Check out my PowerPoint presentation BYOD on the legal risks of a Bring Your Own Device Policy and guidelines for drafting a BYOD Policy.
Tennessee Employment Law
Providing practical advice and legal compliance for employers in Tennessee and beyond. —by Chad Hatmaker
What You Need to Know About EEO-1 Reporting
The Employer Information EEO-1 survey is a mandatory annual filing for many employers. All private employers who are subject to Title VII and have 100 or more employees must file an EEO-1. An employer who has less than 100 employees but is owned, affiliated or controlled by another company such that the two are viewed as one employer with a total of 100 employees must also file an EEO-1. State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs are exempt from the filing requirement.
All federal private employer contractors (who do not qualify for a limited exemption) with 50 or more employees who are prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more, or serve as a depository of government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes must also file an annual EEO-1.
The EEO-1 must be filed annually no later than September 30th. For more information on EEO-1 reporting go to http://www.eeoc.gov/employers/eeo1survey/2007instructions.cfm
Does the FMLA Provide Leave To Care For A Child That Becomes Disabled As An Adult?
The FMLA entitles eligible employees to take a total of 12 workweeks of leave during any 12 month period to care for a son or daughter with a serious health condition. Son or daughter is defined as any biological, adopted, foster or stepchild, legal ward, or a child of a person standing in loco parentis who is: (1) under 18 years of age; and (2) 18 years of age or older and incapable of self-care because of a mental or physical disability. Does the FMLA apply if the child becomes disabled and incapable of self care after he or she turned 18?
While the FMLA and its regulations are silent on this issue the US Department of Labor’s Wage and Hour Division (WHD) clarifed it in a recent opinion. The WHD, relying on the legislative history of the FMLA, opined that the age that the child becomes disabled is irrelevant in determining whether the employee is entitled to leave to care for the child. As a result, employers must grant FMLA leave to eligible employees who need to care for a disabled adult child, regardless of when the child becomes disabled.
Are More ACA Delays On The Way?
The U.S. House of Representatives will vote next week on delaying the Affordable Care Act’s mandate that all Americans obtain health insurance, Republicans said Thursday. Speaker Boehner emphatically stated that such a delay is the only fair response to the 1 year postponement of the ACA requirement for “large employers” to supply coverage.
What employers really want to know is will the definition of full time employee under the ACA be changed? Many employers are pushing for the hour threshold to be increased from 30 to 40. An increase to 35 however, would still be significant and is an obvious compromise between the two positions. Stay tuned for further updates.
Obama Puts the Brakes on Obamacare
Late yesterday the Department of Treasury announced that the Obama administration will provide employers that are covered by the Affordable Care Act an additional year before they are required to provide health care coverage to “full time employees” or pay a penalty. Currently, the ACA defines full time employees as those employees who work an average of 30 hours or more per week. This 1 year extension means employers now have until January 1, 2015 before they will have to “pay or play” under the ACA.
The extension is based on the complexity of the requirements and the need for more time to implement them effectively. It will be interesting to see whether any other changes to the ACA, such as a change in the definition of full time employees, occurs before January 1, 2015. Stay tuned for further updates!
Supreme Court Narrowly Defines Supervisor
In a victory for employers yesterday the U.S. Supreme Court adopted a narrow, bright-line standard to determine who counts as a supervisor in Title VII harassment suits.
In Vance v Ball State, a 5-4 decision, the Court affirmed summary judgment in a racial harassment suit and held that an employee only counts as a supervisor who can render an employer vicariously liable under Title VII if the employee is empowered by the employer to take tangible employment actions against the victim. These tangible actions include hiring, firing, promoting, reassigning significantly different tasks or causing changes to benefits. As a result, an employee who merely directs another worker’s day-to-day activities does not qualify as a supervisor in a Title VII harassment suit.
While this is certainly good news for employers, employers should still focus on preventing harassment in the first place. Adopt a clear policy prohibiting harassment which contains an effective reporting mechanism and enforce that policy. Train your workforce on what constitutes harassment and how to prevent it and report it in accordance with your policy. And if a complaint is made, investigate it promptly and thoroughly and take effective corrective action based on the results of your investigation. Remember, an ounce of prevention is worth a pound of cure.
Fifth Circuit Holds Title VII Protects Nursing Mothers From Being Fired For Expressing Breast Milk
Recently the U.S. Court of Appeals for the Fifth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act, protects nursing mothers from being fired for lactating or expressing breast milk. The plaintiff was allegedly fired after asking to use a breast pump at work. In reaching its decision the Court held that firing someone because of lactation or breast pumping is sex discrimination.
This is a big victory for the EEOC, who brought the case on behalf of the plaintiff. This win also highlights one of the EEOC’s priorities in its Strategic Enforcement Plan, which is to identify emerging areas in equal employment law, including pregnancy-related issues.
Most employers know that the Fair Labor Standards Act was amended in 2010 to require them to provide both a reasonable break time and a place, other than a bathroom, for an employee to express breast milk for up to a year after a child’s birth. The Fifth Circuit has now made it clear that Title VII also protects employees who are fired for expressing breast milk.
Tennessee Broadens Definition of Misconduct Under Unemployment Law
Recently the Tennessee General Assembly broadened the definition of misconduct which will disqualify a claimant from receiving unemployment compensation. Under the expanded definition misconduct now includes any conduct constituting a criminal offense for which the claimant has been convicted or charged that involves dishonesty arising out of the claimant’s employment or was committed while the claimant was acting within the scope of employment.
This amendment is another win for Tennessee employers, and furthers the General Assembly’s efforts to tighten the unemployment belt.
Comp Time for Private Employers?
Recently the U.S. House of Representatives passed the Working Families Flexibility Act which would allow employers to offer compensatory time off ( comp time) in lieu of overtime. Under the bill comp time would be offered at a rate of 1.5 hours per hour of overtime worked and the employee and employer would have to agree in writing to the comp time arrangement. To be eligible an employee would have to work a minimum of 1,000 hours within the preceding 12 months.
Employees could accrue up to 160 hours of comp time a year and would be permitted to use their comp time upon request within a reasonable time, so long as the usage would not unduly disrupt the employer’s operations. Any unused comp time could be cashed out at the end of each year.
This bill faces strong opposition from labor unions, congressional Democrats and the White House. As a result, comp time is unlikely to be an option for private employers in the near future. Private employers must continue to pay overtime for all time worked in excess of 40 hours in a work week in order to comply with the FLSA.
Tennessee Employment Law 