Salary Basis for FLSA Exemptions Raised Dramatically

Claiming that your employees are exempt from overtime is about to become much more difficult with release of new regulations this week by the U.S. Department of Labor (“DOL”) under the Fair Labor Standards Act (“FLSA”).

On June 29, 2015, President Obama announced that the DOL is issuing proposed rules that will probably go into effect in early 2016. Those proposed rules redefine which employees have to earn overtime on their hourly pay instead of being paid as an exempt salaried employee.

The result could be skyrocketing overtime costs and more frequent wage and hour suits against companies that fail to make this transition carefully.

The advantage for an employer of an FLSA exemption has always been that the employer doesn’t have to track that employee’s hours and doesn’t have to pay overtime wages of 1.5 times the hourly rate for anything over 40 hours worked in one workweek. That advantage will no longer be available to you as an employer in 2016 for those employees you pay less than $970 per week, which adds up to $50,440 per year. Continue reading Salary Basis for FLSA Exemptions Raised Dramatically

How Texas Employers Should Respond to Marriage Decision

Today’s U.S. Supreme Court decision that legalized same-sex marriage in all 50 states has Texas employers scrambling for a correct response. Businesses need to consider employee benefits, leaves of absence and many other Texas workplace policies to address the change in the definition of spouse.

Unlike some changes in the law, this one will not wait for Texas employers to catch up. Travis County had already issued 54 licenses to same sex couples by noon today. The Austin American-Statesman reported that clerks in Dallas, Bexar, Tarrant, Midland, McLennan and El Paso counties also began issuing licenses to same-sex couples and judges have already started marrying same-sex couples today in Texas.

Here are some of the employment law considerations that businesses need to address immediately: Continue reading How Texas Employers Should Respond to Marriage Decision

Affordable Care Act is the Law

The United States Supreme Court confirmed today that the Affordable Care Act (“ACA”) is the law and is here to stay. In deciding King v. Burwell, the Court for the second time upheld the health care law that was passed by Congress in 2010.

What does King v. Burwell mean for employers? Not much. As an employer, you just have to keep soldiering on to make the ACA work in your business, just as you have been doing for the last several years.

Of course, how big an issue the ACA is to you as an employer depends on the size of your workplace. To apply the ACA, you as the employer have to count your employees and determine how many “full-time equivalents” that you employ. Under the ACA, a full-time employee is one who is employed an average of at least 30 hours per week.

The Affordable Care Act’s mandate, requiring employers to provide health insurance to employees or face a penalty, does not apply to employers with less than the equivalent of 50 full-time employees. This is the small business exemption to the mandate and means that small businesses can choose whether to provide health insurance at all.

If you have between 50 and 99 full-time equivalent employees, you have been getting ready for the Affordable Care Act this year, since 2016 is the year that you are required to provide your full-time employees with affordable health insurance coverage or pay a potentially substantial penalty.  You are probably still working out the kinks in your system of counting hours, determining who is full-time, setting measurement periods. Next year you will be getting employees signed up and answering endless questions from your employees about their coverage.

If you have 100 or more full-time equivalent employees, then 2015 is the first year you have been required to  provide health insurance to your employees or pay a penalty. The penalty is imposed if at least one of your full-time employees receives a subsidy to purchase coverage in the individual Marketplace. So the subsidies that the Supreme Court upheld in King v. Burwell today will determine if you as an employer get penalized.

But at least you have a little margin for error this year if you employ 100 or more people. In 2015, you only have to offer coverage to at least 70 percent of full-time employees, rather than 95 percent which will begin in 2016.

There are other changes on the horizon for you as an employer in dealing with the ACA. Continue reading Affordable Care Act is the Law

Advertising Job Openings Without Discriminating

As an employer, your work to prevent an employment discrimination lawsuit starts from the beginning: in the way you advertise the job opening. According to the Equal Employment Opportunity Commission (EEOC), the number of charges filed by employees and applicants alleging discriminatory advertising rose from 49 in 2013 to 121 in 2014.  The vast majority of the claims filed in 2014 (111) were for advertisement discrimination against older job applicants, but may also involve gender discrimination, disability discrimination or other discriminatory conduct.

Recently, the popular restaurant chain Ruby Tuesday settled a claim with the EEOC for $100,000.  Two male employees sued the restaurant after an internal job posting was advertised specifying “only females would be considered” for temporary summer positions in a Utah resort town.  Because the summer resort employees would be residing together for several weeks in company-housing, the restaurant reasoned that it would be best if all employees were of the same gender.

While violations such as a gender-specific job announcement may seem obvious in hindsight, there are many subtle ways discrimination is included in employers’ advertising.  Have you ever seen an ad in the paper seeking “recent college graduates”?  You might consider this to mean that a college degree is required for the job.  But the EEOC could look at this as way of screening out older applicants in violation of the Age Discrimination in Employment Act (ADEA).  The ADEA and its Texas equivalent statute make it illegal for employers (with 15 or more employees) to discriminate against workers age 40 and over.

To avoid problems such as the one Ruby Tuesday faced, carefully consider the wording of your advertising, most specifically, your job postings.  Continue reading Advertising Job Openings Without Discriminating

Lubbock Business Settles Disability Discrimination Claim

A Lubbock auto dealer was accused of disability discrimination and recently settled the claim for $250,000. The Equal Employment Opportunity Commission (“EEOC”) sued Benny Boyd Chevrolet-Chrysler-Dodge-Jeep, Ltd., d/b/a Benny Boyd Lubbock, and Boyd-Lamesa Management, L.C., for discriminating against the dealership manager with multiple sclerosis. Click here for more information.

The manager was hired before his diagnosis with promises of future ownership in the dealership. He managed the dealership successfully for six months before he revealed his disability, according to the EEOC. He was then faced with comments like, “What’s wrong with you? Are you a cripple?” He was also denied the partnership and quit, claiming he was forced to resign.

I am always concerned when my Texas Panhandle business clients don’t believe that employment lawsuits like this can happen to them. I’m sure this Lubbock dealer felt the same way. But there were there were approximately 10,000 charges of discrimination filed in Texas with the EEOC and the Civil Rights division of the Texas Workforce Commission during fiscal year 2014. Around 27% of those charges claimed disability discrimination. It can and does happen to employers here, and some of the cases, like the one in Lubbock, can be very costly.

What can you do to prevent or at least prevail in such suits?  Continue reading Lubbock Business Settles Disability Discrimination Claim

Employee Free Speech on Facebook

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. http://www.nlrb.gov/rights-we-protect/protected-concerted-activity

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. http://www.nlrb.gov/reports-guidance/general-counsel-memos

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies: Continue reading Employee Free Speech on Facebook

Accommodating Pregnant Employees

Employers often face the question of how to reasonably accommodate pregnant employees. Many of my male (and some of my female) clients panic when they discover that one of their employees is pregnant. They fear that the pregnant employee won’t be able to do the work, that the employee will have some kind of workplace injury or that the employee won’t return to work after maternity leave.

Most employers walk on eggshells around their pregnant employees, even afraid to ask when the baby is due so that the employer can plan for work to get done while the employee is out on maternity leave. Overall, employers are just scared that they will inadvertently do something that will get them sued for pregnancy discrimination.

Their fear is not unfounded. The Equal Employment Opportunity Commission and the courts are taking a careful look at pregnancy discrimination. They want employers to reasonably accommodate the pregnant employee just as you would a disabled employee. You would do this anyway if the expectant mother had any pregnancy complications, such as gestational diabetes.

The only change is that now you would be wise to accommodate an employee who is having a normal, healthy pregnancy, if the employee asks for a reasonable accommodation.

A recent U.S. Supreme Court case held that a plaintiff can establish an initial case of pregnancy discrimination by showing that she is pregnant, that she sought some sort of reasonable accommodation for her condition, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

In other words, if you let other employees work light duty jobs from time to time, you need to allow your pregnant employee the same privilege. If you would allow an employee who has severe back problems to skip the duty of lifting heavy boxes, do the same for a pregnant employee is she asks for that accommodation. If standing at a cash register all day is hard on an expectant mother, offer a stool for her to sit on, just as you would an elderly employee.

Don’t be patronizing and assume that a pregnant employee can’t work or needs an accommodation. Allow her the dignity of working without help if she chooses. But if an accommodation is requested, you should engage the employee in a discussion (“the interactive process”) to determine what help she needs. You can decide together if her request is reasonable or if there are other equally effective options. Work willingly with your employee to help her out for a few months and she will most likely be glad to return after her maternity leave to be a very productive employee.

Here are a few other quick tips for dealing with pregnant employees: Continue reading Accommodating Pregnant Employees

Texas Employers Face Open Carry Law

It appears almost certain that the Texas legislature will pass and Governor Abbott will sign a bill allowing the open carrying of handguns in Texas. The law will go into effect by 2016. Visible handguns in belt or shoulder holsters can be carried by anyone currently licensed to carry a concealed handgun in Texas. There are 841,500 Texans, or about 5% of Texans 21 or older, who are current concealed handgun license holders.

Openly carrying a handgun will be prohibited in areas where concealed carrying is now banned: schools, bars, sporting events and businesses that have posted signs banning handguns on the premises.

Employers in Texas need to decide now whether employees will be allowed to openly carry a handgun in the workplace. When concealed carrying was the rule, employers could take a sort of “don’t ask, don’t tell” stance on guns in the workplace. Now decisions have to be made because the issue will be so evident.

Texas employers may completely ban all guns on the premises, allow customers to openly carry but choose to prohibit employees from doing so, or also allow licensed employees to openly carry in the workplace. Considerations include deciding how your particular clientele and your workforce will feel about guns. Continue reading Texas Employers Face Open Carry Law

The DOL’s Database of Investigations on Compensation

In a recently posted database, the federal Department of Labor (“DOL”) has allowed the public to see the companies who have been investigated for various violations of the laws the DOL enforces, including overtime violations, minimum wage violations and independent contractor violations.

I quickly scanned the records just for 2014-2015. During that time, more than 35 Amarillo businesses were investigated. Some employed just three or four people. Others employed more than 100. But there are some visible trends in the local DOL investigators’ handiwork.

Local preschools were put under the microscope because they often pay their teachers on salary rather than hourly, resulting in frequent Fair Labor Standards Act violations. Amarillo and Canyon hotels are a favorite target, often because they pay housekeeping personnel by the room, rather than by the hour. Amarillo restaurants were repeated targets because of common violations of the tip wage credit, which allows restaurants to include tips in the calculation of whether their employees are making minimum wage or because the restaurant paid employees on salary. Local construction companies, heating and air companies and plumbers showed up on the investigation list probably because their blue-collar workers were not paid overtime correctly, weren’t paid for their travel time, or were put on salary as supervisors when they regularly  performed labor that should have been paid hourly.

Other industries that were affected by the DOL’s local efforts in the last year included home healthcare, landscaping, retail, trucking, medical, automobile service and online companies.

What can you do in your business to assure that you are paying your employees correctly? This is a very complicated area of the law, but here are some quick generalities: Continue reading The DOL’s Database of Investigations on Compensation

Workplace Romance

Since it is Valentine’s Week and I am an employment lawyer, my thoughts naturally turn to all of the ways that workplace romances can disrupt your business.

Don’t think it isn’t happening at your company. Of the almost 1,900 employees who responded to a 2014 office romance survey by Match.com, 56% of workers said they have been in a workplace relationship. Can you say “hostile environment”? It gets worse: of those who dated a co-worker last year, 20% of women and 9% of men said it involved dating a supervisor. Can you say “quid pro quo sexual harassment”?

Workplace romances are fraught with sexual harassment and retaliation risks. Many times the relationship creates opportunities for gossip, name-calling, sexual jokes and scorn. If the couple breaks up, the cold shoulder, the back-biting and the anger can easily be twisted into a claim that the workplace has become a hostile environment based on gender.

If a boss dates a subordinate and then the relationship ends, it gets even messier. The claim can become quid pro quo (loosely translated “this for that”), meaning that the subordinate may say that he or she was passed over for a raise or promotion or even fired because the boss isn’t getting what the boss wants. Quid pro quo cases involving a tangible job detriment, such as a demotion, are the worst kinds of sexual harassment cases for an employer to try to defend.

Many employers are hesitant to get involved in their workers’ “private” lives. If it is developing in your workplace, it is hardly private. If you have at least 15 employees (and are therefore subject to sexual harassment laws), you may need a written policy to establish clear boundaries regarding workplace romances. The policy can include: Continue reading Workplace Romance