Fourth Circuit: FLSA Lodging Credit Still Applies to Hours-Worked Agreements

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All Employers of MD, NC, SC, VA, and WV Employees

EFFECTIVE

January 25, 2018

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The FLSA requires employees to be paid for all hours worked, and permits employers and employees to agree on the number of hours worked when the employee lives on the employer’s premises, provided that the FLSA’s wage and hour requirements are followed (e.g., minimum wage, overtime paid, etc.). In Balbed v. Eden Park Guest House, LLC, the Fourth Circuit Court of Appeal stated that even when an employer and employee enter into a reasonable agreement of hours worked, the FLSA’s requirements for calculating the lodging credit are still enforceable.

Seventh Circuit: Defines Application of the Ministerial Exception in Discrimination Claims

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All Employers with IL, IN, WI Employees

EFFECTIVE

February 13, 2018

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In Miriam Grussgott v. Milwaukee Jewish Day School, Inc., the Seventh Circuit Court of Appeal used a “totality of circumstances” approach to determine that a Hebrew teacher’s position was ministerial in nature, rendering her ineligible to pursue an employment discrimination claim under the Americans with Disability Act.

In 2012, the U.S. Supreme Court used four factors to determine whether an employee’s role is ministerial: (1) formal job position title, (2) substance of the position based on the title, (3) the employee’s use of the title, and (4) the religious functions the employee performed for the religious institution. Here, the Seventh Circuit Court of Appeal used these factors to analyze the employee’s claim, and indicated that the factors must be reviewed under the totality of the circumstances. Specifically, although the employee’s job title of “Hebrew teacher” was not ministerial nor did she hold herself out as a religious leader, when looking at the totality of the circumstances, the court stated that the facts supporting the substance of the job title and her actual job functions outweighed those considerations.

The Seventh Circuit’s decision emphasizes the need to clearly communicate an employee’s job title, duties, and the organization’s expectations.

Action Items

  1. Have job descriptions reviewed for consistency with ministerial duties, if applicable.
  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

California: New Advisory Notice and FAQ for Immigration Enforcement Actions

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All Employers with CA Employees

EFFECTIVE

January 1, 2018

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On February 13, 2018, the California Attorney General and Labor Commissioner issued documents intended to assist California employers in complying with AB 450.  Already in effect as of January 1, 2018, the Immigrant Worker Protection Act requires California employers to limit federal immigration enforcement access to non-public areas in the worksite, among other things.

California: State Supreme Court Sets Formula to Calculate Overtime on Flat, Non-Production Bonuses

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All Employers with CA Employees

EFFECTIVE

March 5, 2018

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(888) 378-2456

In Alvarado v. Dart Container Corp., the California Supreme Court stated that when calculating the per-hour value of a flat, non-production bonus for purposes of overtime, the total compensation must be divided by the number of non-overtime hours the employee actually worked during the pay period.

Maine: Employer Drug Testing Limited by Recreational Marijuana Law

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All Employers of ME Employees

EFFECTIVE

February 1, 2018

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(888) 378-2456

Maine citizens voted to legalize recreational marijuana use in 2016. While recreational use of marijuana is permitted, the law allows employers to prohibit the consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace, and employers could still maintain substance abuse policies at work.  However, the drug testing provision related to recreational marijuana use, effective February 1, 2018, significantly limits an employer’s ability to perform drug tests.

Kansas City, MO: New Ban-the-Box Ordinance

APPLIES TO

All Employers of 6+ Kansas City Employees

EFFECTIVE

June 9, 2018

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(888) 378-2456

As of June 9, 2018, employers of Kansas City employees will be prohibited from inquiring into or using criminal record information when making employment decisions.  This ordinance amends the Kansas City Human Relations Act, and follows in the footsteps of a similar ordinance passed in 2014, eliminating such criminal history inquiries when considering applicants for government positions.

New York City, NY: Employees Must be Allowed to Make Limited Changes to Work Schedules

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All Employers of New York, NY Employees

EFFECTIVE

July 18, 2018

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Piling on top of New York City’s many regulations controlling employee scheduling for fast food and retail services, a new law permits eligible employees of any industry to make two temporary schedule changes per year for personal events.  Specifically, Introduction No. 1399-2016 requires employers to allow eligible employees to make two temporary schedule changes per calendar year.  Unlike the Fair Work Week bills, the new regulations broadly cover nearly all industries.

To be eligible, employees must have completed 120 days of employment and work at least 80 hours per calendar year within New York City. Schedule changes must be allowed for certain personal events, including: (1) the need for a caregiver to provide care to a minor child or care recipient; (2) to attend a legal proceeding or hearing for subsistence benefits that the employee, a family member, or employee’s care recipient receives; or (3) any circumstance constituting permissible use of New York City safe or sick time. The regulations also have specific employee notice, employer response, and timing requirements. Employers should update schedule change procedures to avoid penalties for violation of this new regulation.

Action Items

  1. Review the text of the bill here.
  2. Have supervisors and managers trained on handling requests for temporary schedule changes.
  3. Implement processes to track employee usage of temporary schedule changes.
  4. 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

Austin, TX: Paid Sick Leave Begins October 1, 2018, Barring Opposition from the Legislature

APPLIES TO

All Employers of Austin, TX Employees

EFFECTIVE

October 1, 2018

QUESTIONS?

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(888) 378-2456

On February 16, 2018, the Austin City Council voted to approve mandatory paid sick leave.  The ordinance is pending the mayor’s signature, and will require employers to provide protected time off in line with states like California, Oregon, or recently, Rhode Island—assuming Texas lawmakers do not nip the ordinance in the bud.  State Representative Paul Workman and State Senator Donna Campbell have expressed opposition to the ordinance and publicly promised to overturn it. Below, we highlight key provisions from the draft paid sick leave (“PSL”) ordinance.

Spokane, WA: New Ban-the-Box Ordinance Limits Criminal History Inquiries

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All Employers of Spokane, WA Employees

EFFECTIVE

June 14, 2018

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(888) 378-2456

Employers based in Spokane, Washington will soon need to comply with new ban-the-box provisions.  With narrow exceptions, the Fair Chance Hiring Act prohibits employers from broadly disqualifying or making employment decisions based solely on criminal history.

Wisconsin: Temporary Workers Can Now Sue Employers for Workplace Injuries

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All Employers of WI Employees

EFFECTIVE

January 26, 2018

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(888) 378-2456

In In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company, the Wisconsin Court of Appeals recently stated that a temporary worker could opt out of making a workers’ compensation claim under the Wisconsin Workers’ Compensation Act (the “Act), and bring a tort claim against the employer instead.