New Guidance From OSHA on Post-Incident Drug Testing and Safety Incentive Programs

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All Employers

EFFECTIVE

October 11, 2018

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On October 11, 2018, OSHA issued a memorandum of interpretation clarifying its position on workplace safety incentive programs and post-incident drug testing. Originally, OSHA issued a Final Rule on May 11, 2016 that sought to increase anti-retaliation protections by requiring employers to inform employees of their right to report work-related injuries and illness without fear of adverse employment actions.  The Rule stated that the existing requirement that an employer’s procedure for reporting work-related injury or illness must be (1) reasonably laid out in a manner that does not discourage/deter employees from reporting; and (2) incorporates existing statutory whistleblower protections. Moreover, “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” (Emphasis added.)

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Second Circuit Refines the Definition of the Outside Salesperson Exemption

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All Employers with CT, NY, and VT Employees

EFFECTIVE

September 19, 2018

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In Flood v. Just Energy Mktg. Corp., the Second Circuit Court of Appeal recently addressed what qualifies an employee for the outside sales exemption under the Fair Labor Standards Act (FLSA). Generally, the outside sales exemption is based on an employee’s primary duties – making sales or obtaining orders for contracts or services, while customarily and regularly engaged away from the employer’s place of business.

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Second Circuit Clarifies Damages and Shareholder Liability under the FLSA

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All Employers with CT, NY, VT Employees

EFFECTIVE

October 1, 2018

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In Tapia v. BLCH 3rd Ave. LLC, the Second Circuit Court of Appeal clarified that there is no double recovery of liquidated damages under the FLSA where damages are also awarded under state law. Additionally, the court reviewed direct shareholder liability under the FLSA by looking at the operational control of the alleged employer, including whether the individual has the power to: (1) hire and fire employees, (2) supervise and control employee work schedules or conditions of employment, (3) determine the rate and method of payment, and (4) maintain employment records.

There, the court found evidence that the shareholder only partially satisfied the fourth criteria of operational control. Ultimately, the court stated that status as a significant shareholder was not alone enough to show that the employer exercised or possessed financial control over the company to be held personally liable.

Action Items

  1. Review corporate structures for potential liability.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Eleventh Circuit: HR Employee Assisting Another Employee to File a Claim is Protected Activity Under Title VII

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All Employers with AL, FL, and GA Employees

EFFECTIVE

September 24, 2018

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In Gogel v. Kia Motors Mfg. of Georgia, Inc. the U.S. Court of Appeal for the Eleventh Circuit recently stated that a human resources employee’s actions in assisting another employee to file discrimination charges “in a reasonable manner” were protected activity under Title VII of the Civil Rights Act of 1964.

Andrea Gogel, an employee in Kia Motors Manufacturing of Georgia, Inc.’s HR department, claimed to have personally experienced and heard a myriad of complaints from employees who felt discriminated against based on their gender and national origin. Gogel attempted to use her employer’s internal reporting process for years without success. It was at this stage that she provided a co-worker with assistance in contacting an attorney to assist her with filing an EEOC charge. This action would later lead to her termination from Kia Motors. Gogel sued Kia Motors for gender and national origin discrimination and retaliation under Title VII. Although a district court granted summary judgment in favor of Kia Motors, Gogel appealed to the Eleventh Circuit.

The Eleventh Circuit stated that when a human resource employee helps another employee file a discrimination charge in a reasonable manner, the human resource employee is entitled to protection under Title VII. To determine reasonableness, the court uses a case-by-case balancing test that reviews the manner in which the employee opposes the policy. There, the court stated that Gogel’s attempt to use the internal reporting process prior to assisting her co-worker with filing a discrimination charge with the EEOC was a reasonable display of opposition to an allegedly discriminatory practice. Employers are well advised to be mindful of any employee expressing their hostility to a purportedly discriminatory employment practice, as they may be protected from retaliation under Title VII.

Action Items

  1. Provide your management team with harassment, discrimination, and retaliation prevention training.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Eleventh Circuit: OSHA Must Have Probable Cause to Obtain an Inspection Warrant

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All Employers with AL, FL, and GA Employees

EFFECTIVE

October 9, 2018

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In United States v. Mar-Jac Poultry, Inc., the Eleventh Circuit reviewed an inspection warrant sought by OSHA after a poultry facility declined a full-site inspection. OSHA was present at the facility following an employee injury, and was permitted to inspect the area related to the accident. When the employer declined to allow OSHA to expand its search to the full facility, it sought to obtain an inspection warrant.

To obtain an inspection warrant, OSHA must demonstrate probable cause, which “may consist of either (1) a showing of specific evidence of an existing violation, or (2) a showing that ‘reasonable legislative or administrative standards for conducting an … inspection are satisfied with respect to a particular [establishment].’” OSHA’s required probable cause is different than what is required in a criminal matter. The court noted “the evidence of a specific violation required to establish administrative probable cause … must at least show that the proposed inspection is based upon a reasonable belief that a violation has been or is being committed and not upon a desire to harass the target of the inspection.”

There, OSHA relied on past employer OSHA logs as evidence that a full-scale inspection was warranted. However, the court stated that while OSHA logs may indicate “hazards”, it does not necessarily show “violations”, which is what is required in the standard of proof. Moreover, the content in this employer’s logs did not constitute enough evidence to indicate OSHA violations, and OSHA’s investigation warrant was quashed. However, the court noted that there may be circumstances where the content of an employer’s OSHA logs, a specific violation plus historical violations, or a specific complaint that permeates the workplace may be sufficient evidence of violations justifying issuing an inspection warrant.

Action Items

  1. Review OSHA inspection procedures with legal counsel.
  2. Have OSHA logs reviewed for compliance and exposure.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

California: New Laws Require Employee Training to Combat Human Trafficking

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All Employers with CA Employees in the Hotel/
Motel and Light Rail/Bus Industries

EFFECTIVE

July 1, 2019

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(888) 378-2456

Governor Jerry Brown recently approved SB 970 and AB 2034, two new laws that require employers in different industries to provide employee education and resources designed to combat human trafficking.

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California: “Other Persons” Can Be Personally Liable for Civil Penalties for Wage & Hour Violations

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All Employers with CA Employees

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September 28, 2018

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In Atempa v. Pedrazzani, a California Court of Appeal stated that individual owners and officers of a Company can be held personally liable for wage and hour violations. Specifically, Labor Code Section 558 and 1197.1 state both the employer and any “other person” who cause wage and hour violations are subject to civil penalties. The lawsuit dated back to 2013 when two former employees sued their employer and the business owner for a variety of wage and hour violations, including unpaid overtime and minimum wage violations.

The court ultimately stated the Company and owner were each liable for civil penalties based on those wage and hour violations. The court reasoned that there did not need to be an “allegation or finding of either an alter ego relationship between the individual officer or agent and the corporate employer or acts by the individual officer or agent outside the scope of the agency for the corporate employer.” “Neither of these statutes mentions the business structure of the employer, the benefits or protections of the corporate form, or any potential reason or basis for disregarding the corporate form.”  The owner’s participation in the payment of wages in violation of the overtime pay and minimum wage laws were enough to qualify him as any “other person.”

The most important lesson from this case is that wage and hour violations expose an employer to civil penalties while simultaneously exposing individuals such as owners, officers, directors, or managers to personal liability for mishandled wage and hour compliance. Moreover, the court stated that private plaintiffs may pursue and collect these penalties for “aggrieved employees” from such “other persons” on behalf of the state of California through the Private Attorneys’ General Act (PAGA).

Action Items

  1. Have your management team trained on wage and hour compliance.
  2. Have an audit performed of your internal wage and hour practices.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Colorado: Court of Appeal Broadens Arbitration Agreements and Expands Duty-of-Loyalty Claims

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All Employers with CO Employees

EFFECTIVE

September 20, 2018

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In Digital Landscape Inc. v. Media Kings LLC, the Colorado Court of Appeal reviewed the scope of an arbitration agreement’s reach. Specifically, the agreement stated all claims “arising under” the contract at issue would be arbitrated. The court broadly interpreted the wording, stating that “arising under” had the same meaning as “relating to,” because the phrase “arising under” implies a broad scope consistent with both federal and Colorado policies favoring arbitration.

There, Digital Landscape claimed breach of contract for Media Kings’ failure to pay under the contract, and Media Kings claimed it was damaged when Digital Landscape took over one of Media Kings’ clients that Digital was supposed to be servicing as an agent of Media; the latter was disputed by Digital as being covered by the agreement to arbitrate. The court stated that Media’s claim was covered by the “arising under” language in the arbitration agreement; moreover, the parties could have drafted the arbitration clause to include limiting language or to explicitly exclude particular types of claims from its scope. There was no indication that the “arising under” was meant to limit the scope of arbitrated claims.

Additionally, the court interpreted Media’s claim against Digital to include an unpled duty-of-loyalty claim, because the description of Media’s claim was sufficient to be interpreted as such. Although Digital was not an employee of Media, it was found by the arbitrator to be an agent of Media as an independent contractor. This opens new avenues of protections for employers who may now be able to recover additional damages, such as disgorgement, lost assets, or lost profits, from former employees and independent contractors.

Action Items

  1. Have arbitration agreements reviewed by legal counsel for consistency with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Massachusetts: Court Provides Guidance on Choice of Law and Forum Selection Clauses in Restrictive Covenants

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All Employers with non-MA Employees

EFFECTIVE

September 7, 2018

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(888) 378-2456

In Oxford Global Resources, LLC v. Hernandez, the Massachusetts Supreme Judicial Court reviewed an employee’s confidentiality, non-solicitation, and non-compete agreement providing for the application of Massachusetts law, which is where the employer was headquartered, as well as a forum selection clause for Massachusetts. The employee left the employer to work for a competitor and allegedly violated the agreement. The employer filed suit for breach of the employee’s agreement in Massachusetts.

However, the employee at issue interviewed, hired, and worked only in California. Moreover, California prohibits non-compete agreements. The Court stated that choice of law provisions are only enforced in Massachusetts if they do not violate public policy. Under the circumstances, California substantive law applied over Massachusetts choice of law principles because of California’s policy favoring open competition and employee mobility. Additionally, the case was more properly heard in California because “everything relevant to [the] case happened in California,” “all relevant witnesses [were] located in California,” and the courts of California had an interest in seeing that California law was correctly applied to the dispute.

Employers who have out-of-state employees will need to be cautious about the restrictive covenants and choice of law provisions they have them sign.

Action Items

  1. Have restrictive covenants reviewed to ensure that the law governing the agreement aligns with where the employee is working.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Westchester County, NY Enacts New Sick Leave Law

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All Employers with Employees in Westchester County

EFFECTIVE

April 10, 2019

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On October 12, 2018, Westchester County adopted the Earned Sick Leave Law (ESLL) requiring private employers with 5 or more employees (or one or more domestic workers) to provide paid sick leave, and employers with 4 or less employees to provide unpaid sick leave. Key portions of the ESLL are described as follows: