rule would provide employees, consumers, labor organizations and businesses with important information about companies' workplace safety records. However, according to the CalChamber, "the information is not a reliable measure of an employer's safety record or its efforts to promote a safe work environment. Many factors outside of an employer's control contribute to workplace accidents, and many injuries that have no bearing on an employer's safety program must be recorded." More information is available here:
U.S. Secretary of Labor Thomas E. Perez traveled with President Obama to Central Connecticut State University in New Bristol, Connecticut on March 5 to continue the Obama administration's call to raise the federal minimum wage to $10.10 per hour. They were joined by Governor's Dan Milloy of Connecticut, Deval Patrick of Massachusetts, Lincoln Chafee of Rhode Island and Peter Shumlin of Vermont. The governors support raising the minimum wage and have pledged to take action in their respective states. Perez's trip to Connecticut followed a trip through the Pacific Northwest earlier in the week, where he spoke with retailers who voluntarily increased the wages of their employees. On March 3, Perez visited Costco Wholesale headquarters in Issaqah, Washington, where he met with CEO Craig Jelinek to learn how the discount warehouse has been impacted by paying its employees more than the current federal minimum wage.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued two new technical assistance publications addressing workplace rights and responsibilities related to religious dress and grooming. The question-and-answer guide, entitled "Religious Garb and Grooming in the Workplace: Rights and Responsibilities," and an accompanying fact sheet, provide a user-friendly discussion of the applicable law, practical advice for employers and employees, and numerous case examples based on the EEOC's litigation. Employers covered by Title VII must make exceptions to their usual rules to permit applicants and employees to follow religiously-mandated dress and grooming practices unless doing so poses an undue hardship on the employer's business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
The former head of a private prep school in Miami, Florida has lost his $80,000 age discrimination settlement after his daughter posted a comment on Facebook about the settlement. Patrick Snay, 69 -- the former head of Gulliver Preparatory School -- filed an age discrimination complaint when his 2010-11 contract wasn't renewed. In November 2011, the school and Snay came to an agreement in which Snay would be paid $10,000 in back pay, and an $80,000 settlement. Gulliver Schools also agreed to cut Snay's attorneys a check for $60,000. The parties signed a confidential agreement as part of the settlement, which prohibited Snay from talking about the settlement to anyone except his attorneys and other professional advisors. However, Snay's daughter posted on Facebook that "Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT." Snay's daughter had 1,200 Facebook followers, which included many current and former Gulliver students, and word of the post spread back to school officials. Read more here:
The U.S. Supreme Court has ruled that the whistleblower protections in the Sarbanes-Oxley financial-reform law extend to employees of private sector employers who contract with public companies. The court, in a decision by Justice Ruth Bader Ginsburg, rejected Fidelity parent FMR's argument that only direct employees of public companies should receive protection. FMR, like most mutual fund companies, operates its funds with zero employees under a contracting arrangement with separately incorporated investment advisors. It sought to avoid liability under a whistleblower-retaliation case filed by Jackie Hosang Lawson, a former senior director of finance who claimed she was punished for disclosing certain cost-accounting improprieties. Read more here:
The U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, has released a new fact sheet on correcting immigration records, which employers should review. The fact sheet advises individuals that E-Verify compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records. If the information matches, the employee is eligible to work in the United States. If there's a mismatch, E-Verify will advise the individual about the problem, and will allow the individual to work while he or she resolves the problem. If an individual receives a DHS Tentative Nonconfirmation (TNC) from E-Verify, the individual's immigration records may be inaccurate, and should be corrected.
Twenty-one states and the District of Columbia now have minimum wage rates higher than the federal rate. The Department of Labor (DOL) has created a helpful chart detailing the minimum wage of all fifty states. For example, the chart notes that in California, the current minimum wage is $8.00 (will increase to $9.00 per hour, effective July 1, 2014). In addition, the chart advises that California's overtime law provides that any work in excess of eight hours in one workday, in excess of 40 hours in one workweek, or in the first eight hours worked on the seventh day of work in any one workweek shall be at the rate of one and one-half times the regular rate of pay. Any work in excess of 12 hours in one day or in excess of eight hours on any seventh day of a workweek shall be paid no less than twice the regular rate of pay. The DOL chart is located here:
In what may be the largest award of its kind in Los Angeles legal history, a 66-year-old man, Bobby Nickel, has been awarded $26 million by a jury that found he was discriminated against and harassed based upon his age by his supervising managers at Staples. The jury awarded Nickel $3.2 million in compensatory damages and more than $22.8 million in punitive damages. Nickel was 64 when he lost his job. He had been hired by Corporate Express in August of 2002 as a facilities manager. Staples Contract and Staples Inc. acquired Corporate Express in 2008. For nine years, Nickel received positive job reviews, according to his Los Angeles Superior Court lawsuit, filed in March 2012. However, because Corporate Express' pay scale was higher than that of employees hired by Staples, Nickel alleged that his mangers wanted to discharge older, higher paid employees. Nickel also alleged that he was a regular butt of jokes at staff meetings and was referred to as "old coot" and "old goat."
Employers must comply with the Genetic Information Nondiscrimination Act (GINA), which is a federal law that prohibits an employer from requesting genetic information from an applicant or employee, or from making employment decision's based on genetic information. GINA applies to employers with 15 or more employees. In is important for employers to understand that family medical history is considered genetic information. Thus, employers must ensure that any "company" physician conducting a "pre" or "post" employment medical examination does not request the applicant's or employee's family history as part of the evaluation. Further, employers may not ask questions about an applicant's family history as part of the hiring process, including during the interview or as part of a background check. A recent case, EEOC v. Founders Pavilion Inc., in which the employer has agreed to pay $370,000 to settle a genetic discrimination lawsuit, is illustrative.
Boh Bros. Construction Co. has agreed to a consent judgment with the U.S. Equal Employment Opportunity Commission (EEOC) which requires the company to pay $125,000 in compensatory damages to a former employee in a sex discrimination/same sex harassment case. The EEOC filed a lawsuit against Boh Bros. charging that a superintendent allegedly harassed a subordinate with verbal abuse, taunting gestures of a sexual nature, and by exposing himself. The supervisor admitted at the trial that he harassed Woods because he thought Woods was feminine and did not conform to the supervisor's gender stereotypes of "rough iron workers." A jury found that Boh Bros permitted hostile work environment sexual harassment and awarded a total of $ $451,000, which the district court reduced to $301,000.
EEOC Seeks Public Comment on Revised Management Directive Improving Federal Sector Complaint Process
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public comment on significant revisions to Management Directive 110 (MD-110), which provides federal agencies with EEO policies, procedures and guidance related to the newly revised 29 C.F.R. Part 1614 (federal sector EEO regulations). The full text of the proposed revisions is available on the regulation.gov website at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.
The trend to limit the scope of background checks continues. The City of San Francisco's Board of Supervisors has unanimously passed a "ban the box" ordinance, which is the first such legislation in San Francisco to prohibit private sector employers from obtaining information about someone's arrest or conviction record. Under current San Francisco law, in place since 2006, public employers are prohibited from initially asking about someone's arrest or conviction record. However, background checks may be conducted later on in the application process. Certain job categories are exempt, such as child care or law enforcement. The new ordinance extends that law to private sector employers.
Employers Must Ensure That New Managers And Supervisors Are Properly Informed of Existing Employee Accommodations
In general, the Americans with Disabilities Act (ADA) provides that employers must provide employees who are unable to perform the essential functions of the job with an accommodation, if doing so enables the employee to perform the essential functions of the job, without imposing an undue hardship on the employer. To ensure compliance, employers must properly train new managers and supervisors about the employer's legal obligation to provide accommodations to employees. Further, any new manager or supervisor must be fully informed as to any employee accommodations currently in place, so that the new manager or supervisor continues workplace policies that are ADA compliant.
Extended Stay Hotels will pay $75,800 to settle a pay discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Extended Stay Hotels paid Latoya Weaver less than male guest services representatives, including some newly hired male guest services representatives, at the hotel's Lexington Park, Maryland, location. The EEOC further charged that Extended Stay Hotels unlawfully paid other female employees lower wages than those paid to male employees for performing equal work. In addition to the $75,800, Extended Stay Hotels is enjoined from engaging in wage discrimination based on sex in the future. Further, the hotel has agreed to provide annual training on federal anti-discrimination laws, report to the EEOC about its handling of any wage discrimination claims and post a notice on this settlement. For more information on this go to: www.eeoc.gov.
The National Labor Relations Board (NLRB) is inviting briefs from interested parties on two questions: whether a religiously-affiliated university is subject to the NLRB's jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees. The case is Pacific Lutheran University (19-RC-102521). At this Tacoma, Washington-based university, the Service Employees International Union, Local 925 filed a petition to represent a unit of all non-tenure-eligible contingent faculty who taught a certain number of hours. The university argues that the NLRB lacks jurisdiction because the university is a religiously-operated institution that is not subject to the NLRA. For more information on this go to: www.nlrb.gov.
President Obama has signed an Executive Order raising the hourly minimum wage for employees of government contractors to $10.00 per hour. The new minimum wage is in effect as of January 1, 2015. According to the Order, the wage increase is intended to "increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by increasing to $10.10 the hourly minimum wage paid by those contractors. Raising the pay of low-wage workers increases their morale and the productivity and quality of their work, lowers turnover and its accompanying costs, and reduces supervisory costs. These savings and quality improvements will lead to improved economy and efficiency in Government procurement." The state of California recently raised its minimum wage to $9.00 per hour, effective July 1, 2014 and then to $10.00 per hour, effective January 1, 2016.
Increasingly, employers have the need for computer professionals as part of their workforce. Due to the nature of their responsibilities, these employees can be required to work long hours, thereby incurring overtime. However, certain computer professionals may be exempt from overtime, pursuant to the Computer Professional Exemption, provided specific criteria are met. Unfortunately, some employers do not realize the high wage requirements and level of skill that must be met before a computer/IT employee can properly be classified as exempt from overtime. Because of the serious wage and hour implications associated with misclassifying an employee as exempt from overtime, employers need to perform a careful and detailed analysis of a computer professional's job duties before classifying the employee as exempt from overtime pursuant to the Computer Professional Exemption.
The City of Los Angeles is facing a $26 million dollar payout for banning naps during lunch breaks. City officials wanted to ensure that the public did not observe the city's trash disposal truck drivers sleeping in their trucks and thus established break time rules prohibiting naps and placing other restrictions on where and how drivers could have lunch. Subsequently, more than 1000 truck drivers filed a class action lawsuit alleging they were improperly barred from napping during their meal periods. Counsel for the truck drivers argued that such policies effectively required the drivers to remain "on duty" without being paid. The trial court judge and a state appeals court have sided with the drivers; according to the trial court judge, "The city does impose duties during meal periods: the duties to stay awake and to avoid congregating...the drivers are thus subject to the city's control during their meal periods." Read more.