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Nudge, Nudge. OSHA Revises Injury and Illness Recordkeeping and Reporting Requirements

by Martin Salcedo, Esq. - The Human Equation on 7/7/2016
workplace safety is important and OSHA wants to regulate any accidents

Did you know that each year there are more than 3 million serious (requiring more than first aid) workplace injuries and illnesses? Even though the Occupational Safety and Health Act requires employers to provide safe and healthy workplaces, the number of injuries and illnesses remains unacceptably high. To help combat this problem, the Occupational Safety and Health Administration (OSHA) recently revised various workplace safety regulations.

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New White Collar Overtime Exemption Rules Are Coming...Now What?

by Martin Salcedo, Esq. - The Human Equation on 6/15/2016
Excited Employer FLSA

On December 1, 2016, employers will have to pay more to take advantage of the Fair Labor Standards Act’s (FLSA) so-called white collar overtime exemptions. To prepare for the upcoming change, employers need to know whether and to what extent they will be affected by the new overtime exemption regulations.

The new rules focus primarily on the minimum salary and compensation levels needed to qualify for the FLSA’s executive, administrative, professional and computer employee overtime exemptions. Employers can ask the following questions to determine the potential impact of the new overtime rules before it’s too late.

Are there any employees classified as exempt under one of the FLSA’s white collar overtime exemptions? If no, you should not be affected by the higher standard salary levels under the new rules. If yes, move on to the next question. More...

OSHA Issues New Reporting and Recordkeeping Rules

by Martin Salcedo, Esq. - The Human Equation on 10/1/2014
doctor holding medical records

Employers will soon have new rules to follow after experiencing workplace injuries and illnesses. The Occupational Safety and Health Administration (OSHA) recently published regulations regarding the reporting and recordkeeping requirements under the Occupational Safety and Health Act’s (“Act”). These new rules, which become effective on January 1, 2015, modify an employer’s obligation to report workplace injuries and illnesses to OSHA and to routinely keep records of injuries and illnesses.

Reporting Requirements

Though a majority of workplace injuries and illnesses do not have to be reported to OSHA, some do. Like the current rules, the new rules require employers to notify OSHA within 8 hours of an employee’s work-related death. Under the new rules, employers are no longer required to notify OSHA of any work-related hospitalization of 3 or more employees. However, under the new rules, employers will be required to notify OSHA within 24 hours of any work-related incident that results in:

  • the in-patient hospitalization of one or more employees (the formal admission to a hospital or clinic for care or treatment, rather than merely observation or diagnostic testing);
  • an employee’s amputation (the traumatic loss of a limb or other external body part); or
  • the loss of an employee’s eye.
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EEOC Updates Pregnancy Discrimination Act Enforcement Guidance

by Martin Salcedo, Esq. - The Human Equation on 8/27/2014
pregnant woman's stomach

In 1978, the Pregnancy Discrimination Act (PDA) was added to Title VII of the Civil Rights Act to prohibit employment discrimination based on pregnancy, childbirth and related medical conditions. In July 2014, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding pregnancy in the workplace. It has been over 30 years since the EEOC last issued any PDA guidance.

The EEOC’s guidance identifies two fundamental requirements of the PDA:

  • Covered employers, which are generally employers with 15 or more employees, may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions.
  • Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The PDA, which covers all aspects of employment, including firing, hiring, promotions and fringe benefits (leave, health insurance, etc.), prohibits discrimination based on an employee’s:

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When Does Disability Leave Become an Unreasonable Accommodation?

by Martin Salcedo, Esq. - The Human Equation on 7/9/2014
court room

When has an employer done enough to avoid liability for disability discrimination? Though hard and fast rules are rare in employment discrimination cases, particularly those involving disabilities, the Tenth Circuit Court of Appeals recently held that employers are almost never required to provide more than 6 months leave to an employee with a disability.

The quality versus cost argument is nothing new especially when it comes to insurance. Consumers who pay less tend to get less, whether in the form of coverages, limits or financial security. And, when people choose cost over quality, it usually means they are uninformed about what they really need.

In Hwang v. Kansas State University, an assistant professor working under a one year employment contract was diagnosed with cancer. KSU gave Ms. Hwang a six-month paid leave of absence so she could get treatment. On the advice of her doctor, Ms. Hwang requested additional time off. According to Ms. Hwang, KSU refused her request and effectively terminated her employment.

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Warning: Whistleblowers Must be Handled with Care

by Martin Salcedo, Esq. - The Human Equation on 6/4/2014
judge's gavel

Though dealing with a disgruntled employee can be hard, various anti-retaliation protections make it even harder when an employee’s complaints or conduct is protected by law. A 2013 Congressional Report identified 40 different federal whistleblower and anti-retaliation laws, including:

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Is There a Bully in Your Workplace?

by Martin Salcedo, Esq. - The Human Equation on 4/23/2014
workplace bully

Chances are there is a bully in your workplace, and that’s bad for business. The Workplace Bullying Institute (WBI) defines bullying as repeated mistreatment involving physically or verbally abusive conduct that is threatening, intimidating or humiliating, or that interferes with or prevents work from getting done. According to the WBI’s 2014 Workplace Bullying Survey:

  • 27% are or have been victims of workplace bullying
  • 21% have witnessed workplace bullying
  • 23% are aware of workplace bullying
  • 65 million workers are affected by workplace bullying

Though the frequency of workplace bullying may come as a surprise to some, the consequences should not. Workplace bullying typically increases employee turnover, decreases productivity, reduces job satisfaction, undermines morale, increases workers’ compensation costs and increases employment-related litigation costs.

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Religious Garb and Grooming Accommodations under Title VII

by Martin Salcedo, Esq. - The Human Equation on 3/12/2014
woman putting on sari

According to the Equal Employment Opportunity Commission, charges of religious discrimination brought under Title VII of the Civil Rights Act are steadily increasing. These charges often involve religious dress and grooming practices, such as:

  • wearing religious clothing or articles, such as a Muslim hijab (headscarf), a Sikh turban or a Christian cross
  • observing a religious prohibition against wearing certain garments, such as a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts
  • adhering to shaving or hair length observances, such as a uncut hair and beard (Sikh), dreadlocks (Rastafarian) or peyes/side locks (Jewish)

    Title VII, which protects all aspects of religious observance, practice and belief, defines religion very broadly. It protects not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.

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Grading the EEOC in 2013

by The Human Equation, Inc. on 1/29/2014
employee and employer

The Equal Employment Opportunity Commission (EEOC) is on a mission. According to its Strategic Plan for Fiscal Years 2012 through 2016, the EEOC is focused on:

  • combating employment discrimination with administrative (investigation, mediation, conciliation) and litigation enforcement mechanisms
  • preventing employment discrimination with education and outreach activities
  • delivering excellent and consistent services with effective systems.

The EEOC’s enforcement objectives and activities provide valuable insight into what employers should pay special attention to when dealing with equal employment opportunity matters. According to its Fiscal Year 2013 Performance and Accountability Report, the EEOC:

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Department of Labor Extends FLSA Protections to Direct Care Workers

by Martin Salcedo, Esq. - The Human Equation on 10/2/2013
elderly couple

On September 17, 2013, the Department of Labor (DOL) announced a final rule that will extend the Fair Labor Standards Act’s minimum wage and overtime protections to most of the nation’s workers who provide home care assistance to elderly people and people with illnesses, injuries and disabilities. The DOL estimates that when it becomes effective on January 1, 2015, this new rule will extend the FLSA’s protections to nearly two million direct care workers.

According to the DOL, direct care workers remain among the lowest paid in the service industry because they have been denied minimum wage and overtime compensation under the FLSA’s companionship services exemption. The DOL suggests that courts have applied this exemption too broadly to encompass essentially all workers providing companionship services for those requiring care because of age or infirmity.

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Unlawful Retaliation under Title VII: No More Mixed Messages

by The Human Equation, Inc. on 8/21/2013
workplace discrimination

Title VII prohibits retaliation against employees who engage in protected activity, such as opposing or alleging unlawful workplace discrimination. Those suing for unlawful retaliation must prove that there is a link between the retaliation and their protected activity. But, how strong must the link be? The U.S. Supreme Court recently answered this question in University of Texas Southwestern Medical Center v. Nassar.

In this case, Dr. Nassar alleged that his supervisor was biased against him on account of his religion and ethnic heritage. His supervisor once remarked that “Middle Easterners are lazy,” and, upon hearing that another physician of Middle Eastern descent was hired, the supervisor said that the hospital had “hired another one.” Dr. Nassar lodged several complaints about his treatment. Thereafter, a series of events led to Dr. Nassar leaving the hospital for another position. More...

Who is a Supervisor under Title VII? Why does it Matter?

by Martin Salcedo, Esq. - The Human Equation on 7/17/2013
supervisor and employee

Who is considered a supervisor under Title VII? Since our last article discussing Vance v. Ball State University, the U.S. Supreme Court has given us the answer. According to the Court, a supervisor is a person

empowered by the employer to take tangible employment actions against the victim; to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Vance involved allegations of racial harassment and discrimination in violation of Title VII. Though the parties disputed the precise nature and scope of the harasser’s duties, it was clear that the harasser did not have the power to hire, fire, demote, promote, transfer or discipline the plaintiff. Given the harasser’s inability to take a tangible employment action against the plaintiff, the Court held that the harasser does not qualify as a supervisor under Title VII. More...

EEOC Focusing on Employers Using Criminal Background Checks

by Martin Salcedo, Esq. - The Human Equation on 6/18/2013
background check

In a previous article we discussed the Equal Employment Opportunity Commission’s (EEOC) position on the use of arrest and conviction records in the employment context. According to the EEOC, Title VII of the Civil Rights Act (Title VII) prohibits the use of arrest and conviction records in a manner that discriminates on the basis of race, color, national origin, religion, or sex. The EEOC recently reaffirmed its position by filing two lawsuits involving the use of criminal background records.

BMW Manufacturing Co.

The EEOC claims that BMW’s criminal conviction policy, which disproportionately screened out African Americans, is not job related and consistent with business necessity. The lawsuit alleges that BMW’s policy is a blanket exclusion that does not provide for an individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the workers’ respective positions. More...

The New Form I-9: What’s Different?

by Martin Salcedo, Esq. - The Human Equation on 4/30/2013
paperwork

Those of you following us on Facebook or Twitter know that the U.S. Citizenship and Immigration Service (USCIS) recently revised the Employment Eligibility Verification Form (Form I-9). Though optional since early March 2013, the revised Form I-9 will become mandatory on May 7, 2013. As of this date, employers must stop using prior versions of the Form I-9 and begin using the version dated 03/08/13. (The version date can be found at the bottom of the form.)

I-9’s are used by employers to verify the identity and employment authorization of every new employee hired in the United States, regardless of citizenship. This process is authorized by the Immigration Reform and Control Act to preclude the unlawful hiring, recruiting or accepting a fee for the referral of aliens who are not authorized to work in the United States. More...

Individual Liability under the Fair Labor Standards Act

by Martin Salcedo, Esq. - The Human Equation on 4/3/2013
alarm clock

Did you know that individuals can be held personally liable for violations of the Fair Labor Standards Act (FLSA)? The FLSA’s broad definition of employer includes “any person acting directly or indirectly in the interests of an employer in relation to an employee.” The Eleventh Circuit Court of Appeals recently considered when it is appropriate to hold someone personally liable for wage and hour violations under the FLSA.

In Lamonica v. Safe Hurricane Shutters, Inc., former employees sued their employer to recover unpaid overtime wages under the FLSA. The employees also sued two of the corporate-employer’s directors, arguing that they sufficiently controlled the corporation to justify holding them personally liable under the FLSA. To support their case against the directors, the employees showed that: More...

Is Your Unpaid Intern Really an Employee?

by Martin Salcedo, Esq. - The Human Equation on 3/12/2013
woman training man in the workplace

The Fair Labor Standards Act (FLSA) establishes federal standards for minimum wage and overtime compensation. Under the FLSA, interns in the for-profit private sector will generally be viewed as employees entitled to compensation except in very limited circumstances.

Whether an individual working in an internship or training program is considered an employee that should be paid minimum wage and overtime compensation under the FLSA depends on the facts and circumstances. When making this determination, the following criteria must be applied to each particular situation:

  1. The internship, even though it includes performing actual work, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern works under close supervision of existing staff and does not displace regular employees;
  4. The employer derives no immediate advantage from the activities of the intern, and its operations may occasionally be impeded by the intern;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
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Employers May See More Sexual Harassment Lawsuits

by Martin Salcedo, Esq. - The Human Equation on 11/20/2012

An employer’s liability for sexual harassment under Title VII of the Civil Rights Act depends on whether the harasser is a supervisor. If the alleged harasser is the victim’s co-employee, the employer may have various defenses to liability. However, if the harasser is a supervisor, Title VII’s strict liability standard may be triggered and the employer may be left defenseless.

So, who is considered a supervisor under Title VII?

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ADA Court Ruling Shocks Employers - Reassignment may be a Reasonable Accommodation

by Martin Salcedo, Esq. - The Human Equation on 10/17/2012

The Equal Employment Opportunity Commission (EEOC) sued United Airlines since disabled employees who could no longer do their jobs had to compete for vacant positions instead of being automatically reassigned. According to the EEOC, this practice violates the Americans with Disabilities Act (ADA).

When the EEOC made a similar argument to the Seventh Circuit Court of Appeals in 2000, the Court held that the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant—provided it is the employer's consistent and honest policy to hire the best applicant for the particular job in question.

Undeterred, the EEOC again asked the Court to answer the same question. This time around, the EEOC got a different answer. More...

Is Overtime Pay Required for Managers?

by Martin Salcedo, Esq. - The Human Equation on 9/17/2012

Employers who rely on job titles when determining whether an employee is exempt from federal overtime pay requirements risk being named as defendant in a wage and hour lawsuit.

Employers often assume that the Fair Labor Standards Act’s (FLSA’s) executive exemption automatically applies to any employee given the title of “manager.” The reality, however, is that the manager title has virtually nothing to do with whether an employee qualifies for the executive exemption. More...

Genetic Information Nondiscrimination Act: Answers to Your GINA Questions

by The Human Equation, Inc. on 3/7/2011
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which became effective November 21, 2009, prohibits the use of genetic information in employment, restricts covered entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Under GINA, the Equal Employment Opportunity Commission (EEOC) is required to issue implementation regulations within one year of the effective date. On November 9, 2010, the EEOC issued its final regulations, which became effective on January 10, 2011.More...
The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation are not updated after initial publication and may not contain the most current information available.

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