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EFFECTIVE
May 23, 2022 |
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In Naranjo v. Spectrum Security Services, Inc., the California Supreme Court stated that meal and rest premiums can be the basis for waiting time penalties and inaccurate wage statements. Meal and rest premiums are required to be paid when nonexempt employees do not take the statutorily required meal or rest periods. The Court stated that meal and rest premiums are wages, and therefore subject to derivative wage and hour claims.
There, an employee claimed the employer failed to provide the required meal and rest periods, subjecting the employer to pay meal and rest premiums. As part of his claim, the employee sought waiting time penalties for failure to pay the premiums and wage statement violations for failing to properly identify wages earned.
The Court reasoned that the premiums are intended to provide compensation for the missed meal or rest period as a legal remedy, and wages for the work the employee performed during the meal or rest period. Further, the Court confirmed prior precedent that wage statements must include wages earned, not just wages actually paid. Having identified the premiums as wages, the Court then linked payment deficiencies to remedies for failure to pay or properly document the earnings.
Notably, the Court reinforced its prior ruling in Murphy v. Kenneth Cole Productions, Inc., stating that meal and rest premiums are akin to overtime premiums. The portion of Murphy that excludes meal and rest premiums from the regular rate of pay seemingly remains intact. Employers should review this ruling with legal counsel for guidance on how it may impact their business.
Action Items
- Separately list meal and rest premiums on wage statements.
- Consider adding an acknowledgment that employees have received premium pay.
- Evaluate timekeeping and payroll practices to ensure meal and rest premiums are accounted for.
- 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. © 2022 ManagEase
Supreme Court Puts Abortion in the Employment Spotlight
/in HR Alerts /by ManagEaseAPPLIES TO
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June 24, 2022
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In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court relegated abortion to the control of individual states. As a result, states vary widely on whether or not abortion is legal and to what extent. Employers and employees are now asking how this ruling impacts them and whether they need to do anything about it. Like the issue itself, the implications are complex.
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Employers Exposed Where ADA and AI Intersect
/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with 15+ Employees
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May 12, 2022
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The Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) each recently published guidance on the use of artificial intelligence (AI) in managing job applicants and employees. The EEOC enforces disability discrimination laws with respect to employers in the private sector and the federal government. The DOJ enforces disability discrimination laws with respect to state and local government employers. The obligation to avoid disability discrimination in employment applies to both public and private employers.
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DOL Issues FAQs on Mental Health Conditions and FMLA Leave
/in HR Alerts /by ManagEaseAPPLIES TO
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May 2022
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The Department of Labor (DOL) recently released a set of FAQs on when employees may take Family and Medical Leave Act (FMLA) leave for a mental health condition. As a reminder, the FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during a 12-month period for qualifying reasons. One of the stated reasons is an employee or their family member’s “serious health condition,” which is defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider.
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Employer’s Delayed Request for Arbitration Does Not Require Showing of Prejudice
/in HR Alerts /by ManagEaseAPPLIES TO
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May 23, 2022
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Employer arbitration agreements are fairly common in today’s employment relationships with employees. In most federal circuit courts, if an employer delays enforcing an arbitration agreement when a claim is made, the arbitration agreement may not be enforced if the delay harmed the employee. In others, this requirement is not present. In Morgan v. Sundance, Inc., the U.S. Supreme Court sought to resolve the split among the circuit courts. Specifically, the Court stated that arbitration agreements must be interpreted like any other contract, and federal courts cannot create arbitration-specific rules of interpretation based on the FAA’s policy favoring arbitration.
There, an employee brought a class action wage and hour claim in federal court, despite having signed an arbitration agreement at the commencement of employment. The employer defended itself in litigation and waited eight months before seeking to enforce the arbitration agreement. The appellate court evaluated the claim based on the presence of harm to the employee and found none; the employee appealed.
Generally, there is no specific harm requirement under federal law addressing waiver. Courts historically implemented the requirement of harm based on the FAA’s policy favoring arbitration. Ultimately, the Supreme Court said that no such requirement is allowed. Courts cannot create new rules to favor arbitration over litigation. “The federal policy [under the FAA] is about treating arbitration contracts like all others, not about fostering arbitration.”
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. © 2022 ManagEase
Temporary Extension for Expired EAD Documents
/in HR Alerts /by ManagEaseAPPLIES TO
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May 4, 2022
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The U.S. Department of Homeland Security (DHS) recently issued a Temporary Final Rule extending the time in which an employment authorization document (EAD) for certain renewal applicants (listed on the USCIS website) is automatically extended pending renewal. Previously, EADs that expired were automatically extended for 180 days pending an application for renewal. Because of the ongoing processing delays, DHS increased the automatic extension to 540 days.
The 540-day extension applies when:
An EAD that has expired on its face is considered unexpired when combined with a Notice of Action (Form I-797C), showing that the applicable requirements have been met.
The 540-day extension also applies to EADs with a pending renewal application filed before May 4, 2022, regardless of whether the previous 180-day automatic extension expired. If the renewal application is filed after October 26, 2023, the normal 180-day automatic extension period will apply. Note that DHS may still terminate any EAD or extension period as permitted by law.
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. © 2022 ManagEase
OSHA Issues New Program for Employers About Dangers of Extreme Heat in the Workplace
/in HR Alerts /by ManagEaseAPPLIES TO
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April 12, 2022
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On April 12, 2022, OSHA released a National Emphasis Program (NEP) on heat illness and injuries for both indoor and outdoor employees. OSHA NEPs are temporary programs that concentrate OSHA resources on specific workplace injuries and illnesses. This new NEP is effective until April 8, 2025, cancellation, or extension by OSHA.
When a new NEP is issued, employers should expect greater scrutiny on their workplace practices that combat the injury or illness on which the NEP is focused. The current NEP is designed to prevent heat-related injuries and illnesses, such as heat stroke, heat exhaustion, and falls or cuts that occur during or after heat exposure. Employers with outdoor workspaces in particularly hot areas of the country and employers with indoor workspaces near radiant heat sources, such as iron and steal mills, should expect to receive most of OSHA’s focus while the NEP is in place.
The NEP states how employers will be selected for inspections, including:
While the NEP explains OSHA’s new focus on heat-related injuries and illnesses, it unfortunately does not issue any standards employers must meet. To comply, employers must continue to meet OSHA’s General Duty Clause, which requires employers to provide a work environment free from recognized hazards.
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. © 2022 ManagEase
Third Circuit: Religious Accommodations Must Entirely Resolve Conflict with Work Requirements
/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with Employees in DE, NJ, PA, and Virgin Islands
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May 25, 2022
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In Groff v. DeJoy, the Third Circuit Court of Appeals stated that religious accommodations under Title VII of the Civil Rights Act of 1964 must eliminate the conflict between an employee’s religious beliefs and work requirements. There, a U.S. Postal Service employee requested to be exempt from Sunday work to observe the Sabbath. Although the employee was allowed to swap shifts with co-workers, he was disciplined when he was unable to obtain coverage and did not show up for work.
The circuit court stated that merely allowing the employee to swap schedules with co-workers was not a statutory accommodation because it did not entirely eliminate the work conflict with the employee’s religious beliefs. Despite this interpretation, the employer demonstrated that the entire elimination of the conflict constituted an undue hardship.
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. © 2022 ManagEase
Alabama: FMLA Employers Must Provide Family Leave Under State Law
/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with Alabama Employees covered by FMLA
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July 1, 2022
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Alabama recently adopted the Adoption Promotion Act, which requires unpaid leaves of absence for birth and adoptive parents. Employers covered by the federal Family and Medical Leave Act are required to comply with the Act. Eligible employees are entitled to 12 weeks of unpaid leave, which runs concurrently with FMLA leave. The Act permits leave for:
If an employee has already used their allotted FMLA leave, employers are not obligated to provide additional leave under the Act. Intermittent leave is only permitted upon agreement between the employer and employee. Requests for additional family leave due to the adoption of an ill or disabled child must be considered on the same basis as comparable cases of complications in childbirth.
Employers who provide paid leave to employees for birth and care of a child must also provide the lesser of either equivalent paid leave or two weeks paid leave to employees for care of a child placed with the employee for adoption. However, employers are only required to provide paid leave to one of two different eligible employees if both would be using the benefits.
When leave is foreseeable, the employee must provide their employer with at least 30 days’ notice before leave begins. If leave is not foreseeable, notice must be given as soon as practicable. Employers cannot penalize employees for taking leave.
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. © 2022 ManagEase
California: Individual PAGA Arbitration Enforceable!
/in HR Alerts /by ManagEaseAPPLIES TO
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June 15, 2022
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In Viking River Cruises v. Moriana, the U.S. Supreme Court recently said that individual employee Private Attorney General Act (PAGA) claims are arbitrable when based on a valid arbitration agreement. This ruling specifically addressed the previously existing Iskanian rule put forth by the California Supreme Court, which said that individual PAGA claims could not be arbitrated according to agreement because they could not be separated from nonindividual (“representative”) PAGA claims. The U.S. Supreme Court said that the Iskanian rule conflicted with and was preempted by the Federal Arbitration Act (FAA).
There, an employee signed an arbitration agreement with class action waiver. The agreement specifically called for individual PAGA claims to be arbitrated. Under the FAA, arbitration agreements must be treated the same as any other contract. However, the Iskanian rule prohibited parties from mutually agreeing to arbitrate the individual portion of a PAGA claim. Because of this conflict between the FAA and Iskanian, the Supreme Court said the rule is preempted by the FAA. Ultimately, the Court said that employee PAGA claims can be divided (through arbitration agreements) into (1) individual PAGA claims resolved via arbitration and (2) nonindividual PAGA claims resolved in court.
Moreover, PAGA itself does not allow a representative claim to survive in court without the individual portion of the claim. The Court said that, because of this statutory limitation, the remaining representative portion of the PAGA court claim had to be dismissed. In short, the only piece of the PAGA claim that survived was the individual claim subject to the arbitration agreement. However, the Court left open the possibility that state legislators may revise PAGA to allow representative actions to stand on their own.
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. © 2022 ManagEase
California: Meal and Rest Premiums are New Avenue for Penalties
/in HR Alerts /by ManagEaseAPPLIES TO
All Employers with CA Employees
EFFECTIVE
May 23, 2022
QUESTIONS?
Contact HR On-Call
(888) 378-2456
In Naranjo v. Spectrum Security Services, Inc., the California Supreme Court stated that meal and rest premiums can be the basis for waiting time penalties and inaccurate wage statements. Meal and rest premiums are required to be paid when nonexempt employees do not take the statutorily required meal or rest periods. The Court stated that meal and rest premiums are wages, and therefore subject to derivative wage and hour claims.
There, an employee claimed the employer failed to provide the required meal and rest periods, subjecting the employer to pay meal and rest premiums. As part of his claim, the employee sought waiting time penalties for failure to pay the premiums and wage statement violations for failing to properly identify wages earned.
The Court reasoned that the premiums are intended to provide compensation for the missed meal or rest period as a legal remedy, and wages for the work the employee performed during the meal or rest period. Further, the Court confirmed prior precedent that wage statements must include wages earned, not just wages actually paid. Having identified the premiums as wages, the Court then linked payment deficiencies to remedies for failure to pay or properly document the earnings.
Notably, the Court reinforced its prior ruling in Murphy v. Kenneth Cole Productions, Inc., stating that meal and rest premiums are akin to overtime premiums. The portion of Murphy that excludes meal and rest premiums from the regular rate of pay seemingly remains intact. Employers should review this ruling with legal counsel for guidance on how it may impact their business.
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. © 2022 ManagEase