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August 10, 2021 |
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In Travers v. Federal Express Corp., the Third Circuit Court of Appeal said that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to pay employees for military leave if they also pay employees for other similar leaves. USERRA entitles employees to “other rights and benefits” afforded to similarly situated employees. Although “other rights and benefits” is defined as including “wages or salary for work performed,” the court stated that the definition is not restricted by the examples provided and pay for leave is not excluded. In fact, an “other” benefit could be almost anything, for example, health insurance, a bonus, or a gym membership.
There, the employee was a Navy reservist taking short-term military leave, but was not paid given that the employer’s policy was to provide unpaid military leave. The employer generally did not provide paid leave except for specific types of leave like paid sick leave and jury duty. Rather than focus on whether the types of leave were comparable, the court compared what benefit those on military leave versus non-military leave received. Moreover, the court rejected a comparison of the types of benefits provided given that USERRA did not make a specific distinction, rather referring to benefits “generally provided.”
Although USERRA does not in and of itself require paid leave, employers may need to pay for military leave if they provide other types of paid leave, such as for jury duty, sick leave, and other absences. Employers should review their leave policies with legal counsel for compliance.
Action Items
- Have leave policies reviewed with legal counsel for compliance.
- 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.
© 2021 ManagEase
OSHA Update Reflecting CDC COVID-19 Guidance
/in HR Alerts /by ManagEaseAPPLIES TO
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August 13, 2021
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The Occupational Safety and Health Administration (OSHA) recently updated its COVID-19 guidance to mirror those put forth by the U.S. Centers for Disease Control (CDC). It also reorganized Appendix recommendations for certain manufacturing, food, and agricultural processing industries. Generally, the guidance puts forth 11 steps of multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. The steps are summarized as follows.
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Third Circuit: Military Service Leave Must Be Treated the Same as Other Leaves
/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with DE, NJ, and PA Employees
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August 10, 2021
QUESTIONS?
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(888) 378-2456
In Travers v. Federal Express Corp., the Third Circuit Court of Appeal said that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to pay employees for military leave if they also pay employees for other similar leaves. USERRA entitles employees to “other rights and benefits” afforded to similarly situated employees. Although “other rights and benefits” is defined as including “wages or salary for work performed,” the court stated that the definition is not restricted by the examples provided and pay for leave is not excluded. In fact, an “other” benefit could be almost anything, for example, health insurance, a bonus, or a gym membership.
There, the employee was a Navy reservist taking short-term military leave, but was not paid given that the employer’s policy was to provide unpaid military leave. The employer generally did not provide paid leave except for specific types of leave like paid sick leave and jury duty. Rather than focus on whether the types of leave were comparable, the court compared what benefit those on military leave versus non-military leave received. Moreover, the court rejected a comparison of the types of benefits provided given that USERRA did not make a specific distinction, rather referring to benefits “generally provided.”
Although USERRA does not in and of itself require paid leave, employers may need to pay for military leave if they provide other types of paid leave, such as for jury duty, sick leave, and other absences. Employers should review their leave policies with legal counsel for compliance.
Action Items
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.
© 2021 ManagEase
IMPORTANT: California: Ban on Mandatory Arbitration Agreements Reinstated?
/in HR Alerts /by ManagEaseAPPLIES TO
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September 15, 2021
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In 2020, AB 51 was set to prohibit employers from requiring mandatory arbitration agreements with employees as a condition of employment. Soon after enactment, a federal district court issued a preliminary injunction preventing AB 51 from going into effect, specifically for arbitration agreements subject to the Federal Arbitration Act (FAA). In Chamber of Commerce v. Bonta, the Ninth Circuit Court of Appeal recently vacated the preliminary injunction against AB 51.
As a longstanding rule, the FAA requires arbitration agreements to be treated the same as any other contract, and that valid consensual arbitration agreements should be enforced. The Ninth Circuit framed AB 51 as a pre-agreement condition that “takes place prior to the existence” of the agreement to ensure that the arbitration agreement is consensual. Because AB 51 specifically provides that it does not invalidate an arbitration agreement that is “otherwise enforceable” under the FAA, the court stated that AB 51 does not make executed mandatory arbitration agreements unenforceable.
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California: Potential Roadblock for Background Checks
/in HR Alerts /by ManagEaseAPPLIES TO
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May 26, 2021
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In All of Us or None v. Hamrick, the California Court of Appeal stated that the electronic court criminal records cannot be searchable by protected personal information. California Rules of Court, Rule 2.507(c) requires that courts exclude “date of birth” and “driver’s license number” from a court’s electronic court index. The court said that rule was violated by allowing users of the Riverside Superior Court’s public website to search the court’s electronic index using a date of birth and driver’s license number. Specifically, even though the public is providing the personally identifiable information to search the electronic court index, the public is able to verify that a particular person has a criminal record, thereby failing to exclude the protected information from the index. Moreover, the purpose of the rule is to protect the privacy of those involved in criminal proceedings.
This case is important given that background check companies rely on searching court indexes for criminal background checks. The federal Fair Credit Reporting Act (FCRA) and other similar laws prohibit background check companies from attributing criminal records to an individual based only on a name match. Rather, background check companies use other identifying information to make data matches, such as date of birth. Without access to this information in electronic court indexes, background check companies may receive incomplete data on an individual. Employers should consult with background check providers to verify current procedures and search results.
Action Items
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.
© 2021 ManagEase
Illinois: Equal Pay Certificate Requirements Amended
/in HR Alerts /by ManagEaseAPPLIES TO
Employers with IL Employees who file EEO-1 Reports
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June 25, 2021
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Earlier this year, Illinois passed SB 1480, a bill that amended the Illinois Equal Pay Act to require employers who currently file federal EEO-1 reports to also submit similar pay and demographic information to the state. Employers of 100 or more employees are required to obtain a pay registration certificate from the Illinois Department of Labor, with reporting to take place every two years.
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Illinois: Expanded Leave Protections for Victims of Violent Crimes
/in HR Alerts /by ManagEaseAPPLIES TO
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August 20, 2021
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The Illinois Victim’s Economic Security and Safety Act (VESSA) has been amended to offer greater protections for victims of crime, effective August 20, 2021. VESSA provides up to 12 workweeks of job-protected leave during any 12-month period to address domestic, sexual, or gender violence. Key amendments include:
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Massachusetts: All Invoice “Service Charges” Must be Paid to Employees
/in HR Alerts /by ManagEaseAPPLIES TO
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August 23, 2021
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In Hovagimian v. Concert Blue Hill, LLC, the Massachusetts Supreme Judicial Court stated that the Massachusetts Tips Act requires employers to pay service employees for any “service charge” listed on a customer invoice, even if the service charge is intended as an administrative fee. The Tips Act specifically refers to a “service charge or tip” that must be paid to service employees. Employers are permitted to charge customers with administrative fees but must label the charge as such to avoid confusion with a tip or service charge intended for service employees.
There, a banquet services contract specifically identified a gratuity charge and an overhead charge that was not provided to service employees. However, the customer invoice labeled the overhead charge as a “service” charge. Regardless of what the parties’ intent was as identified in the contract, the Tips Act specifically governs invoices, and the invoice there was not compliant. The court construed the employer’s “carelessness” against it, even though it meant an unintended windfall for employees. This case should be a clear warning to service providers to ensure invoices accurately identify charges.
Action Items
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.
© 2021 ManagEase
Massachusetts: Domestic Violence Protections Given Broad Interpretation
/in HR Alerts /by ManagEaseAPPLIES TO
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August 25, 2021
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In Osborne-Trussell v. The Children’s Hospital Corp., the Massachusetts Supreme Judicial Court stated that the Domestic Violence and Abuse Leave Act (DVLA) protects more than “current” employees and does not require a specific leave or accommodation request for its statutory protections to be implicated.
There, a nurse had a restraining order against an abuser. The nurse received and accepted a conditional offer of employment from a hospital. The abuser then posted threats and false statements on social media and tagged the hospital. The nurse informed the hospital that she had a protective order in place and was working with law enforcement to enforce it. The hospital subsequently rescinded the offer of employment.
The Court stated that the DVLA was not limited to current employees given that its purpose, in part, was to protect abused individuals from adverse consequences at work. Regardless, the nurse made sufficient allegations that she was in an employment relationship with the hospital even though she had not started her orientation. Additionally, the court said that the nurse was subject to the DVLA’s protections upon giving advance notice of a potential leave request by having a protective order, the abuser’s violation of the order, and her enforcement efforts. Akin to a pregnant individual giving notice of a current pregnancy but not yet needing leave, the nurse did not need to specifically request leave to benefit from the DVLA’s protections.
Action Items
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.
© 2021 ManagEase
Missouri: New Domestic Violence Leave in Effect
/in HR Alerts /by ManagEaseAPPLIES TO
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August 28, 2021
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Under the Victims Economic Safety and Security Act (VESSA), employers with at least 20 employees must now provide unpaid leave for employees who are victims, or who have family or household members who are victims, of domestic or sexual violence. The amount of leave depends on the number of employees: employers with 20-49 employees must provide one week; employers with 50+ employees must provide two weeks.
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New Jersey: Physical Examination with Drug Testing Put on Hold
/in HR Alerts /by ManagEaseAPPLIES TO
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August 19, 2021
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The New Jersey Cannabis Commission published its Initial Rules for Personal Use of Cannabis, addressing issues for adult use of recreational cannabis. The Initial Rules address at least one employer concern regarding drug testing.
Previously, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) included a provision that required any employer-sponsored drug testing of employees or applicants to include a “physical examination.” The physical examination must be conducted by a person certified to recognize drug impairment, with the New Jersey Cannabis Commission developing a certification program to train and certify individuals to conduct such evaluations.
The Initial Rules have put the physical examination component of employer drug testing on hold. The Rules indicate that until the Commission has developed standards for the certification program, no physical evaluation of an employee undergoing drug testing will be required.
Action Items
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.
© 2021 ManagEase