October Updates

U.S. Department of Labor Issues Updated FMLA Forms

Effective September 4, 2018, the U.S. Department of Labor published new Family Medical Leave Act notices and certification forms on its website. The new forms do not contain any substantial revisions other than a revised expiration date. Employers using these forms should update to the new version moving forward.

EEO-1 Reporting Deadline Still March 31st

The Equal Employment Opportunity Commission (EEOC) requires Employers with over 100 employees, and federal contractors with at least 50 Employees, to submit their EEO-1 report by the annual deadline of March 31^st. Earlier this year there were proposed changes to the report that were later rejected by the Office of Management and Budget; however, the filing deadline of March 31^st stayed in place. Therefore, the EEO-1 report for 2018, which captures workforce demographic data including race, gender, EEO-1 job category, and physical location, is currently due on March 31, 2019. Given that the report captures demographic data from October 1^st thru December 31^st, now is the perfect time to ensure you are prepared to submit this report next year.

NLRB: E-Verify Enrollment is a Mandatory Subject of Bargaining

On August 27, 2018, the National Labor Relations Board (NLRB) stated an employer violated federal law by enrolling in the E-Verify program without negotiating this voluntary enrollment with the employees’ union, because voluntary E-Verify enrollment was a “mandatory subject of bargaining.” Employers in collective bargaining environments should take care if implementing E-Verify in its hiring process.

IRS Updates Paid Family Leave Tax Credit

On September 24, 2018, the IRS issued Guidance in Notice 2018-71 for the Paid Family Leave Tax Credit. The Guidance is essentially an FAQ on who is an employer, Family and Medical Leave, minimum paid leave requirements, and calculating and claiming the credits. Employers should review the new Guidance if seeking to take advantage of the tax credit.

Sixth Circuit: Educational Institution’s Investigation Procedures Challenged in Title IX Case

On September 7, 2018, in Doe v. Baum, the Sixth Circuit Court of Appeal stated that written witness statements are not a sufficient replacement for a live hearing and ability to cross-examine witnesses in the presence of a neutral fact-finder, in Title IX cases. Rather, “if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.” There, a University of Michigan student claimed he was denied due process in the University’s investigation into a claim of his alleged sexual assault when it overturned an investigator’s finding on appeal without holding a hearing. Although Doe is not clear on what type of hearing is required or how cross-examination should occur, Title IX educational institutions must take care how they conduct investigations in order to comply with procedural requirements. Applicable institutions are recommended to have investigation procedures reviewed for compliance.

Seventh Circuit: Potential Back Pay in Hostile Work Environment Claims

In EEOC v. Costco Wholesale Corp., an employee who was forced to take a medical leave of absence for emotional distress arising from hostile work environment may be entitled to back pay for the duration of her leave. There, a customer engaged in inappropriate behavior towards the employee for over a year, including stalking the employee, asking her personal questions, and attempting to touch her.  The employee reported the customer’s behavior to her manager and filed a police report before going on leave.  Costco investigated the incident, initially instructing the harasser to shop at a different Costco before ultimately terminating his Costco membership after another altercation at a different Costco warehouse.  The employee was later terminated when her unpaid medical leave extended beyond 12 months.

According to the Seventh Circuit, in order to obtain backpay, the victim of the harassment must establish that “her working conditions were so objectively intolerable that they forced a change in employment status—here, from regular employment to unpaid leave.” Backpay is only available up to the date of termination, and not beyond. As a result, the district court will now be tasked with determining how much, if any, back pay the employee is entitled to for the duration of her involuntary leave.

Ninth Circuit Affirms DOL Guidance on “20% Rule” for Tipped Employees

On September 18, 2018, the Ninth Circuit en banc reversed an earlier decision that rejected U.S. Department of Labor guidance on the “20% Rule”, stating that the U.S. Department of Labor’s (DOL) guidance deserves deference.  The “20% Rule” provides that tipped employees who spend over 20% of their workweek performing non-tip earning tasks must be compensated for such time at the minimum wage, and that no tip credit may be taken for such time.

In Marsh v. J. Alexanders’s LLC, an employee working as a server in a food service establishment spent over 20% of his time performing untipped tasks, such as cleaning bathrooms, cutting lemons and limes, and taking out the trash.  Based on the DOL guidance, the employer could not take a tip credit for the non-tipped portion of time, meaning the employee was entitled to full minimum wage for any time spent completing non-tipped duties. Employers should revisit their tipping rules and payroll procedures consistent with the new ruling.

California: IMPORTANT – Update on How Split Shifts Are Paid

The Department of Industrial Relations’ Frequently Asked Questions on split shifts was recently updated on how split shifts must be paid. It now reads:

The split shift premium is one hour at the state minimum wage, or the local minimum wage if there is one, whichever is greater. Any money earned over and above the state, or local, minimum wage will be credited towards the employer’s obligation to pay the split shift premium.

Employers should review the updated FAQ and stated example under Question 6.  Note that applicable Wage Orders were not updated with similar language. Employers should review this new FAQ with legal counsel when updating payroll policies and procedures.

San Francisco, CA: Update Fair Chance Ordinance Notice/Poster

On September 27, 2018, San Francisco released an updated version of its Fair Chance Ordinance Notice/Poster. Employers should update this notice which must be provided in advance of a criminal history inquiry, and in connection with other regulatory required disclosures and authorizations.

New York: Home Care Workers’ “13-Hour Rule” is Invalid

On September 26, 2018, the New York Supreme Court in New York County stated that the “13-hour rule” for home care workers is invalid. The rule provides that live-in home care workers must be paid for 13 hours out of 24 hours worked, provided that workers receive required sleep and meal periods. Previously, this rule was codified on an “emergency” basis for a temporary period, and subsequently extended, by the New York State Department of Labor (NYDOL). The court stated that use of the “emergency” procedure was unwarranted, but did not preclude a Wage Order amendment. The NYDOL is currently taking steps to codify the change in the Wage Order. Continue to look for updates on this topic.

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