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Employment Law Blog

My employee didn’t ask for FMLA leave — do I have to offer it?

Under the Family and Medical Leave Act (FMLA), many employees are entitled to take up to 12 weeks of unpaid, job-protected leave per year for certain family and/or medical reasons, including:

  • The birth and care of a newborn child
  • The placement of a child with the employee through adoption or foster care
  • The care for the employee’s child, parent or spouse who has a serious health issue
  • A serious health issue suffered by the employee, which leads to the inability to work

DOL Expected To Clarify How FLSA Overtime Rates Are Determined

Under the federal Fair Labor Standards Act, non-exempt employees are entitled to the premium overtime rate of 1-1/2 times their regular rate of pay for all hours worked past 40 in a single workweek. The regular rate of pay is determined by adding up all earnings, including non-discretionary bonuses and some other payments, and dividing by the number of hours worked.

What other payments have to be included? According to the Department of Labor, this question has resulted in excess litigation and so should be clarified. Employers incentivize and remunerate their employees in many ways, including both monetary rewards and other benefits. Increasingly, they are also offering non-traditional compensation, ranging from reimbursing rides through ride-hailing services to offering private equity pay.

Are Your Employees Checking Their Email At Home? Be Careful.

Whether surfing the web on their smartphones or checking their email on their laptops, people today are more connected than ever. But, while these devices have certainly made life much easier in many respects, they have also helped blur the lines when it comes to whether a person is considered "working" under the law -- and whether this person is therefore entitled to overtime pay.

For example, if employees are checking their emails or responding to work-related texts while at home, should they be paid for this time? Or is this simply something they should be expected to do? Well, the answer is, "it depends."

New Hatch Act Guidance Limits Federal Workers From Certain Speech

Federal employees are prohibited from undertaking partisan political activity while on duty, in the federal workplace or when invoking official authority. This is due to the Hatch Act, a 1939 law aimed at preventing undue interference in elections by federal employees. Bribery, intimidation and coercion of campaign contributions are prohibited by the Act, for example -- as is the use of federal resources for certain political activities, such as campaigning for a particular candidate or party.

The Office of Special Counsel (OSC) is tasked with enforcing the Hatch Act, and it recently issued new guidance on what sorts of political speech would, if undertaken at work, violate the Hatch Act. Unfortunately, the guidance offers few bright-line rules. Moreover, critics argue that the guidance is overbroad and could allow retaliation against federal workers who express their political opinions in good faith. It could also put a chill on lawful types of speech protected by the First Amendment or constrain government whistleblowers.

Trump DOL Focusing More On Employer Compliance Than Crackdowns

The Trump administration's priority for the Department of Labor has been to eliminate regulations thought too costly for businesses to bear. In particular, the administration promised to change how wage and hour law is regulated in the U.S.

Some progress toward that goal has already been made. As we discussed last week, the DOL recently simplified the calculation of tip credits under the Fair Labor Standards Act. Also, the agency is currently reevaluating the FLSA salary threshold for exempt workers.

DOL Policy Makes It Simpler For Employers To Claim Tip Credit

Some employees customarily receive tips, but those tips aren't always in addition to the worker's wage. Many tipped workers are minimum-wage earners, and the law allows some of those tips to be counted toward ensuring they earn that minimum wage.

For example, the federal minimum wage is $7.25 per hour. When a customarily tipped worker such as a waiter or bartender earns tips, the amount they earn can be subtracted from the employer's minimum wage obligation, up to a certain point. The law allows bars and restaurants to pay as little as $2.13 per hour to a tipped worker who earns at least $5.12 per hour in tips.

Google, Facebook End Forced Arbitration After Employee Walkouts

In May, the U.S. Supreme Court ruled in Epic Systems Corp. v. Lewis that individual arbitration clauses in employment contracts are enforceable under the Federal Arbitration Act. Therefore, employers can require, as a condition of employment, employees to agree to resolve their employment law claims individually in arbitration rather than taking them to court or attempting to act collectively.

Individual arbitration is widely considered to be advantageous to employers for a number of reasons, so employers were expected to begin requiring it broadly.

How Can Companies Deal Legally With Employee Opioid Addiction?

With the opioid crisis running rampant, many companies have employees who are suffering from this addiction. According to the National Institute on Drug Abuse, between 8 and 12 percent of those prescribed opioid painkillers will develop an opioid use disorder. The Centers for Disease Control and Prevention reports that over 350,000 people died from opioid overdoses between 1999 and 2016.

There's a fair chance that someone in your organization is dealing with an opioid painkiller addiction. Before you react, you should be aware that the employee may have rights under the Americans With Disabilities Act (ADA) and the Maryland Fair Employment Practices Act (FEPA). A history of drug addiction is considered a covered disability, as may be the underlying condition for which the painkillers were prescribed. Employers cannot discriminate based on disability and must offer reasonable accommodations to employees with covered disabilities.

DOJ Argues That Title VII Does Not Cover Transgender Employees

Title VII of the Civil Rights Act of 1964 is one of our nation's main civil rights law. Among other things, it prohibits covered employers from discriminating in any aspect of employment based on race, color, religion, sex or national origin. Questions have arisen over time, however, about the breadth of the law's coverage when it comes to sex. Is it illegal to discriminate based on homosexuality? Against someone who doesn't comply with sexual stereotypes? Against transgender people?

The Equal Employment Opportunity Commission and many courts have found that issues such as pregnancy, sexual orientation and gender non-conformity are not just related to gender but are crucial to the definition of gender. Therefore, these aspects of gender are protected by Title VII.

Employee, Employer Groups Testify On DOL's Proposed Overtime Rule

In 2016, the Obama administration's Labor Department proposed a change to the overtime rule in the federal Fair Labor Standards Act. That change would have increased the exempt salary threshold, which is the minimum amount employees must earn in order to be classified as exempt from the FLSA's overtime requirement. However, the change was blocked by an appellate court. Now, the Trump administration's DOL is considering its own changes to the overtime rule, and employer and employee groups testified about their concerns at an Oct. 17 hearing at the DOL.

The 2016 rule would have increased the exempt salary threshold from its current level of $23,660 to $47,476, or nearly double. (To be exempt, workers not only meet the salary threshold but must also meet a specific exemption, such as the executive, administrative or professional exemptions defined in the FLSA.)

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